                                                                                          ACCEPTED
                                                                                      12-15-00061-CV
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 5/11/2015 1:29:25 PM
                                                                                        CATHY LUSK
                                                                                               CLERK

                             No. 12-15-00061-CV

                                                            RECEIVED IN
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
                         IN THE COURT OF APPEALS      5/11/2015 1:29:25 PM
                                                           CATHY S. LUSK
                    FOR THE TWELFTH DISTRICT OF TEXAS          Clerk
                                IN TYLER, TEXAS




  ALINEA FAMILY HOSPICE CARE LLC D/B/A ALINEA FAMILY HOSPICE CARE,
          DONNA JUNKERSFELD, R.N., AND KARLA GAMBLE, LVN,

     Appellants,                                                    5/11/2015

                                      v.

PEGGY GOLDSMITH, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF RUTH N.
                             MASSEY,

     Appellee.

                   On Appeal from the 294th District Court
                 Van Zandt County, Texas, Cause No. 13-00276



                              BRIEF OF APPELLEE


Patrick Powers                                    Counsel for Appellee
State Bar No. 24013351
Meredith Mathews
State Bar No. 24055180
POWERS TAYLOR LLP
Campbell Centre II
8150 North Central Expressway
Suite 1575
Dallas, Texas 75206
Phone: 214.239.8900
Facsimile: 214.239.8901
                        LIST OF PARTIES AND COUNSEL

Parties to the Trial Court’s Order:

Peggy Goldsmith, Individually and on         Plaintiff/Appellee
Behalf of the Estate of Ruth N. Massey

Alinea Family Hospice Care LLC d/b/a         Defendant/Appellant
Alinea Family Hospice Care

Donna Junkersfeld, RN                        Defendant/ Appellant

Karla Gamble, LVN                            Defendant/Appellant

Appellants                                   Trial and Appellate Counsel

Alinea Family Hospice Care LLC d/b/a         Jason D. Mazingo
Alinea Family Hospice Care                   The Mazingo Firm, P.C.
Donna Junkersfeld, RN                        305 S. Broadway Ave., Ste.
404
Karla Gamble, LVN                            Tyler, Texas 75702
                                             903.630.7123
                                             800.771.3589 (facsimile)


Appellee                                     Trial and Appellate Counsel

Peggy Goldsmith, Individually and on         Patrick Powers
Behalf of the Estate of Ruth N. Massey       Meredith Mathews
                                             POWERS TAYLOR, LLP
                                             Campbell Centre II
                                             8150 N. Central Expressway,
                                             Suite 1575
                                             Dallas, Texas 75206
                                             214.239.8900
                                             214.239.8901 (facsimile)




                                         i
                                             TABLE OF CONTENTS

                                                                                                                     PAGE

List of Parties and Counsel ........................................................................................ i

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Statement of the Case ............................................................................................... 1

Statement Regarding Oral Argument ....................................................................... 2

Statement of Jurisdiction .......................................................................................... 2

Issues Presented on Appeal ...................................................................................... 2

Statement of Facts..................................................................................................... 2

Summary of the Argument ....................................................................................... 5

Standard of Review................................................................................................... 5

Argument and Authorities ........................................................................................ 6

    A. Appellee complied with the Court’s June 23, 2014 Order, which superseded
       and/or amended the Court’s May 27th. 2014 Order......................................... 6

    B. Section 74.351(c) and the cases cited by Appellants are inapplicable because
       the Court entered a subsequent order setting the statutory amendment
       period .............................................................................................................. 8

    C. The Trial Court has the Power to Toll the Time Period for Goldsmith to file
       her Amended Expert Report ......................................................................... 11

Conclusion and Prayer ............................................................................................ 12

Certificate of Service .............................................................................................. 13



                                                             ii
                                            INDEX OF AUTHORITIES

                                                                                                                    PAGE
Cases

Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46 S.W.3d 873
(Tex. 2001) ............................................................................................................... 5

Baylor College of Medicine v. Pokluda, 283 S.W.3d 110 (Tex. App.—Houston
[14th Dist.] 2009) ....................................................................................................... 6

Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex. 1970) ........................ 7

Constancio v. Bray, 266 S.W.3d 149 (Tex. App. – Austin 2008, no pet) .............. 10

Granger v. Aaron’s, Inc., 636 F.3d 708 (5th Cir. 2011) ......................................... 11

