NO. 05-14-01342-CV

IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT OF TEXAS AT DALLAS BAYLOR UNIVERSITY MEDICAL CENTER, Appellant, v. MARY GREESON,

Appellee.

________________________________________________________________________

From the 44th Judicial District Court of Dallas County, Texas

The Honorable Carlos Cortez, Presiding Trial Court No. DC-13-07506

______________________________________________________________________

MARY GREESON’S APPELLEE’S BRIEF

______________________________________________________________________ William J. Dunleavy Texas Bar No. 00787404 Law Offices of William J. Dunleavy, P.C. 825 Market Street Building M, Suite 250 Allen, Texas 75013 Telephone: (972) 247-9200 Facsimile: (972) 247-9201 Email: bill@williamjdunleavy.com Attorney for Appellee Mary Greeson ORAL ARGUMENT REQUESTED April 6, 2015 ACCEPTED 05-14-01342-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 4/6/2015 11:59:04 PM

LISA MATZ CLERKS TATEMENT REGARDING ORAL ARGUMENT

Mary Greeson believes the Court’s decisional p rocess would b e a i d ed by oral argum ent because the f

act scenario in this case i s unusual and counsel f or Appellee has not i dentif ied any case involving a n arbitration agreem ent that was m odif ied b y Ru l e 1 1 Agreem ent, as is the situation here.

Mary G reeso n ’s A

p p ellee’s Brief P a g e ii GRE E SONA PE L L E E BRIE F

. w pdTABLE OF CONTENTS

Statem ent Regarding Oral Argum ent.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Table of Contents.

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statem ent of

Facts.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Summ ary of the Argum ents.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Argum ents and Authorities.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. Standard of review.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. Argum ents.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Court Lacks Jurisdiction.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Bay lor Failed to Preserve Any Error.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Appellant Made No Objection in the Trial Court

. . . . . . . . . . . . . . . 10 2. Appellant Raises No Proper Issue on Appeal

. . . . . . . . . . . . . . . . . . 12 C. Trial Court Correctly Found An Agreem ent to Def er Arbitration..

. . . . . . 14 D. Trial Court Correctly Found No Breach and No Material Breach.

. . . . . . 15 E. Appellant is Not Entitled to Attorney ’s Fees.

. . . . . . . . . . . . . . . . . . . . . . . 17 Conclusion.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Pray e r. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Certif icate of Filing and Service.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Certif icate of Com pliance.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Mary G reeso n ’s A

p p ellee’s Brief P ag e iii GRE E SONA PE L L E E BRIE F

. w pdINDEX OF AUTHORITIES Cases Page Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc. , 347 S.W .3d 897 (Tex.App.–Dallas, 2011, pet. denied).

. . . . . . . . . . . . . . . . . . . . . 8 Cantella & Co., Inc. v. Goodwin , 924 S.W .2d 943 (Tex. 1996).

. . . . . . . . . . . . . . . . . . . . 9 Celmer v. McGarry , 412 S.W .3d 691 (Tex.App.–Dallas 2013, pet. denied).

. . . . . . . . . . . 9 City of Keller v. W

ilson , 168 S.W .3d 802 (Tex. 2005).

. . . . . . . . . . . . . . . . . . . . . . . . 6, 15 Lopez v. Munoz, Hockema & Reed, L.L.P. , 22 S.W .3d 857 (Tex. 2000).

. . . . . . . . . . . . 16 McKinney v. National Union Fire Insurance of Pittsburgh, Pennsylvania , 772 S.W .2d 72 (Tex. 1989).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Nutt v. Members Mut. Ins. Co. , 474 S.W

. 2d 575 (Tex.App.–Dallas 1971, writ ref ’ d n.r.e.).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Vingcard A.S. v. Merrimac Hospitality Sys. , 59 S.W .3d 847 (Tex.App.–Fort W orth 2001, pet. denied).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 W al-Mart Stores, Inc. v. McKenzie , 997 S.W .2d 278 (Tex. 1999).

. . . . . . . . . . . . . . . . . 10 Statutes and Rules: Page 9 U.S.C. § 16.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 19 T E X . C IV . P R A C . & R E M . C O D E § 38.001.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 T E X . C IV . P R A C . & R E M . C O D E § 38.002.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 19 T E X . C IV . P R A C . & R E M . C O D E § 51.016.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 18 T E X . R. A P P . P. 33.1.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14, 18, 20 T E X . R. A P P . P. 38.1(f

).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14 T E X . R. A P P . P. 52.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mary G reeso n ’s A

p p ellee’s Brief P ag e iv GRE E SONA PE L L E E BRIE F

. w pdS TATEMENT OF FACTS

The s tatem ent of f

acts in Ap p e l lant’s Brief is inadequate as it om its the evidentiary adm issions by Appellant Bay lor University Medical Center (“Bay lor”) the Trial Court relied upon to f ind Mary Greeson and Bay lor agreed to c onduct lim ited discovery and m ediate the

case bef ore arbitration. Appellant argued below, and argues on appeal, that i ts Occupational Injury Benef

