No. 12-15-00061-CV

IN THE COURT OF APPEALS

FOR THE TWELFTH DISTRICT OF TEXAS

IN TYLER, TEXAS

ALINEA FAMILY HOSPICE CARE LLC D/B/A ALINEA FAMILY HOSPICE CARE,

DONNA JUNKERSFELD, R.N., AND KARLA GAMBLE, LVN,

Appellants, 

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

State Bar No. 24013351

Meredith Mathews

State Bar No. 24055180

POWERS TAYLOR LLP

Campbell Centre II

8150 North Central Expressway

Suite 1575

Counsel for Appellee

ACCEPTED

12-15-00061-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

5/11/2015 1:29:25 PM

CATHY LUSK

CLERK

 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 5/11/2015 1:29:25 PM CATHY S. LUSK Clerk
Dallas, Texas 75206

Phone: 214.239.8900

Facsimile: 214.239.8901
i

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)
ii

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
iii

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
APPELLEE’S BRIEF PAGE 1

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 2

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 3

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 4

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

until July 24, 2014 to serve an amended expert report. 10 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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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