Knox v. Long, 257 S.W.2d 289 (1953) ..................................................................... 7

Lewis v. Funderburk, 253 S.W.3d 204 (Tex. 2008) ............................................... 10

Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App. – Houston
[14th Dist.] 2011, no pet) ......................................................................................... 10

Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288 (Tex. App.—Waco, 1988) .... 7, 8

SSC Robstown Operating Co. LP v. Perez, 2013 WL 1838597, at *2 (Tex. App. –
Corpus Christi, Feb. 28, 2013) ............................................................................... 10

Smith v. J-Hite, Inc., 127 S.W.3d 837 (Tex. App.—Eastland 2003, no pet.) ......... 11

Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719 (Tex. App.—Dallas,
1988, no writ)............................................................................................................ 7


Statutes and Codes

TEX. R. CIV. P. 74.351(c) ...................................................................... 5, 8, 9, 10, 11




                                                             iii
                              STATEMENT OF THE CASE


       This underlying case arises out of a medical negligence claim field by Peggy

Goldsmith on behalf of herself and her mother, Ruth Massey (hereinafter

“Goldsmith” or “Appellee”). Appellee filed her Original Petition on November 1,

2013 alleging that Appellants Alinea Family Hospice Care, LLC d/b/a Alinea

Family Hospice Care, Donna Junkersfeld, R.N., and Karla Gamble, LVN

(hereinafter “Alinea” or “Apellants”) were negligent in their care and treatment of

Ruth Massey, ultimately leading to death due to a fecal impaction.1         Alinea

answered the lawsuit and filed an objection to the expert report served by

Appellee.2 On May 27, 2014, the trial court issued an order giving Goldsmith 30

days to cur the deficient reports, however Appellee was never served with a copy

of the report. On June 23, 2014, the trial court issued an order on Alinea’s

Objections and Motion to Dismiss Goldsmith’s expert report, finding good cause

to change Appellee’s deadline to amend Appellee’s Expert Report and providing

Goldsmith until July 24, 2014 to serve an amended expert report. Goldsmith

timely served her amended expert report on July 22, 2014. However, Alinea

sought dismissal of Goldsmith’s suit, claiming the amended report was untimely.

The trial court denied Alinea’s motion to dismiss on February 5, 2015, and on



1	  C.R.
       at 6.
2
  C.R. at 24, 29.

APPELLEE’S BRIEF                                                         PAGE     1
February 20, 2015, Alinea filed its Notice of Appeal.

                                STATEMENT REGARDING ORAL ARGUMENT

             Appellees believe oral argument would aid the Court in reaching a decision

on this case. Oral argument will allow the Parties to explain the application of

facts to law, and allow the Parties to answer any questions the Court may have

regarding the matter.


                                     STATEMENT OF JURISDICTION

             Appellees do not contest the Court’s jurisdiction to hear this appeal.


                                    ISSUES PRESENTED ON APPEAL

             Whether or not the trial court properly denied Appellant’s Motion to

Dismiss.


                                        STATEMENT OF FACTS

             Appellee filed this lawsuit on November 1, 2013 and Appellants timely

answered.3 On February 5, 2014, Appellee served Appellants with Goldsmith’s

Chapter 74 Expert Report, prepared by Steven C. Fox, D.O. (“Expert Report”). On

February 25, 2014, Appellants file objections to Appellee’s Expert Report, and on

May 14, 2014 the trial court held a hearing on this motion and took the matter

under advisement.

             On May 27, 2014, the trial court entered an order sustaining Appellants’
3	  C.R.   at 6, 24.	  	  


APPELLEE’S BRIEF                                                                 PAGE   2
objections to Appellee’s Expert Report and provided Appellee thirty days to serve

Appellants with an amended expert report.4 This order was intended to be served

on all counsel of record by facsimile. Unfortunately, Appellee’s counsel did not

receive a copy of the Court’s order because of a typographical error in the

facsimile number – Appellee’s counsel’s facsimile number is (214) 239-8901, but

the order mistakenly listed the facsimile number as (214) 239-8401.5 As such,

Appellee did not receive the order.