it Plan required the Trial Court to order the case t o a rb i t r a t ion. CR P177 and Appellant’s Brief P8 T he Occupational Injury Benef it Plan has an arbitration provision. CR P44-107 T h e arbitration provision also includes the statem ent: “ All c laims or disputes described below that cannot otherwise be resolved betwee n B a y l or and you are subject to f inal and binding arbitration.” CR P88 To respond to A ppellant’s a rbitration a r gum ent, M ary Greeson s h o w e d t h e T r i a l C o u

r t that t h e parties’ R

ule 1 1 Agreem ent def

erred a r bitration until af

ter lim ited discovery and af ter the pa r t i e s c onducted m e diation to try to settle the dispute. CR P110-113 1 Am ong other things, the original Rule 11 Agreem ent provided the f ollowing: 3. The law suit should be abated p ending a p ossible agreed r esolution of the arbitration issue and w hile the parties seek to r esolve the dispute through m ediation; 4. Deadlines in the case w ill be abated ... 5. Lim ited discovery w ill be accom p lished d uring the abatem e nt, including:

a. paper d iscovery of interrogatories, requests f o r p roduction, requests for adm issions and/or requests for disc l o s u r e as allow ed under

1 Throug hout this B rief unless otherwise stated, Greeson’s references to the parties’ Rule 11 Ag reement include the orig inal Rule 11 Ag r eement of November 15, 2013 and the amended Rule 11 Ag reement of F e bruary 10, 2014. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 GRE E SONA PE L L E E BRIE F

. w pdthe Tex a s Rules of Civil Procedure to be com pleted by Dec e mb e r 31, 2013; b. cert a i n d epositions, w hich m ay include a r epresentative of D e f e ndant, Juanita Fuentes w ho is a nurse aid, D orothy Douglas w ho i s a n urse m anager and Mary Greeson to be com pleted by January 31, 2014; and

c. the parties m ay agree to further discovery and/or to e x t e n d the deadlines to com plete such discovery . 6. The parties w ill m ediate this case w ith M ark Gilbert no later than February 28, 2014. .... 2 The parties later extended c ertain deadlines in their am ended R ule 1 1 Agreem ent. 3 Appellant adm itted that Mar y G reeson was and is entitled t o discovery by the parties’ Rule 11 Agreem ent. RR P19, L8-9 B u t a ll of the d iscovery that was agreed upon has not been

com pleted. RR P11, L16-22 And the parties have not been to m ediation. RR P10, L16-18 Mary Greeson did not s ubm it copies of her discovery r esponses when she r esponded to Bay l or’s m otions heard by the Associate Judge. CR P1 4 6 - 1 50 Consistent with T E X . G O V ’ T C O D E § 54.510(e), Greeson also did not o f f er h er discovery r e s p o n s e s when she appealed the Associate Judge’s r ulings. C R P161-171 But the Trial C ourt heard and had the opportunity to consider evidence that Greeson com plied with the r equirem e nts of the parties’ Rule 1 1 Agreem ent with the binding adm issions m a de by Appellant’s c ounsel at the October 3, 2014 hearing. RR P17, L7-11 and RR P17, L18-25 In the Trial C ourt, a nd on appeal, Appellant repeatedly argues that Greeson wholly f ailed to satisf

y her discovery o b ligations under the parties’ Rule 11 Agreem ent. CR P107,

2 CR P110-111. 3 CR P112-113. Mary G reeso n ’s A

p p ellee’s Brief P ag e 2 GRE E SONA PE L L E E BRIE F

. w pdCR P 184 and Appellant’s Brief P12-14 The e n t i r e record shows the inaccuracy of this

claim however. CR P1-223 On January 22, 2014, Greeson served h er discovery responses. C R P 2 7 T h e discovery was s ent by letter to Appellant’s counsel that explained Mar y G r eeson’s “f

am i ly situation has been hectic and she had another s urgery on Decem be r 1 9 , 2013. This was unexpected and hindered our ability to respond t o discove r y . ” CR P27 Docum ents responsive to Appellant’s discovery requests were also served. CR P27 Appellant a rgu e d i n t h e Trial Court that the Rule 1 1 Agreem ent did n ot require certain d epositions that were not com pleted. RR P10, L1-7 A p pellant also argued that Greeson never of

f ered Appellant d ates f

or Greeson’s own deposition. R R P10, L25 to P11, L1 But the record shows these claim s are incorrect. The Rule 11 Agreem e nt provided f or depositions, including “a r epresentative of Def endant, Juanita Fuentes w ho is a nurse aid, [ a n d ] Dorothy D ouglas who is a nurse m anager and Mary Greeson

. . .”. CR P 1 1 0 - 1 1 3 Greeson also of

f ered two weeks in January and F ebruary 2014 when the depositions could be com pleted. CR P27 A p p e llant argued below “there’s not a shred of evidence f rom Plaintif

f of an y shortcom i ngs by Bay lor i n the discovery process.” R R P11, L10-11 B ut Appellant adm itted it never produced its em

ploy ees and representatives f or deposition, contrary to the Rule 11 Agreem ent. RR P11, L16-20 Appellant argued this f ailure to p roduce witnesses was appropriate because it did not h ave Mary Greeson’s m edical records that it needed. RR P11, L18-25 But the Rule 11 A greem ent did not perm it, nor require, the delay of depositions until af ter Appellant obtained Mary Greeson’s m edical records. C R P110-113 More im portantly , Mary G reeso n ’s A

