                                                                            ACCEPTED
                                                                       01-14-00319-CV
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                  3/16/2015 1:47:49 PM
                                                                   CHRISTOPHER PRINE
                                                                                CLERK

                   NO. 01-14-00319-CV

                 IN THE COURT OF APPEALS            FILED IN
                                             1st COURT OF APPEALS
                          FOR THE                HOUSTON, TEXAS
                 FIRST DISTRICT OF TEXAS     3/16/2015 1:47:49 PM
                        AT HOUSTON           CHRISTOPHER A. PRINE
         _____________________________________       Clerk


                BEVERLY SCOTT, ET AL
                                Appellants
                         v.

ROBIN LYNN ARMSTRONG, M.D., CURTIS J. BICKERS AND
         VUJASINOVIC & BECKCOM PLLC,
                                     Appellees
________________________________________________________

         On Appeal from the 234th Judicial District Court
                     Harris County, Texas
              Trial Court Cause No. 2012-33615
________________________________________________________

     APPELLEE, ROBIN LYNN ARMSTRONG, M.D.’S,
     RESPONSE TO APPELLANTS’ AMENDED BRIEF
________________________________________________________

                         SMITH ADAMS LAW FEEHAN LLP
                         Richard M. Law
                         State Bar No. 12004500
                         Richard@SmithAdamsLaw.com
                         Rainy DeMoss Gibbs
                         State Bar No. 24028292
                         Rainy@SmithAdamsLaw.com
                         1415 Louisiana Street, Suite 3800
                         Houston, Texas 77002-7360
                         Telephone: (713) 652-3200
                         Facsimile: (713) 652-6000
                         ATTORNEYS FOR APPELLEE
                         ROBIN ARMSTRONG, M.D.
                 IDENTITIES OF PARTIES AND COUNSEL

 PRO SE APPELLANTS:
     Beverly Scott, Clara Scott, Sharon Scott, James Scott, Sammie Scott,
     Derrick Scott, Alfred Scott, Sandra Scott, Gwendolyn Carpenter,
     Emma Bell, Carolyn Scott, Michael Scott, Doris Scott, Individually and
     as Next Friend of Eula Mae Scott, Deceased
          c/o Gwendolyn Carpenter
          3271 South Shaver #10102
          Pasadena, Texas 77504

APPELLEES:
     Robin Armstrong, M.D.
     Counsel for Appellee, Robin Armstrong, M.D.:
           Richard M. Law
           Rainy DeMoss Gibbs
           SMITH ADAMS LAW FEEHAN LLP
           1415 Louisiana, Suite 3800
           Houston, Texas 77002
           (713) 652-3200
           (713) 652-6000 (Fax)

      Curtis J. Bickers and Vujasinovic & Beckcom PLLC
      Counsel for Appellee Curtis J. Bickers and Vujasinovic & Beckcom
      PLLC:
            Brian Beckom
            Curtis J. Bickers
            VUJASINOVIC & BECKOM, PLLC
            1001 Texas Avenue, Suite 1020
            Houston, Texas 77002
            (713) 224-7800
            (713) 224-7801 (Fax)

TRIAL JUDGE:
     Honorable Wesley Ward
     234th Judicial District Court
     201 Caroline, 13h Floor
     Houston, Texas 77002



                                     ii
                                 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ................................................. ii

REFERENCES TO THE PARTIES ................................................................. iv

REFERENCES TO THE RECORD ................................................................. iv

INDEX OF AUTHORITIES ................................................................................v

RESPONSE TO ISSUES PRESENTED FOR REVIEW ................................ vi

I.    STATEMENT OF FACTS...........................................................................1

II. SUMMARY OF THE ARGUMENT...........................................................1

III. ARGUMENT AND AUTHORITIES .........................................................2
      A. APPELLEES' AMENDED BRIEF FAILS TO RAISE ANY ISSUE
         WITH THE TRIAL COURT'S RULING ............................................................2

      B. NO FACT ISSUE ON FRAUDULENT CONCEALMENT RAISED ........................4

IV. CONCLUSION AND PRAYER ..................................................................5
CERTIFICATE OF COMPLIANCE ..................................................................6