            On June 18, 2014, the trial court heard objections to Goldsmith’s Expert

Report filed by another defendant in the case, Dr. Richard Ingrim.6 The trial court

sustained these objections as well, and entered an order requiring that Appellee

serve an amended expert report regarding Dr. Ingrim by July 24, 2014.7

            At this hearing, Appellee’s counsel also informed the trial court that

Appellee’s counsel had not received the Court’s May 27, 2014 order.8 The trial

court requested additional documentary proof to establish lack of service, and

counsel agreed to provide this information to the Court. That same day, on June

18, 2014, Appellee’s counsel wrote to the trial court explaining that because of the

error in the facsimile number on the order cover sheet, Appellee’s counsel did not



4	  C.R.
       at 35
5
  C.R. at 38.
6
  C.R. at 69.
7
  C.R. at 43.
8
  C.R. at 69.	  	  

APPELLEE’S BRIEF                                                          PAGE     3
receive a copy of the order from May 27, 2014. 9

            On June 23, 2014, the Court issued a second order on Alinea’s Objections

and Motion to Dismiss Goldsmith’s Expert Report, finding good cause change

Appellee’s deadline to amend Appellee’s Expert Report and providing Appellee
                                                           10
until July 24, 2014 to serve an amended expert report.          The Court’s June 23,

2014 order altered Appellee’s deadline to serve an amended expert report related to

Appellants Alinea Health, Junkersfeld, and Gamble to the same deadline to amend

Appellee’s Expert Report as to Dr. Ingrim, which was July 24, 2014.

            On July 22, 2014, Appellee timely served Amended Expert Reports on all

Appellants in this case. 11 On August 12, 2014, Appellants Alinea, Junkersfeld,

and Gamble filed a motion to dismiss Goldsmith’s claims, asserting that Appellee

did not timely serve an amended expert report as to these Appellants. Goldsmith

filed her response to Alinea’s motion to dismiss on January 27, 2015.12 A hearing

was held on the motion on January 28, 2015.13 The trial court denied Appellant’s

motion to dismiss, finding that Goldsmith acted in reliance of a court order, and

timely served the amended report.14




9	  C.R.
       at 37.
10
   C.R. at 3.
11
   C.R. at 102.
12
   C.R. at 57.
13
   C.R. at 146.
14
   Id.

APPELLEE’S BRIEF                                                          PAGE     4
                           SUMMARY OF THE ARGUMENT

      The appeal should be denied for three primary reasons. First, Appellee was

never properly served with a copy of the trial court’s May 27, 2014 order. The

trial court’s May 27, 2014 order was amended and superseded by the trial court’s

June 23, 2014 order, which is the only order regarding the deadline to serve

amended expert reports that the trial court served on Appellee. The deadline set

forth in the trial court’s June 23, 2014 order is the operative deadline, which

Appellee met.

      Second, Appellants’ reliance on Section 74.351(c) is misplaced – this

section does not speak to instances in which an order is not served on a party and is

subsequently amended or superseded by a court. In this case, the Court amended

the order to change the beginning date of the 30-day period. Appellee met this

deadline and timely served amended expert reports.

      Third, Goldsmith was acting in reasonable reliance of an order of the trial

court, and should not be punished as a result of that reliance.

                               STANDARD OF REVIEW

      A trial court’s denial of a motion to dismiss is reviewed by this Court for an

abuse of discretion. Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001).          In order to prove the trial court abused its

discretions, Appellants must show the trial court acted in an unreasonable and



APPELLEE’S BRIEF                                                          PAGE     5
arbitrary manner or without reference to any rules or guiding principles. Baylor

College of Medicine v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.—Houston [14th

Dist.] 2009). In other words, Appellants must show the trial court with complete

disregard to the law.

                         ARGUMENT AND AUTHORITIES

      Appellants claim that the trial court abused its discretion by failing to

dismiss Goldsmith’s claims against them because Appellee did not timely serve

Appellants with an amended expert report. As support for its position, Alinea

asserts that because Appellee was made aware of the Court’s May 27, 2014 at the

June 18, 2014 hearing, Appellee had until 30 days after June 18, 2014 (until July

18, 2014) to serve Appellee’s amended expert reports, and serving the amended

report on July 22, 2015 was untimely, and dismissal was required.

A.    Appellee complied with the Court’s June 23, 2014 Order, which
      superseded the Court’s May 27, 2014 Order.

      On June 23, 2014, the trial court entered an order in this case setting the

deadline for Appellee to serve amended reports by July 24, 2014. Although the

trial court had previously entered an order on May 27, 2014, Appellee’s counsel

did not have notice of that order, and the trial court never served Appellee’s

counsel with a copy of the Order. On June 23, 2014, the Court entered a second

order, superseding the trial court’s prior May 27, 2014 Order, setting that

beginning of the 30-day amendment period to June 23, 2014. This order was

APPELLEE’S BRIEF                                                      PAGE     6
properly served on Appellee’s counsel on June 23, 2014.