p p ellee’s Brief P ag e 3 GRE E SONA PE L L E E BRIE F

. w pdaf

ter repeatedly arguing that G reeson had f ailed to m eet h e r d iscovery obligations at the hearing on October 3, 2014, Appellant eventually adm itted that Greeson had produced the

m edical records and m e dical bills in her p ossession, although she had f ew r ecords. RR P17, L7-11 4 Appellant also e ve n t u a l l y a d mi t t e d i t h a d a l l o f M a r y Greeson’s m edical records f rom her treatm ent at Bay l or University Medical Center and h er records of treatm ent by Bay lor doctors. RR P17, L18-25 5 W i th all of its argum ents about discovery , a nd whether or not Mary Greeson satisf ied her discovery obligations, the real crux of Appellant’s argum ent below was that Greeson

m at e r i a l l y b r e ached the Rule 11 Agreem ent. CR P178 and R R P11, L 7 The T r ial Court considered t h i s breach of c ontract argum ent when i t heard Mary Greeson’s a p peal of the Associate Judge’s ruling and correctly rejected the argum ent b a s e d o n evidence f rom Appellant itself that Greeson had satisf ied her discovery obligations. CR P212 Appellant also argued the Rule 1 1 Agreem ent was not an a greem ent to d ef er arbitration. CR P177-178 But the plain language o f the Rule 11 Agreem ent, and the p arties’ s u b s e q u e nt conduct, provided am

ple evidence f

or the Trial Court to also reject this argum ent. CR P110-113

4 MR. DUNL EAVY: ... W e' ve g iven them all the medical -- and I told J udg e Purdy

this. W e ' ve g iven them all the medical records and all the medical bills that Mary Greeson has. MS. ACKEL S: W hich is almost nothing

. MR. DUNL EAVY: W hich is almost nothing

.

5 MS. ACKEL S: I have one caveat to that, Your Honor, which is Plaintiff' s counsel is absolutely

correct, that when Ms. Greeson sustained the alleg ed work injury at B aylor Hospital, she was subsequently

treated by

B aylor Hospital phy sicians. And Plaintiff' s counsel is correct that we have those records, and the B aylor doctors decided that it was a preex isting condition. (emphasis added). Mary G reeso n ’s A

p p ellee’s Brief P ag e 4 GRE E SONA PE L L E E BRIE F

. w pdFollowing entry of the Trial Court’s Order, Appellant f ile d i t s N o t i ce of Appeal on October 13, 2014. CR P213-214 Appellant also f iled a Request f

or P reparation of Clerk’s Record on October 17, 2014. C R P215-217 B ut Appellant did not f ile any objection to the Court’s ruling, nor did Appellant f ile any m otion f

o r r e c o n s i d e ration, a f

t er the Trial Court entered the October 3, 2014 Order. CR P1-223 Appellant never requested a ruling f rom the Trial Court that its Occupational Injury Benef it P lan required the d ispute to be arbitrated. CR P1-223 Appellant never objected to the Trial Court’s f

ailure to rule that the Occupational Injury Benef it Plan required arbitration. CR P1-223 A p p e l l a n t never requested a r uling f rom the T rial Court that Mary Greeson breached, or m ate r i a l l y b reached, the parties’ Rule 11 Agreem ent. CR P1-223 Appellant

never objected to the Trial Court’s f ailure to rule that M ary Greeson breached, or m aterially breached, the parties’ Rule 11 Agreem ent. C R P1-223 Appellant presented no evidence that it m ade a dem and f

or attorney ’s f

ees as required by T E X . C IV . P R A C . & R E M . C O D E § 38.002. CR P1-223 Appellant never r equested a ruling f rom the Trial C ourt that i t w as entitled to attorney ’s f

ees. CR P1-223 Appellant never o bjected to the Trial Court’s f ailure to rule that it was entitled to attorney ’s f ees. CR P1-223 SUMMARY OF THE ARGUMENTS This Court lacks jurisdiction to hear this appeal because the Trial Court did not deny Bay lor’s r equest to send the dispute to arbitration. The o rder com plained of i s not “hostile to a rbitratio n ” and no basis f or this appeal is f

ound in T E X . C IV . P R A C . & RE M . C O D E § 51.016, nor in 9 U.S.C. § 16. The Trial Court correctly ruled that the parties agreed to def er
Mary G reeso n ’s A

p p ellee’s Brief P ag e 5 GRE E SONA PE L L E E BRIE F

. w pdarbitration until a f ter com pleting certain lim ited discovery and af ter com pleting a m ediation to a ttem pt to resolve the parties’ dispute. The Trial Court was also c orrect to determ ine that Mary Greeson did not breach the parties’ a greem e n t that d e f e rred arbitration in order to conduct discovery

and to m ediate the dispute. Appellant f

ailed to preserve a ny error i n this a ppeal becau s e i t s o n l y two issues on appeal do not challenge the Trial Court’s O ctober 3, 2014 O r der that Appellant appeals. Additionally , Appellant never sought a ruling f rom the Trial Court that Mary Greeson was required to arbitrate the dispute; Appellant never sought a r u l i n g f rom the Trial Court that Greeson breached or m a terially breached the Rule 11 Agreem e n t ; a n d A p p e l l a n t n e ver sought

a ruling on its request f

or attorney ’s f

ees, nor did Appellant prove its entitlem ent to attorney ’s f e es. S im ilarly , Appellant never objected to the T rial Court f ailure or ref

usal to m ake th e rulings Appellant now insists it was entitled to.

