                                                                      ACCEPTED
                                                                 01-14-00792-CV
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                           12/30/2014 2:56:21 PM
                                                             CHRISTOPHER PRINE
                                                                          CLERK

               No. 01-14-00792-CV
________________________________________________
                                               FILED IN
                                         1st COURT OF APPEALS
          IN THE COURT OF APPEALS            HOUSTON, TEXAS
      FIRST JUDICIAL DISTRICT OF TEXAS 12/30/2014 2:56:21 PM
                                         CHRISTOPHER A. PRINE
_______________________________________________
                                                 Clerk
             EUGENIA WOODARD
                      Appellant

                       V.
          DR. RONNIE ELMORE (DDS)
                       Appellee.
________________________________________________
       On Appeal from the 215th District Court
               Harris County, Texas
  ___________________________________________

BRIEF OF APPELLEE DR. RONNIE ELMORE (DDS)
________________________________________________

                      SPROTT NEWSOM LUNCEFORD
                      QUATTLEBAUM MESSENGER
                      /s/__________________________________
                      JOEL RANDAL SPROTT
                      State Bar No. 18971580
                      Sprott@sprottnewsom.com
                      DIANA M CAVAZOS
                      State Bar No. 24056671
                      cavazos@sprottnewsom.com
                      2211 Norfolk, Suite 1150
                      Houston, Texas 77098
                      (713) 523-8338
                      (713) 523-9422 (FAX)
                      ATTORNEYS FOR APPELLEE
                      DR. RONNIE ELMORE (DDS)
                  IDENTITY OF PARTIES AND COUNSEL

      In accordance with Rule 52.3(a) of the TEXAS RULES           OF   APPELLATE

PROCEDURE, the following list identifies all parties and their counsel involved in

the underlying lawsuit, so that the justices of this Honorable Court may evaluate

the need to recuse or disqualify themselves:

Appellee/Defendant:             Dr. Ronnie Elmore (DDS)

Counsel For Appellee:           Joel Randal Sprott
                                State Bar No. 18971580
                                Diana M Cavazos
                                State Bar No. 24056671
                                SPROTT NEWSOM LUNCEFORD
                                QUATTLEBAUM MESSENGER
                                2211 Norfolk, Suite 1150
                                Houston, TX 77098
                                713-523-8338
                                713-523-9422 (Fax)
                                sprott@sprottnewsom.com

Appellant/Plaintiff:           Eugenia Woodard, Pro Se Appellant
                               115 Arbor St. #2
                               Baytown, TX 77520
                               832-996-6145
                               713-443-7035
                               832-279-4331
                               Woodardeugenia93@yahoo.com




                                         ii
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Rule 39 of the TEXAS RULES OF APPELLATE PROCEDURE, because

the dispositive issues or issues have been authoritatively decided, and the facts and

legal arguments are adequately presented in the briefs and records, appellee does

not believe that     oral argument would significantly aid the Court in its

consideration of Appellant’s appeal.




                                         iii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ............................................. iii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES...................................................................................... v
STATEMENT OF THE CASE .................................................................................. 2

RESPONSE TO ISSUES PRESENTED FOR REVIEW.......................................... 4

STATEMENT OF FACTS ........................................................................................ 5

SUMMARY OF THE ARGUMENT ........................................................................ 7
ARGUMENT AND AUTHORITIES ........................................................................ 8

Response to Issue Presented 1:
         THE DISTRICT COURT'S DISMISSAL OF PLAINTIFF'S HCLC
         WAS PROPER BECAUSE PLAINTIFF FAILED TO FILE A
         STATUTORILY REQUIRED EXPERT REPORT ........................................ 8

Response to Issue Presented 2:

         ADR IS NOT APPROPRIATE WHEN THE COURT'S DISMISSAL
         OF PLAINTIFF'S HCLC WAS PROPER ...................................................... 8

         A.       THE TRIAL COURT WAS REQUIRED TO DISMISS ...................... 8

         B.       ADR WAS NOT APPROPRIATE ........................................................ 9

CONCLUSION AND PRAYER ............................................................................. 10
CERTIFICATE OF SERVICE ................................................................................ 10
CERTIFICATE OF COMPLIANCE ....................................................................... 11
APPENDIX .............................................................................................................. 13