      Under the Court’s June 23, 2014 Order, Appellee had until July 24, 2014 to

serve amended expert reports. Appellee complied with the Court’s deadline by

serving amended expert reports on July 22, 2014. Based on this alone, the Court

should uphold the trial court’s order.

      Appellants argue that an entry in the docket sheet cannot take the place of an

order of the court. However, Appellants mischaracterize the trial court’s June 23,

2014 order as a docket sheet entry. Appellants’ brief indicates that an order must

reduced to writing, signed by the trial court, and entered in the record. Utils.

Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.—Dallas,

1988, no writ). The June 23, 2014 is labeled as an order of the court, it is written,

and it was signed by the judge, giving it all of the hallmarks of an order.

      Rendition of a judgment occurs when the trial court’s decision upon a matter

submitted to it is officially announced either in open court or by a memorandum

filed with the clerk. Knox v. Long, 257 S.W.2d 289, 292 (1953); Oak Creek

Homes, Inc. v. Jones, 758 S.W.2d 288 (Tex. App.—Waco, 1988). Rendition is

defined as “the judicial act by which the court settles and declares the decision of

the law upon the matters at issue.” Comet Aluminum Company v. Dibrell, 450

S.W.2d 56, 58 (Tex. 1970). A subsequent writing of the order and signing by the

court is merely a ministerial act by the trial court, but does not change the



APPELLEE’S BRIEF                                                              PAGE   7
rendering of the order. Oak Creek Homes, 758 S.W.2d at 290.                In the action

below, the trial court filed a memorandum with the clerk when the court entered its

order on the docket sheet. As a result, the notation on the docket sheet does

function as an order of the court on which Goldsmith could rely.

             In addition, the matter required the rendition of a second order because the

trial court did not make the determination at the June 18, 2014 hearing that

Goldsmith would be permitted to amend her report.15 In fact, the record is clear

that the trial court required counsel to essentially offer proof to the trial court that

Goldsmith’s counsel never received notice of the motion. The trial court did not

make a decision on Goldsmith’s request until June 23, 2014, at which time the

second order, superseding the May 27, 2014 order, was rendered.16

B.           Section 74.351(c) and the cases cited by Appellants are inapplicable
             because the Court entered a subsequent order setting the statutory
             amendment period.

             Appellants argue that the Court has no discretion to allow Appellee longer

than 30 days to amend Appellee’s expert reports. Appellants rely upon Section

74.351(c) in support of their claim.             However, this section and the cases

interpreting this section are not applicable to this issue presented in this case.

Here, the trial court never actually served the original order on Appellee, but

entered a superseding order that changed the beginning of the 30-day amendment

15	  C.R.
        at 82 – 84.
16
   C.R. at 3.

APPELLEE’S BRIEF                                                              PAGE     8
period. Appellee has not been granted more than 30 days to amend.

      Section 74.351(c) relates to instances in which a court finds that an expert

report has not been served (including a timely served but “deficient” report) within

the 120-day period. In such a case, a trial court has the discretion to enter an order

granting a 30-day extension to serve an amended expert report.        If the 120-day

period has not yet run at the time of the extension, the amending party’s deadline

to amend is 30 days plus the remaining time under the 120-day deadline. If the

120-day period has run at the time that the request for the amendment is granted,

the 30-day period does not start to run until the amending party actually receives

notice of the order granting the extension. See TEX. R. CIV. P. 74.351(c). The

rationale for this rule is clear – if a court sustains a party’s objections to expert

reports before the 120-day period runs, the amending party’s remaining time under

the 120-day deadline should not be cut short. Conversely, if a court grants a 30-

day extension after the 120-day deadline has run, but the amending party does not

get a copy of the order granting the extension until after the order date, it would be

unfair to require a party to amend with less than the statutorily-prescribed 30 day

period. However, this is not the case here.

      Here, Appellee was never served a copy of the Court’s May 27, 2014 order

by the trial court. It was not until June 18, 2014, that counsel for Defendant Dr.