CERTIFICATE OF SERVICE ............................................................................7




                                                iii
                        REFERENCES TO THE PARTIES

Reference                 Meaning

Appellants/Plaintiffs     Beverly Scott, Michael Scott, James Scott, Emma Bell,
                          Clara Scott, Sammie Scott, Alfred Scott, Sharon Scott,
                          Doris Scott, Gwendolyn Carpenter, Carolyn Scott, Derrick
                          Scott, Sandra Scott, Individually and as Next Friend of
                          Eula Mae Scott, Deceased

Appellee/Defendant        Robin Lynn Armstrong, M.D. (“Armstrong”)



                        REFERENCES TO THE RECORD

      The record in this appeal consists of the Clerks Record and First Supplemental

Clerk’s Record. This Brief uses the following conventions in citing the record:

      Clerk’s Record                           “CR. (page)”

      First Supplemental Clerk’s Record        “CR.Supp. (page)”




                                          iv
                                    INDEX OF AUTHORITIES

CASES

Coll. of the Mainland v. Meneke,
       420 S.W.3d 865 (Tex.App.—Houston [14th Dist.] 2014, no pet h.) ..........3
In re J.R.H.,
       No. 11-09-00321-CV, 2010 Tex. App. LEXIS 9662,
       2010 WL 5093772 (Tex. App.—Eastland Dec. 2, 2010, no pet.) .............3
Jurek v. Herauf,
      No. 14–07–00727–CV, 2009 WL 179204
      (Tex.App.─Houston [14th Dist.] Jan. 27, 2009, no pet.) ..........................3

In re J.R.H.,
       No. 11-09-00321-CV, 2010 WL 5093772
       (Tex. App.—Eastland Dec. 2, 2010, no pet.) (mem. op.) .................... 3, 4
In re L.M.,
      No. 01-11-00137-CV, 2012 WL 2923132
      (Tex.App.─Houston [1st Dist.] July 12, 2012, pet. denied) ......................3
Shah v. Moss,
     67 S.W.3d 836 (Tex. 2001) .....................................................................4

Whittaker v. Manpower,
      No. 14-09-00508-CV, 2009 WL 4667391
      (Tex. App. Dec. 10, 2009) .........................................................................3

CODES/STATUTES
Tex. Code Crim. Proc. Ann. Art 49.04(a).............................................................4
Tex. Code Crim. Proc. Ann. Art 49.06. ................................................................4

RULES

Tex. R. App. P. Rule 38.1(d) ................................................................................ 3
Tex. R. App. P. Rule 38.1(f) ................................................................................ 2
Tex. R. App. P. Rule 38.1(g) ............................................................................... 3
Tex. R. App. P. Rule 38.1(h) ............................................................................... 3
Tex. R. App. P. Rule 38.1(i) ............................................................................. 3
                                                        v
           RESPONSE TO ISSUES PRESENTED FOR REVIEW

      Appellants’ Amended Brief failed to raise a fact issue as to the affirmative
defense of statute of limitations. Accordingly, the trial court properly granted
summary judgment and the ruling should be affirmed.




                                        vi
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

      Appellee, Robin Armstrong, M.D. (hereinafter “Armstrong”), submits this

Response to Appellants’ Amended Brief, in accordance with Rules 28 and 38.6(c)

of the Texas Rules of Appellate Procedure and all local rules of this Court, and asks

this Court to affirm the trial court's granting of Armstrong’s Motion for Interlocutory

Summary Judgment, and dismissing all of Appellants’ claims with prejudice.

      Appellee, Armstrong, incorporates herein to this Response, the Brief of

Appellee, Robin Armstrong, M.D., and the appellate briefs and response/reply briefs

of the other defendants/appellees in this case. Appellee Armstrong submits this

Response with respect to the allegations of fraudulent concealment and “drug

overdose injury” addressed in Appellants’ Amended Brief. [Br. at 4] In support

hereof, Appellee respectfully urges as follows:

                         I.     STATEMENT OF THE FACTS

      Armstrong incorporates herein his Summary of the Facts from his Brief.

                   II.        SUMMARY OF THE ARGUMENT

      Armstrong further incorporates herein his Summary of the Argument from

his Brief.

      Plaintiffs have filed a notice of appeal, an appellate brief and now an

amended appellate brief in this Court; all acts that would suggest an appellate issue
                                          1
was taken with the lower court’s decision. However, none of these filings describes

any error committed by the court below. Because Appellants’ Amended Brief

makes no argument to avoid the statute of limitations, they waived their sole

argument on appeal.