ARGUMENTS AND AUTHORITIES I. Standard of Review Bay lor correctly s tated the standard of r eview f or q uestions of law a s a de novo review. But no q

uestions of law are at issue in this appeal. Instead, the appropriate standard of review in this c ase i s a suf f iciency of evidence r eview. 6 And the p roper issues f or the Court to consider are 1) whether any evidence supports the Trial Court’s judgm ent that the parties agreed to def

er arbitration; and 2) whether any evidence supports the Trial Court’s judgm ent that Mary Greeson did not breach, or did not m aterially breach, the parties’ Rule

6 City of Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex .2005). Mary G reeso n ’s A

p p ellee’s Brief P ag e 6 GRE E SONA PE L L E E BRIE F

. w pd11 Agreem ent to def er arbitration, conduct discovery and m ediate the dispute. II. Argum ents A. Court Lacks Jurisdiction This Court lacks j urisdiction t o hear this i nterlocutory a ppeal because no statute conf ers jurisdiction and the Trial Court entered no order “hostile t o arbitration”, contrary to Appellant’s claim s. Bay lor cited T E X . C IV . P R A C . & R E M . C O D E § 5 1

. 016 in its Notice of Appeal a s the j u r i sdictional basis f or this i nterlocutory appeal. 7 But Section 5 1.016 only allows interlocutory appeals if the appeal w ould be p erm itted b y the F E D E R A L A R B IT R A T IO N A C T . 8 Specif

ically , T E X . C IV . P R A C . & R E M . C O D E § 51.016 states as f ollows: S e c . 51.016. A PPEAL A RISING UNDER FEDERAL ARBITRATION ACT. In a m atter s ubject to the Federal Arbitration A ct (9 U.S.C. S ection 1 et seq.), a person m ay t ake an appeal or w rit of erro r t o t h e c ourt of appeals f r o m the judgm ent or interlocutory order of a d istrict court, county court at l aw , or county court under the sam e circum stances t hat an appeal from a federal district court's order or d e c i s i o n w ould be perm itted by 9 U.S.C. Section 16. This Court h as said interlocutory a ppeals under the F E D E R A L A R B IT R A T IO N A C T are lim ited to the situations listed i n the F E D E R A L A R B IT R A T IO N A C T , which s tates, in part, as f ollows: a) An appeal m ay be taken from — (1) an order— (A) refusing a stay of any action under section 3 of this title, (B) deny ing a petition under section 4 o f this title to order arbitration to proceed, (C) deny ing an application under section 206 of this title to com pel a rbitration, (D) confirm ing or deny i ng confirm ation of an aw ard or partial aw ard, or (E) m odify ing, correcting, or vacating an aw ard;

7 CR P213. 8 T E X . C I V . P R

A C . & R E M . C O D E§ 51.016. Mary G reeso n ’s A

p p ellee’s Brief P ag e 7 GRE E SONA PE L L E E BRIE F

. w pd(2) an interlocutory o rder gra n t i n g , continuing, o r m odify ing an injunction

against an arbitration that is subject to this title; or (3) a final decision w ith respect to an arbitration that is subject to this title. 9 Sim ilarly , this Court has also stated when i nterlocutory appeals are n ot perm i tted under the F E D E R A L A R B IT R A T IO N A C T , which provides in part, as f ollows: (b) E x c e p t as otherw ise provided in s ection 1292 (b) of title 28, an a ppeal m ay not be taken from an interlocutory order— (1) granting a stay of any action under section 3 of this title; (2) directing arbitration to proceed under section 4 of this title; (3) com pelling arbitration under section 206 of this title; or (4) refusing to enjoin an arbitration that is subject to this title. 1 0 None of the circum stances d escribe d i n 9 U.S.C. § 16 apply h ere. As a result, T E X . C IV . P R A C . & R E M . C O D E § 51.016 a lso does not apply and this Court lacks jurisdiction to hear this interlocutory

appeal. Contrary to A ppellant’s a rgum ents, the Trial Court did not deny a request to send this dispute to arbitration. 11 Rather, the Trial C ourt accepted the parties’ intent, expressed in their Rule 11 Agreem e nt, to attem pt t o r esolve the dispute bef ore any arbitration by conducting lim ited discovery a n d then m ediating the dispute w ith a m ediator chosen by the parties. 12 Appellant now asks this Court to ignore the plain language and the clear intent of the Rule 11 Agreem ent to d ef

er a rbitration. Greeson s hows the Trial Court gave ef f ect to the parties’

9 Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc. , 347 S.W .3d 897, 900 (Tex

. App.–Dallas, 2011, pet. denied) (citing 9 U.S.C. § 16). 1 0Id. 1 1 CR P212. 1 2 I d.; and CR P110-113. Mary G reeso n ’s A

p p ellee’s Brief P ag e 8 GRE E SONA PE L L E E BRIE F

. w pdintent and this Court should do the sam e.