Ingrim e-mailed counsel a copy of the order. Further, the trial court actually



APPELLEE’S BRIEF                                                           PAGE     9
entered an entirely separate order that superseded the previous order. Section

74.351(c) does not address either of these issues – (i) when a Court does not serve

an amending party with the order granting the 30-day extension or (ii) when an

entirely separate order is entered that alters the beginning date of the amendment

period. Nor do any of the cases cited by Appellants that have interpreted this

section. Further, the cases cited by Appellants also do not address this issue, but

concern instances in which a court improperly gave a party 30 days from the date

of the hearing on the objections and when a court improperly cut off an amending

party’s time to amend prior to the running of the 120-day deadline or a party

simply missed the deadline. See, e.g., Lewis v. Funderburk, 253 S.W.3d 204, 207-

08 (Tex. 2008) (holding that a Appellee can change experts within the extension

period, but not addressing the notice issue); SSC Robstown Operating Co. LP v.

Perez, 2013 WL 1838597, at *2 (Tex. App. – Corpus Christi, Feb. 28, 2013)

(upholding dismissal because the amending party served amended reports a day

late, but not addressing the notice issue); Nexion Health at Beechnut, Inc. v. Paul,

335 S.W.3d 716, 718-19 (Tex. App. – Houston [14th Dist.] 2011, no pet)

(upholding dismissal because the amending party served amended reports a day

late, but not addressing the notice issue); and Constancio v. Bray, 266 S.W.3d 149,

162 (Tex. App. – Austin 2008, no pet) (holding that time remaining under the 120-

day deadline must be in additional to the 30-day extension, but not addressing the



APPELLEE’S BRIEF                                                         PAGE    10
notice issue).

      Thus, application of Section 74.351(c) does not mandate that the Court

dismiss Appellee’s claims because the amended reports were served untimely. Nor

do any of the cases interpreting this statutory provision.

C.    The Trial Court has the Power to Toll the Time Period for Goldsmith to
      file her Amended Expert Report.

      Goldsmith served her Amended Expert Report on Appellants in the time

prescribed by the trial court’s June 23, 2014 order. In doing so, she relied on the

issuance of an order of the trial court. The trial court had the power to toll the time

period for Goldsmith to serve her amended expert report. Courts have the inherent

power to toll a specific time period when there are extenuating circumstances.

Smith v. J-Hite, Inc., 127 S.W.3d 837, 843 (Tex. App.—Eastland 2003, no pet.).

The application of equitable tolling is a fact-specific, discretionary matter.

Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011). In the instant case, it

was within in the discretion of the trial court to give Goldsmith additional time to

file her amended expert report based on the principle of equitable tolling, as there

were extenuating circumstances due to Goldsmith not receiving the original order

because of a mistake made by the trial court. Because the trial court has the power

to equitably toll a time period, the trial court did not abuse its discretion in giving

Goldsmith the additional time, and the Court should affirm the trial court’s order.




APPELLEE’S BRIEF                                                            PAGE      11
                            CONCLUSION AND PRAYER

      For these reasons, Appellees respectfully requests that this Court affirm the

trial court’s order denying Appellants’ Motion to Dismiss.        Goldsmith also

requests any such general relief to which she may be entitled.


                                      Respectfully submitted,


                                             /s/ Meredith Mathews
                                      Patrick W. Powers
                                      State Bar No. 24013351
                                      patrick@powerstaylor.com
                                      Meredith Mathews
                                      State Bar No. 24055180
                                      meredith@powerstaylor.com

                                      POWERS TAYLOR LLP
                                      8150 North Central Expressway
                                      Suite 1575
                                      Dallas, Texas 75206
                                      Phone: 214.239.8900
                                      Fax: 214.239.8901

                                      Attorneys for Appellee Peggy Goldsmith




APPELLEE’S BRIEF                                                        PAGE    12
                         CERTIFICATE OF COMPLIANCE

       1.    This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i)(2)(B) because it contains 2,337 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).

       2.    This brief complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14 point Times New Roman font (and 12 point for
footnotes).




                            CERTIFICATE OF SERVICE

     The undersigned certifies that a true and correct copy of the foregoing
document was served upon all counsel of record on this 8th day of May 2015 via:

      VIA ELECTRONIC FILING SERVICE
      Jason D. Mazingo
      305 South Broadway Ave., Ste. 404
      Tyler, Texas 75702


                                                 /s/ Meredith Mathews
                                            Meredith Mathews




APPELLEE’S BRIEF                                                         PAGE    13