         Even if this Court considers the statute of limitations issue, the trial court was

correct in granting summary judgment. Eula Mae Scott passed away on January 15,

2009. (CR.Supp. 3) Plaintiffs brought suit against Armstrong on November 28,

2012—almost two years too late. (CR.Supp. 3) Plaintiffs failed to meet their burden

to raise a fact issue in response to the conclusively established affirmative defense

of statute of limitations.

                      III.    ARGUMENT AND AUTHORITIES

    A.   APPELLEES’ AMENDED BRIEF FAILS TO RAISE ANY ISSUE WITH THE TRIAL
         COURT’S RULING

         Texas Rule of Appellate Procedure requires that an appellant’s brief contain

certain essential parts, including a statement of the issues presented, 1 a statement of




1
 Tex. R. App. P. Rule 38.1(f) “Issues Presented. The brief must state concisely all issues or points
presented for review. The statement of an issue or point will be treated as covering every subsidiary
question that is fairly included.”
                                                 2
the case, 2 and a summary of the argument. 3 Appellants’ Amended Brief lacks these

components. Their amended brief contains no discernable statement of facts 4 and no

argument section with a “clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). 5 The

Court is not required to review issues or arguments not properly presented. 6 In

appropriate circumstances, the failure to properly brief a matter constitutes a waiver

on appeal. 7 Appellee contends that this is such a case.


2
  Tex. R. App. P. Rule 38.1(d) “Statement of the Case. The brief must state concisely the nature
of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution),
the course of proceedings, and the trial court's disposition of the case. The statement should be
supported by record references, should seldom exceed one-half page, and should not discuss the
facts.”
3
  Tex. R. App. P. Rule 38.1(h) “Summary of the Argument. The brief must contain a succinct, clear,
and accurate statement of the arguments made in the body of the brief. This summary must not
merely repeat the issues or points presented for review.”
4
  Tex. R. App. P. Rule 38.1(g) “Statement of Facts. The brief must state concisely and without
argument the facts pertinent to the issues or points presented. In a civil case, the court will accept
as true the facts stated unless another party contradicts them. The statement must be supported by
record references.”
5
  Tex. R. App. P. Rule 38.1(i) “Argument. The brief must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.”
6
  Coll. of the Mainland v. Meneke, 420 S.W.3d 865, 871 (Tex.App.—Houston [14th Dist.] 2014,
no pet h.) (refusing to review issues where an authority was cited generally, but not briefed with
sufficient specificity); Whittaker v. Manpower, No. 14-09-00508-CV, 2009 WL 4667391, at *1
(Tex. App. Dec. 10, 2009) (after first issuing an admonishing order, dismissed for failure to provide
a brief in compliance with the rules of appellate procedure); Jurek v. Herauf, No. 14–07–00727–
CV, 2009 WL 179204, at *4 (Tex.App.─Houston [14th Dist.] Jan. 27, 2009, no pet.) (Overruling
issues where appellant did not provide any citations to the record or to relevant authority in support
of the issue).
7
  In re L.M., No. 01-11-00137-CV, 2012 WL 2923132 at *12 (Tex.App.─Houston [1st Dist.] July
12, 2012, pet. denied) (“Appellants do not include any substantive analysis or discussion of the
record in support of their contentions. See TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief
to contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record). We conclude that Appellants have failed to properly brief their
ineffective assistance of counsel claim; thus, it is waived.”); See In re J.R.H., No. 11-09-00321-
CV, 2010 WL 5093772, at *3 (Tex. App.—Eastland Dec. 2, 2010, no pet.) (mem. op.) (holding in
                                                  3
B.     NO FACT ISSUE ON FRAUDULENT CONCEALMENT RAISED

       Plaintiffs’ mere recital of the words “fraudulent concealment” and most

recently the term “drug overdose injury,” does not raise a fact issue sufficient to

avoid summary judgment. The evidence and record in this case establish that

Plaintiffs have yet to produce any competent summary judgment evidence or proof

that Armstrong actually knew of a wrong that occurred, had a duty to disclose any

wrong, had a fixed purpose to conceal any such wrong, or did conceal a wrong from

Plaintiffs such that Plaintiffs did not have a reasonable opportunity to discover the

alleged wrong before the statute of limitations expired. Shah v. Moss, 67 S.W.3d

836, 841 (Tex. 2001).