W h ether or not M ary Greeson agreed to arbitrate this d ispute, she c l e a r l y a g reed to delay arbitration until af

t er the com

pletion of d iscovery

and m ediation. 13 W hile Appellant d isputes the ef

f e ct of the Rule 11 Agreem ent i t entered into, Appellant cannot dispute the plain language of the arbitration p rovision i n its Occupational Injury Benef it Plan that also requires the ef

f ort to resolve disputes bef ore arbitration. 14 In t h e Trial C ourt, Appelant noted that “Texas a nd Federal public policy strongly f avor the subm ission of disputes to a rb i t r a t i on.” 15 But e ven the cases cited by Appellant show the public policy f

avoring arbitration is based on a parties’ r ight to agree to arbitrate. 16 In f a c t, the Cantella opinion cited by B ay lor notes an agreem ent t o arbitrate is a f undam ental elem ent that m

ust be e stablished bef

ore a court m ay o rder arbitration. 1 7 While Greeson does not c oncede the Occupational Injury Ben e f i t P l a n includes an enf

orceable a g reem ent to arbitrate, Greeson notes A ppellant’s contention that the Occupational I njury Benef it Plan is

an enf orceable agreem ent requiring arbitration. 18 Appellant also recognized that agreem ents to arbitrate are evaluated under general principles of contract law. 19 And as a c ontract, the Occupational Injury Benef it Plan could be m odif

ied, or clarif

ied by a m eeting of the m inds. 20

1 3 CR P110-113. 1 4 CR P88. 1 5 CR P34. 1 6 I d. (citing Cantella & Co., Inc. v. Goodwin , 924 S.W .2d 943, 944 (Tex . 1996)). 1 7 Id. 1 8 Appellant’s B rief, P18. 1 9 I d. 2 0 Celmer v. McGarry , 412 S.W .3d 691, 702 (Tex .App.–Dallas 2013, pet. denied). Mary G reeso n ’s A

p p ellee’s Brief P ag e 9 GRE E SONA PE L L E E BRIE F

. w pdThe evi d ence considered by the Trial Court supported the f inding that the parties

am ended any agreem e nt to arbitrate by their Rule 11 Agreem ent. CR P110-113 As such, it is clear the T rial C ourt did not d eny any request to arbitrate, nor did the Trial Court even delay arbitration by court action. Rather, the T rial Court order m akes c lear the lawsuit “will

rem ain abated, until the specif ic l im ited d iscovery set out in the parties’ Rule 11 Agreem ent is com pleted”. 21 Thus the delay of arbitration w as accom plished by the parties’ joint decision to com plete discovery and m ediation bef ore m oving to arbitration, which is clearly e v i d e n c ed by the Rule 11 Agreem ent. 2 2 As the Rule 11 Agreem ent was entered into by counsel f or two parties in a lawsuit, the Trial C ourt properly determ ined the ef f ect of the Rule 11 Agreem ent. Mary G reeson shows the sam e principle that underlies public policies f avoring arbitration – a party ’s right to c ontract – were the basis f or the Trial Court’s correct decision to abate this case. The parties here expressly agreed to def er arbitration in order to conduct discovery and m edi a t i o n . T h i s Court s hould reinf o rce the Trial Court’s acceptance of the parties’ agreem ent to delay arbitration by dism issing this appeal f or lack of jurisdiction as there is no f

inal order, nor even an interlocutory order deny ing arbitration in this case. B. Bay lor Failed to Preserve Any Error 1. Appellant Made No Objection in the Trial Court To preserve a com

plaint f o r review o n appeal, a party m ust present to the trial court

a t im ely request, m otion, or o bjection that states the specif ic grounds f

or the ruling requested

2 1 CR 212. 2 2 CR P110-113. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 0 GRE E SONA PE L L E E BRIE F

. w pdt h a t c o n f

o r m s t o the requirem ents of the rules of procedure and rules o f evidence. 23 A specif ic objection is one which e nables the trial court to understand the precise grounds so

as to m ake an inf

orm ed ruling, af

f ording the of

f ering p a r t y an opportunity to rem edy the def ect, if possible. 24 A n a p p e l l a nt m ust also show the trial court ruled on the request, objection, or m otion “ either expressly or im pliedly ”, or that the trial court “ref used to rule” and the appellant “ o b

j e c t e d to the ref

usal” to rule. 25 Appellant here f ailed to satisf

y either of these requirem ents in the Trial Court t o com plain of the Order granting Mary Greeson’s appeals of

the decisions by

the Associate Judge. Af ter the Trial Court vacated the ru l i n g s o f the Associate Judge, Appellant f iled its Notice o f Appeal on October 13, 2014 26 , and its R equest f or Preparation o f the Cl e r k ’ s Record on October 17, 2 014. 27 Appellant f iled no objection to the Trial C ourt’s ruling, Appellant f

i led no m otion f

or reconsideration and Appellant never subm itted any pleading

or a rgum ent to s tate the specif ic grounds f

or the rulings Appellant requested f r om the Trial Court af ter the entry of

the October 3, 2014 Order. 28 Appellant never requested a ruling f rom the Trial Court that its Occupational Injury Benef it Plan required the dispute to be arbitrated, nor did Appellant object to the Trial

2 3 W al-Mart Stores, Inc. v. McKenzie , 997 S.W .2d 278, 280 (Tex . 1999); and T EX . R. A P P . P. 33.1(a)(1)(A)-(B ).