                                                           iv
                                       INDEX OF AUTHORITIES

Statutes & Rules of Procedure

TEX. CIV. PRAC. & REM. CODE ANN §74.351(a) ................................................. 5,7-8

TEX. CIV. PRAC. & REM. CODE ANN §74.351(b)(2) ............................................... 7-8

TEX. R. APP. P. 52.3(a). ............................................................................................. ii

TEX. R. APP. P. 39..................................................................................................... iii

TEX. R. APP. P. 38.1(i) ................................................................................................ 2

TEX. R. APP. P. 9.4(i)(3). .......................................................................................... 12

Case Law

Estate of Regis ex. Rel. McWashington v. Harris County Hosp. Dist.,
      208 S.W.3d 64 (Tex. App. – Houston [14th Dist.] 2006, no pet.) .................. 9

Keene Corp. v. Gardner,
     837 S.W.2d 224 (Tex. App.—Dallas 1992, writ denied) ................................ 9

Scoresby v. Santillan,
      346 S.W. 3d 546 (Tex. 2011) .......................................................................... 8

Walton v. Cannon, Short & Gaston,
     23 S.W. 3d 143 (Tex. App. – El Paso 2000, no pet.) ...................................... 9




                                                            v
                              No. 01-14-00792-CV
           ________________________________________________
                      IN THE COURT OF APPEALS
                  FIRST JUDICIAL DISTRICT OF TEXAS
            _______________________________________________
                            EUGENIA WOODARD
                                     Appellant

                                       V.
                        DR. RONNIE ELMORE (DDS)
                                     Appellee.
           ________________________________________________
                   On Appeal from the 215th District Court
                           Harris County, Texas
              ___________________________________________

           BRIEF OF APPELLEE DR. RONNIE ELMORE (DDS)
           ________________________________________________


      Appellee, DR. RONNIE ELMORE submits this brief. Appellee will be

referred to as either “Dr. Elmore” or “Defendant.” Appellant, Eugenia Woodard,

will be referred to as “Plaintiff” or “Ms. Woodard.” The Clerk’s Record will be

cited as “CR”, followed by the relevant page numbers; and the Supplemental

Clerk’s Record will be cited as “SCR”, folloed by the relevant page numbers.




                                        1
                         STATEMENT OF THE CASE

       Nature of the case. This is a healthcare liability claim (“HCLC”) governed

by Chapter 74 of the Texas Civil Practices and Remedies Code. Ms. Woodard filed

her Original Petition on February 26, 2014. (CR 3). Plaintiff made allegations

against Dr. Elmore for alleged injuries sustained during a tooth extraction. (CR 3).

Plaintiff also sued Dr. Elmore’s insurance company for “resist[ing] the claim.” (CR

3). Defendants filed their Original Answer on March 10, 2014. (CR 8).

       Course of Proceedings. For ease in the review of the procedure history of

this case, and due to the fact that Plaintiff has not cited to the Clerk’s Record, in

direct violation of TEX. R. APP. P. 38.1(i), Dr. Elmore has prepared the following

chart which details the relevant procedural events:

Date                 Event                                           CR citation

2/26/2014            Plaintiff’s Original Petition Motion for Oral   CR 3
                     Hearing
3/10/2014            Defendants Original Answer                      CR 8
3/18/2014            Defendant’s Special Exceptions                  SCR 3
3/28/2014            Defendant Fortress Insurance Company’s          SCR 5
                     Motion for Summary Judgment
5/2/2014             Order      granting     Fortress    Insurance   SCR 9
                     Company’s Motion for Summary Judgment
7/11/2014            Defendant’s Motion to Dismiss                   SCR 11
8/6/2014             Plaintiff’s Motion for ADR                      SCR 13
8/19/2014            Objection to Dispute Resolution                 SCR 18
8/25/2014            Order denying Plaintiff’s Request for ADR       SCR 20
8/29/2014            Order granting Defendant, Dr. Ronnie            CR 14
                     Elmore, DDS’ Motion to Dismiss

                                         2
Date        Event                                        CR citation

9/12/2014   Plaintiff’s Motion to Vacate Order of        CR 16
            Dismissal and to Reinstate Case
9/16/2014   Defendant, Dr. Ronnie Elmore, DDS’           CR 21
            Response to Plaintiff’s Motion to Vacate
9/22/2014   Order denying Plaintiff’s Motion to Vacate   CR 23
            and to Reinstate Case
9/24/2014   Notice of Appeal                             CR 28




                              3
       RESPONSE TO ISSUES PRESENTED FOR REVIEW

ISSUE 1:   THE DISTRICT COURT'S DISMISSAL OF PLAINTIFF'S
           HCLC WAS PROPER BECAUSE PLAINTIFF FAILED TO
           FILE A STATUTORILY REQUIRED EXPERT REPORT.
ISSUE 2:   ADR IS NOT APPROPRIATE WHEN THE COURT'S
           DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER.