       Even if the Court looks past Plaintiffs’ briefing deficiencies, none of the

authorities cited by Plaintiffs would compel this Court to reverse the trial court’s

ruling. Articles 49.04 and 49.06, Section 8 of the Texas Code of Criminal

Procedure 8 9 are not relevant to any health care that the Robin Armstrong, M.D.

provided to the decedent. The reference relates to the duties of a justice of the peace


termination of parental rights case, that issue waived because brief lacked adequate analysis and
discussion of issue)).
8
  Texas Code of Criminal Procedure, Title 1, Art. 49.06 - Hindering an Inquest: “(a) A person
commits an offense if the person intentionally or knowingly hinders the entrance of a justice of the
peace to a premises where a death occurred or a body is found; and, (b) An offense under this
article is a Class B misdemeanor.” Tex. Code Crim. Proc. Ann. Art 49.06.
9
  Texas Code of Criminal Procedure, Art. 49.04, section 8 - Deaths Requiring and Inquest: “a) A
justice of the peace shall conduct an inquest into the death of a person who dies in the county
served by the justice if:…(8) the person is a child younger than six years of age and an inquest is
required by Chapter 264, Family Code.” Tex. Code Crim. Proc. Ann. Art 49.04(a).
                                                 4
in the course of a (criminal) death investigation. This cite does not have any legal

import on the appeal, and does not address the elements of a fraudulent concealment

claim, nor does it provide a basis for suggesting the trial court erred in any way.

      Appellants have failed to explain how the authorities connect to their

contentions against Armstrong. Additionally, Appellants has failed to support any

factual contentions with support from the record. The Court should deem any issues

against Appellee Armstrong as waived.

                      IV.    CONCLUSION AND PRAYER

      The summary judgment in favor of Armstrong should be affirmed. Plaintiffs

waived their argument on appeal by inadequate briefing. In addition, the trial court’s

judgment should be affirmed because Plaintiffs filed suit outside of the limitations

period and have not demonstrated any exception to the statute of limitations.

      WHEREFORE, PREMISES CONSIDERED, Appellee, Robin Armstrong,

M.D., respectfully prays that this Honorable Court affirm the trial court’s April 8,

2014, order granting Armstrong’s summary judgment, and dismissal with prejudice,

and for any further relief to which Appellee may show himself justly entitled.


                              [signature on next page]




                                          5
                                       Respectfully submitted,

                                       SMITH ADAMS LAW FEEHAN LLP

                                       By: /s/ Richard M. Law______________
                                           Richard M. Law
                                           State Bar No. 12004500
                                           Richard@SmithAdamsLaw.com
                                           Rainy DeMoss Gibbs
                                           State Bar No. 24028292
                                           Rainy@SmithAdamsLaw.com
                                           1415 Louisiana Street, Suite 3800
                                           Houston, Texas 77002-7360
                                           Telephone: (713) 652-3200
                                           Facsimile: (713) 652-6000
                                       ATTORNEYS FOR APPELLEE,
                                       ROBIN ARMSTRONG, M.D.




                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

counsel – in reliance upon the word count of the computer program used to prepare

this document – certifies that this Brief contains 790 words, excluding the words that

need not be counted under Texas Rule of Appellate Procedure 9.4(i)(l).



                                              /s/ Richard M. Law__________
                                              Richard M. Law




                                          6
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of Appellee
has been served upon each party or their duly authorized agent or attorney of record
as set out below on this the 16th day of March, 2015.

                                        /s/ Richard M. Law__________
                                        Richard M. Law


      Gwendolyn Carpenter
      3271 South Shaver #10102
      Pasadena, Texas 77504
      Regular and Certified Mail/RRR
      (Article Number: 7012 2210 0001 1362 0891)

      Beverly Scott
      406 Dents Road #86
      Dickinson, TX 77539
      Regular and Certified Mail/RRR
      (Article Number: 7012 2210 0001 1362 0884)

      Brian Beckom
      Email: brian@vbattorneys.com
      Curtis J. Bickers
      Email: Curtis@vbattorneys.com
      VUJASINOVIC & BECKOM, PLLC
      1001 Texas Avenue, Suite 1020
      Houston, Texas 77002
      E-Service

      Honorable Wesley Ward
      234th Judicial District Court
      201 Caroline, 13th Floor
      Houston, Texas 77002
      E-Service




                                          7