2 4 McKinney v. National Union Fire Insurance of Pittsburgh, Pennsylvania , 772 S.W .2d 72, 74 (Tex . 1989) (interpreting T E X . R. A P P . P. 52, the predecessor to T EX . R. A P P . P. 33.1). 2 5 T E X . R. A P P . P. 33.1(a)(2)(A). 2 6 CR P213-214. 2 7 CR P215-217. 2 8 CR P1-223. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 1 GRE E SONA PE L L E E BRIE F

. w pdCourt’s f

ailure o r ref

usal to r ule. 29 Appellant never requested a r uling f rom the Trial Court that Mary Greeson b reached, or m a terially b reached, the parties’ R ule 11 A g reem ent, nor did Appellant object to the Trial Court’s f ailure or ref

usal to so rule. 30 Appellant presented no evidence in the Trial Court of any dem and f or attorney ’s f

ees as r equired by T E X . C IV . P R A C . & RE M . C O D E § 38.002, Appellant n e v er obtained any r uling f rom the Trial Court on its

re q u e s t f o r a t torney ’s f

e es, and A ppellant never o bjected to the Trial Court’s f ailure or ref usal to rule on its request f or attorney ’s f

ees. 31 As such, Appellant cannot bring to this Court its request f

o r an a w a r d of attorney ’ s f ees, given i ts f

ailure to preserve error on the issue of attorney ’s f

ees. 2. Appellant Raises No Proper Issue on Appeal A party com

plaining on appeal m

ust sta t e c o n c i s e ly in its brief “all issues or points presented f

or review.” 32 Appellant here f ailed t o satisf

y this requirem ent in T E X . R. A P P . P. 38.1 ( f ) b e cause neither o f its issues in this appeal c hallenge any ruling by the Trial Court. Appellant’s two issues in this appeal are stated as f ollows: 1. Did Grees on a gree to arbitrate claim s r elating to her alleged on-the-job i njury w h en she signed an Arbitration Agreem ent that c overs all claim s “relating to an on-the-job injury ” ? 3 3 2. Where the parties have a g r e e d to abate the case, i n the h opes of resolving t he dispute t hrough m ediation—and w here they ’ ve a greed t he case “w ill r em ain abated until a Motion to Re-Open i s filed by one of t he

2 9 I d. 3 0 I d. 3 1 I d. 3 2 T E X . R. A P P . P. 38.1(f). 3 3 Appellant’s B rief, P7. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 2 GRE E SONA PE L L E E BRIE F

. w pdparties”—can Bay lor m ove to r eopen the c ase and to com p el arbitration

w hen Greeson refuses to com ply w ith the plan for m e diation? 34 Appellant’s f

irst issue regarding whether M ary G reeson a greed to arbitrate is irrelevant to the Trial Court’s O rder that is com plained of

. At the hearing, Greeson a d v i s e d the Trial Court that i t was unn e c e s s a r y to address the issue of enf o rceability of the arbitration provision in Bay lor’s Occupational Injury B enef it Plan. 35 And the T rial Court’s Order of October 3 , 2014 does not address that issue. 36 Instead, the T rial Court’s Order v acating the Associate Judge’s rulings is prem ised on the Trial Court’s f actual determ ination that Mary Greeson and Bay lor agreed to def er arbitration to conduct discovery and m ediation, as well

as the additional f

a ctual determ ination that Greeson did n o t b r e a ch, or did not m aterially b r e a c h , the parties’ Rule 11 Agreem e nt. Because this issue is not any challenge, n o r a n y objection, to the Trial Court’s ruling, Appellant f ailed to preserve error by f a i ling to “state concisely all issues or points presented f or review” as required by T E X . R. A P P . P. 38.1(f

). In i ts second i ssue, Appellant com plains abou t w h e t h e r i t can “m ove t o reopen the

case and to com

p e l a rb i t r a tion when Greeson r ef uses to com

ply with the plan f

or

m ediation”. 37 In raising th i s i s sue, Appellant again f ails to m ake any com

plaint about a ruling by the Trial Court. T his is because the Trial C ourt correctly f ound Mary Greeson had not breached, or h a d n o t ma terially breached, the p arties’ Rule 1 1 Agreem ent. Greeson details m ore f

ully below the propriety of the Trial Court’s c orrect f inding that there was no

3 4 I d. 3 5 RR P13, L 16-19. 3 6 CR P212. 3 7 Appellant’s B rief, P7. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 3 GRE E SONA PE L L E E BRIE F

. w pdbreach of the Rule 11 Agreem e nt. In noting Appellant’s f ailure to state concisely this issue presented f

or review, Greeson shows this issue m erely assum es that Greeson “ref uses to

com ply with the p lan f

or m ediation”, b ut the Trial Cour t d e t e r m ined that Greeson did not breach the Rule 11 Agreem ent and Appellant does not by either of its issues challenge that correct f inding. A ccordingly , as Appel l a n t’s second issue is not any challenge, nor any objection, to the Trial Court’s ruling, Appellant f ails to preserve e r

ror as required by T E X . R. A P P . P . 33.1 and T E X . R. A P P . P. 38.1(f ). C. Trial Court Correctly Found An Agreem ent to Defer Arbitration The e vidence c onsidered by the Trial C ourt s u pports the f

inding that the parties agreed to def er arbitration. A ppellant argues in error that no such agreem ent exists. But it is clear f rom the parties’ Rule 11 A greem ent that Appellant and Greeson agreed to conduct discovery and and they a greed to m ediate their dispute bef ore any arbitration

