No. 12

- 15

- 00061

- CV

I N THE C OURT OF A PPEALS
F OR THE T WELFTH D ISTRICT OF T EXAS

IN T YLER , T EXAS

A LINEA F AMILY H OSPICE C ARE LLC D / B / A A LINEA F AMILY H OSPICE C ARE , D ONNA J UNKERSFELD , R.N., AND K ARLA G AMBLE , LVN , Appellant s ,

v.

P EGGY G OLDSMITH , I NDIVIDUALLY AND ON B EHALF OF THE E STATE OF R UTH N. M ASSEY , Appellee

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

- 00276

B RIEF OF A PPELLEE

Patrick Powers State Bar No. 24013351 Meredith Mathews State Bar No. 24055180 P OWERS T AYLOR 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 CLERKDallas, Texas 75206 Phone: 214.239.8900 Facsimile: 214.239.8901i L IST OF P ARTIES AND C OUNSEL

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

Appellant s 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 Junk ersfeld, 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 P OWERS T AYLOR , LLP Campbell Centre II 8150 N. Central Expressway, Suite 1575 Dallas, Texas 75206 214.239.8900 214.239.8901 (facsimile)ii T ABLE OF C ONTENTS

P AGE

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 27 th. 2014 Order

................................ ......... 6

B. Section 74.351(c) and the cases cited by Appellants are inapplicable because the C ourt 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

................................ ................................ ............................ 1 2

Certificate of Service

................................ ................................ .............................. 13iii I NDEX OF A UTHORITIES

P AGE 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 [14 th 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 [14 th 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 Chri sti, 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

T EX

. R. C IV

. P . 74.351(c)

................................ ................................ ...... 5, 8, 9, 10, 11APPELLEE’S BRIEF 1 PAGE S TATEMENT OF THE C ASE

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 an d 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 c ur 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 deadli ne 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 ame nded 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 2 PAGE February 20, 2015, Alinea filed its Notice of Appeal.

S TATEMENT R EGARDING O RAL A RGUMENT Appellees believe oral argument would aid the Court in reachi ng 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.

S TATEMENT OF J URISDICTION Appellees do not contest the Court’s jurisdiction to hear this appeal.

I SSUES P RESENTED ON A PPEAL Whether or not the trial court properly denied Appellant’s Motion to

Dismiss.

S TATEMENT OF F ACTS
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 R eport, and o n
May 14, 2014 the trial c ourt held a hearing on this motion and took the matter

under advisement.

On May 27, 2014, the trial c ourt entered an order sustaining Appellants ’

3 C.R. at 6, 24.APPELLEE’S BRIEF 3 PAGE objections to Appellee ’s Expert Report and provided Appellee thirty days to serve

Ap pellants 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

- 8 4 01. 5 As such,
Appellee did not receive the order.

On June 18, 2 014, the trial c ourt heard objections to Goldsmith’s Expert

Report filed by another defendant in th e case, Dr. Richard Ingrim. 6 The trial c ourt
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 c ourt that
Appellee ’s counsel had not received the Court’s May 27, 2014 order. 8 The trial

c ourt requested additional documentary proof to establish lack of service, and
counsel agreed to provide this information to the Co urt. That same day, on June

18, 2014, Appellee ’s counsel wrote to the trial c ourt 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 4 PAGE 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 amende d 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 wa s 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 d ismiss 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 5 PAGE S UMMARY OF THE A RGUMENT
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 pa rty 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 rea sonable reliance of an order of the trial
court, and should not be punished as a result of that reliance.

S TANDARD OF R EVIEW
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 andAPPELLEE’S BRIEF 6 PAGE 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 [14 th

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

A RGUMENT AND A UTHORITIES
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 o n 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 o rder in this case setting the

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

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

did not have notice of that order, and the trial c ourt never served Appellee ’s
counsel with a copy of the Order. On Jun e 23, 2014, the Court entered a second

order , superseding the trial c ourt’s prior May 27, 2014 Order, setting that
beginning of the 30

- day amendment period to June 23, 2014. This o rder wasAPPELLEE’S BRIEF 7 PAGE properly serv ed 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 en try. 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.

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

submitted to it is officially announced either in open cour t 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

c ourt is merely a ministerial act by the trial court, but does not chan ge theAPPELLEE’S BRIEF 8 PAGE 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 docke t 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 J une 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. Th e 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 cla im. However, this section and the cases
interpreting this section are not applicable to this issue pres ented in this case.

Here, the trial c ourt 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 9 PAGE 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 serv ed (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 t he 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 ru n until the amending party actually receives
notice of the order granting the extension. See T EX

. R. C IV

. 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 a fter 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 Cou rt’s May 27, 2014 order
by the trial c ourt. It was not until June 18, 2014, that counsel for Defendant Dr.
Ingrim e

- mailed counsel a co py of the order. Further, the trial c ourt actuallyAPPELLEE’S BRIEF 10 PAGE 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 A ppellants 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 imp roperly 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 a ddressing the notice issue); Nexion Health at Beechnut, Inc. v. Paul
, 335 S.W.3d 716, 718

- 19 (Tex. App.

– Houston [14 th Dist.] 2011, no pet)
(upholding dismissal because the amending party served amended reports a day

late, but not addressing the notice is sue); 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 theAPPELLEE’S BRIEF 11 PAGE 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 withi n 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 m istake 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 12 PAGE C ONCLUSION A ND P RAYER
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

P OWERS T AYLOR LLP 8150 North Central Expressway Suite 1575 Dallas, Texas 75206 Phone: 214.239.8900 Fax: 214.239.8901
Attorneys for Appellee Peggy GoldsmithAPPELLEE’S BRIEF 13 PAGE C ERTIFICATE OF C OMPLIANCE

1. This brief co m plies with the type

- volume limitation of T EX

. R. A PP

. P. 9.4(i)(2)(B) because it contains 2
, 337 words, excluding the parts of the brief exempted by T EX

. R. A PP

. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of T EX

. R. A PP

. 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).

C ERTIFICATE OF S ERVICE
The undersigned certifies that a true and correct copy of the foregoing document was served upon all counsel of record on this 8 th day of Ma y 201 5 via:

V

IA E LECTRONIC F ILING S ERVICE Jason D. Mazingo 305 South Broadway Ave., Ste. 404 Tyler, Texas 75702

/ s/ Meredith Mathews Meredith Mathews