                          4
                            STATEMENT OF FACTS
      On February 26, 2014, Plaintiff filed a healthcare liability claim (“HCLC”).

(CR 3). Plaintiff made allegations against Dr. Elmore for alleged injuries sustained

during a tooth extraction. (CR 3). Plaintiff also sued Dr. Elmore’s insurance

company Fortress Insurance Company for “resist[ing] the claim.” (CR 3).

Defendant, Fortress Insurance Company filed a Motion for Summary Judgment for

any and all claims against it on March 28, 2014. (SCR 5). The Court granted

Fortress Insurance Company’s Motion for Summary Judgment and dismissed all

claims against it with prejudice on May 2, 2014. (SCR 9).

      Ms. Woodard had sought treatment from Defendant Dr. Elmore for dental

care. (CR 3). During one of the treatment sessions, Plaintiff claims to have

sustained multiple injuries to her lower back, neck, mouth, and jaw as a result of an

extraction at Dr. Elmore’s office. (CR 3).

      In accordance with the procedural requirements of the Healthcare Liability

Act (“HCLA”), Plaintiff was required to serve, within 120 days from the date this

Defendant filed his original answer, an expert report and curriculum vitae of an

expert critical of each remaining Defendant. TEX. CIV. PRAC. & REM. CODE

§74.351(a). Plaintiff wholly failed to serve the required Chapter 74 expert report.




                                          5
      The District Court held a hearing on the Defendants' Motions to Dismiss,

and on August 29, 2014, granted Dr. Elmore’s motion. (CR 14). Plaintiff timely

filed her Notice of Appeal, although she has failed to pay her court fees to this

Court. (CR 28).




                                       6
                       SUMMARY OF THE ARGUMENT

      In accordance with the procedural requirements of the Healthcare Liability

Act (“HCLA”), Plaintiff was required to serve, within 120 days from the date that

Defendant filed his original answer, an expert report and curriculum vitae of an

expert critical of each remaining Defendant. TEX. CIV. PRAC. & REM. CODE

§74.351(a). Plaintiff failed to serve the required Chapter 74 expert report. The

dismissal of Plaintiff’s case for failing to file an expert report was appropriate and

should be affirmed. TEX. CIV. PRAC. & REM. CODE §74.351(b)(2). ADR was not

appropriate or required in this case.




                                          7
Response to Issue 1:             THE DISTRICT COURT'S DISMISSAL OF
                                 PLAINTIFF'S  HCLC   WAS    PROPER
                                 BECAUSE PLAINTIFF FAILED TO FILE A
                                 STATUTORILY    REQUIRED    EXPERT
                                 REPORT.

Response to Issue 2:             ADR IS NOT APPROPRIATE WHEN THE
                                 COURT'S DISMISSAL OF PLAINTIFF'S
                                 HCLC WAS PROPER.

                       ARGUMENT AND AUTHORITIES

A.    THE TRIAL COURT WAS REQUIRED TO DISMISS.

      A plaintiff in a healthcare liability claim shall, no later than the 120th day

after the date Defendant files his original answer, serve on each party an expert

report, with curriculum vitae, critical of each remaining Defendant. TEX. CIV.

PRAC. & REM. CODE §74.351(a). If Plaintiff fails to file an expert report, the Court

“on the motion of the affected health care provider…SHALL…enter an Order that

dismisses the claim with respect to the physician with prejudice to the re-filing of

the claim.” TEX. CIV. PRAC. & REM. CODE §74.351(b)(2). See also, Scoresby v.

Santillan, 346 S.W. 3d 546, 549 (Tex. 2011) (The Medical Liability Act entitles a

defendant to dismissal of a health care liability claim if... he is not served with an

expert report showing that the claim against him has merit).

      Defendant, Dr. Elmore, filed his original answer on March 10, 2014. (CR 8).