. 3 8 D e s pite this clear evidence of a g r e e me n t , A ppellant argues there was no agreem ent to def er arbitration until af ter lim ited discovery

was conducted and af

ter m ediation. 39 Appellant is wrong. W h ile Appellant disputes the ef f e ct o f the Rule 11 Agreem ent, i t cannot dispute that its Occupational Injury B enef it P lan r e q u i r e s arbitration o nly f or disputes “ that cannot otherwise be resolved between Baylor and you . 40 The Trial Court considered the p arties Rule 11 Agreem ent; it considered Appellant’s expressed desire to obtain d iscovery 4 1 ; and the Trial

3 8 Rule 11 Ag reement, CR P110-113. 3 9 Appellant’s B rief, P12-14. 4 0 CR P88. 4 1 RR P20, L 15 to P21, L 6. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 4 GRE E SONA PE L L E E BRIE F

. w pdCourt considered Bay lor’s Occupational Injury Benef it Pla n that contem

plates an ef

f ort to resolve disputes bef

ore arbitration. W ith all of this evidence and inf o rm ation, the Trial Court correctly determ ined the parties had i n f act agreed to d ef

er arbitr a t i o n i n order to conduct

som e lim ited discovery

and com plete a m e diation. In r eviewing the Trial Court’s Order f or suf f iciency of evidence, this Court m ust view the evidence in the light f avorable to the Order, crediting t h e f a v o r a b le evidence if a

r e a s o n able f

act f inder could have given the evidence credit, and disregarding contrary evidence unless a r easonable f a ct-f inder could not disregard that evidence. 4 2 “If the evidence [ considered by the f

act-f inder] would enable reasonable a nd f air-m i nded people t o dif

f er in their conclusions, the [ f

act-f inder] m us t b e a llowed to do so.” 43 And this Court, as a “reviewing c ourt”, “ cannot substitute its judgm ent f o r that of the trier-of

-f act, so l ong as the evidence f

alls within this zone of reasonable disagreem e nt.” 44 The evidence m ay b e disputed, b u t com p etent evidence supports the Trial Court’s determ ination that the p arties h ere agreed in their Rule 11 Agreem ent to def e r arbitration, to conduct discovery

and to com

plete a m ediation bef

ore any arbitration. Accordingly , Mary Greeson respectf

ully shows this Court should not set aside the Trial Court’s Order, a s it is supported by c redible evidence and because Appellant f ailed to preserve e rror on this issue. D. Trial Court Correctly Found No Breach and No Material Breach Sim ilar to the Trial Court’s determ ination that the parties agreed to def e r arbitration,

4 2 City of Keller , 168 S.W .3d at 820. 4 3 Id. at 822. 4 4Id. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 5 GRE E SONA PE L L E E BRIE F

. w pdt h e c om

petent evidence also supports the Trial Court judgm ent that Mary Greeson did n o t breach, o r did n o t m aterially breach, the parties agreem e nt to d ef er arbitration. W ell settled Texas law m akes clear that one party to an agreem en t ma y n ot a c cept benef its f rom an agreem ent and then ref

use to perf

orm its own obligations under the agreem e nt. 45 Appellant comp l a i ned below about the details of Greeson’s perf orm ance of the parties’ Rule 11 Agreem ent, but the evidence bef ore the T r i al Court s upports a f inding that Greeson perf orm ed, or substantially

perf orm ed, her obligations under the Rule 11 Agreem ent. The record on a

ppeal shows Mary Greeson served her discovery r esponses o n January 22, 2014. 46 Greeson also e xplained a delay in providing the discovery

. 47 Docum ents responsive to Appellant’s discovery requests were also served. 4 8 S im ilarly , the record shows Greeson of

f ered two entire weeks in January a n d February 2014, w hen the deposit i o n s of Appellant’s witnesses and the deposition of Mary Greeson could be com

pleted. 49 Despite k n owing Greeson served her discovery responses and produced r esponsive doc u ments, Appellant repeatedly argued to the Trial Court that Greeson f ailed to m eet her discovery obligations. 50 But a t the October 3, 2014 hearing, Appellant adm itted G reeson had produced m edical records and m edical bills in her possessio n , although she had f ew

4 5 See Lopez v. Munoz, Hockema & Reed, L.L.P. , 22 S.W .3d 857, 864 (Tex . 2000); and Nutt v. Members Mut. Ins. Co. , 474 S.W .2d 575, 578 (Tex .App.–Dallas 1971, writ ref’d n.r.e.).