Plaintiff failed to file the statutorily required expert report within 120 days, or by


                                          8
July 8, 2014. If a Plaintiff fails to timely file an expert report, the trial court has no

discretion to do anything other than dismiss the case. Estate of Regis ex. Rel.

McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App. –

Houston [14th Dist.] 2006, no pet.) Thus, in this case, the District Court did not

abuse its discretion in granting Defendant, Dr. Elmore’s Motion to Dismiss

because the Court had no discretion but to dismiss Plaintiff’s case due to her

failure to file the statutorily required expert report.

B.    ADR IS NOT APPROPRIATE.

      The trial court has the discretion in determining whether mediation is

appropriate for an individual case. Walton v. Cannon, Short & Gaston, 23 S.W. 3d

143, 150 (Tex. App. – El Paso 2000, no pet.) (citing Keene Corp. v. Gardner, 837

S.W.2d 224, 232 (Tex. App.—Dallas 1992, writ denied). Because Plaintiff failed

to file her statutorily required expert report, and because the Trial Court properly

dismissed Plaintiff’s claims pursuant to Chapter 74, alternative dispute resolution

is not proper in this case. There are no issues in either law or fact to compromise

through the ADR process, and therefore ADR was not appropriate or required in

this case and the trial court’s denial of Plaintiff’s Motion for ADR did not

constitute an abuse of discretion.




                                            9
                         CONCLUSION AND PRAYER

      The Trial Court did not abuse its discretion in dismissing Plaintiff’s claims

against Defendant because Plaintiff failed to timely file her statutorily required

expert report. Additionally, the Court’s denial of Plaintiff’s Motion for ADR did

not constitute an abuse of discretion.        Therefore, Appellee, DR. RONNIE

ELMORE (DDS), prays that this court affirm the District Court’s dismissal of

Plaintiff’s medical malpractice case and order Plaintiff to pay taxable court costs.

                                       Respectfully submitted,

                                       SPROTT NEWSOM LUNCEFORD
                                       QUATTLEBAUM MESSENGER

                                       /s/ JOEL RANDAL SPROTT
                                       JOEL RANDAL SPROTT
                                       State Bar No. 18971580
                                       Sprott@sprottnewsom.com
                                       DIANA M CAVAZOS
                                       State Bar No. 24056671
                                       cavazos@sprottnewsom.com
                                       2211 Norfolk, Suite 1150
                                       Houston, Texas 77098
                                       (713) 523-8338
                                       (713) 523-9422 (FAX)




                                         10
                       CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing motion was
served upon the following counsel of record on this 30th day of December, 2014,
by E-Filing; Certified Mail, Return Receipt Requested; and/or facsimile in
accordance with the Texas Rules of Appellate Procedure:

Egenia Woodard, Pro Se Appellant    Via CMRRR: 70053110000282312502
115 Arbor St. #2                    Via Email:Woodardeugenia93@yahoo.com
Baytown, TX 77520

                                    /s/ JOEL RANDAL SPROTT
                                    JOEL RANDAL SPROTT




                                      11
                     CERTIFICATE OF COMPLIANCE

       Pursuant to TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(3), I hereby
certify that this brief contains 854 words (excluding the caption, identity of the
parties and counsel, statement regarding oral argument, table of contents, table of
authorities, statement of the case, statement of issues presented, statement of
procedural history, signature, proof of service, certification, and certificate of
compliance). This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text, except for footnotes which are in 12-point
typeface. In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.



                                      /s/ JOEL RANDAL SPROTT
                                      JOEL RANDAL SPROTT




                                        12
                                        No. 01-14-00792-CV
               ________________________________________________
                          IN THE COURT OF APPEALS
                      FIRST JUDICIAL DISTRICT OF TEXAS
                _______________________________________________
                                     EUGENIA WOODARD
                                              Appellant

                                                    V.
                                DR. RONNIE ELMORE (DDS)
                                             Appellee.
               ________________________________________________
                        On Appeal from the 215th District Court
                                Harris County, Texas
                   ___________________________________________

                                  APPENDIX
               ________________________________________________

Order Granting Defendant’s Motion to Dismiss .......................................................... Tab 1




                                                     13
Certified Document Number: 62160868 - Page 1 of 2
Certified Document Number: 62160868 - Page 2 of 2
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this August 29, 2014


     Certified Document Number:        62160868 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




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