4 6 CR P27. 4 7 I d. (Mary

Greeson’s “family

situation has been hectic and she had another surg ery on December 19, 2013. This was unex pected and hindered our ability to respond to discovery .”) 4 8 I d. 4 9 I d. 5 0 CR P107; and CR P184, among others. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 6 GRE E SONA PE L L E E BRIE F

. w pdrecords. 5 1 Appellant also adm itted it had Greeson’s m edical records f rom Bay lor University Medical Center and her record s f r o m Bay lor doctors. 52 And Appellant a cknowledged the letter that included Greeson’s of f er of deposition dates to Appellant. 53 In this second suf

f iciency of evidence analy s is, the Court again views the evidence in the light f

avorable to the Order, crediting f a v orable evidence, and disregarding contrary evidence unless the f

act-f i nder could n ot disregard the contrar y e v i d e n ce. 54 And if reasonable and f

air-m inded people can dif f er i n their conclusions, the f act-f inder here m

ust also be a llowed to d o so.” 5 5 T h is Court cannot substitute its j udgm ent f or that of the Trial Court, as long as s om e evidence supports the Trial Court’s Order. 5 6 B ecause the Trial Court correctly d ecided that Greeson had not breached, or had not m aterially breached, the parties’ Ru le 11 Agreem ent, and because that judgm ent is s u pported by credible evidence, Mar y Greeson respectf

ully subm its that this Court should not set aside the Trial Court’s Order. E. Appellant is Not Entitled to Attorney ’s Fees Appellant claim s it is entitled to attorney ’s f ees and costs on with this appeal. 57 Appellant seeks attorney ’s f ees based up o n t h e t e r ms of T E X . C IV . P R A C . & R E M . C O D E §

5 1 RR P17, L 7-11 (MR. DUNL EAVY: ... W e ' v e g iven them all the ... medical records and all the medical bills that Mary Greeson has. MS. ACKEL S: W hich is almost nothing .). 5 2 RR P17, L 18-25 (MS. ACKEL S: “Plaintiff' s counsel is correct that we have those [ medical] records ...”.

5 3 RR P11, L 18-19. 5 4 City of Keller , 168 S.W .3d at 820. 5 5 Id. at 822. 5 6Id. 5 7 Appellant’s B rief, P28. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 7 GRE E SONA PE L L E E BRIE F

. w pd38.001(8). 58 But as w ith A ppellant’s other contentions a n d a r g um e nts in this appeal, the

claim f or attorney ’s f

ees is not supported by

the f acts, nor by

Texas law. As noted above, Appellant did not obtain any ruling f rom the Trial Court that Mary Greeson breached, or m aterially breached, the parties’ Rule 11 Agreem ent and Appellant f ailed to o bject to this f

ailure or ref

usal of the Trial Court to rule. 59 Appellant also presents

no evidence that it m ade a dem and f or attorney ’s f

ees. 60 A dem and m

u st be m ade to establish entitlem ent to attorney ’s f ees under T E X . C IV . P R A C . & R E M . C O D E § 3 8.002. 61 Greeson also shows that A ppellant never requeste d a r uling f rom the Trial Court that it was entitled to attorney ’s f

ees and Appellant never objected to the lack of a r uling on its c laim f

or attorney ’s f ees. 62 As Appellant f

a iled to show it satisf

ied the statutory p rerequis i t e s f o r a n award of attorney ’s f

ees under T E X . C IV . P R A C . & R E M . C O D E § 38.002; as Appellant f ailed to preserve

error by f ailing to obtain a ruling on its attorney ’s f ees claim and by f ailing to object to the lack of a ruling on its attorney ’s f ees claim ; and a s A p p e l l a n t f ailed to raise any issue on appeal regarding its claim f or a ttorney ’s f

ees as requi r e d b y T E X . R. A P P . P. 33.1, Mary Greeson respectf

ully shows this Court should reject Appellant’s claim f o r attorney ’s f

ees. CONCLUSION Appellee Mary Greeson has shown clearly that this Court lacks juris d i c t i on to hear

5 8 I d. 5 9 CR P1-223. 6 0 I d. 6 1 Vingcard A.S. v. Merrimac Hospitality Sys. , 59 S.W .3d 847, 867 (Tex .App.–F ort W orth 2001, pet. denied).

6 2 CR P1-223. Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 8 GRE E SONA PE L L E E BRIE F

. w pdthis appeal because the Trial Court did not deny Bay lor’s r e q u e s t to send this dispute to

arbitration and because the Trial Court’s order that Appellant com plains o f is not “hostile to arbitration”. As such, there is no basis in T E X . C IV . P R A C . & R E M . C O D E § 51.016, nor i n 9 U.S.C. § 16, f

or this Court to f

ind it h as jurisdiction over this appe a l

. G r e eson also established that the Trial Court correctly f o und the parties agreed t o d e f e r a rbitration until af t e r c om pleting certain lim ited discovery and a f t er com pleting a m ediation to attem pt to resolve the parties’ dispute; and that the Trial Court was correct i n f inding that Mary Greeson did not breach the parties’ agreem ent that def erred arbitration in order to conduct discovery and to m ediate the d i s p u t e . Because the Trial Court correctly r uled b ased upon suf

f icient

com petent evidence, a f

ter a suf f iciency of evidence review, this Court should af f irm the Trial Court’s Order vacating the Associate Judge’s rulings. Next, i t is c lear Appellant f a i l e d t o p reserve any error in this appeal by i ts only two issues on appeal do not challenge the Trial Court’s October 3, 2 0 1 4 O rder that Appellant appeals. Appellant never s ought or obtained any ruling f rom the T rial Co u r t t h a t M a r y Greeson was required to arbitrate the dispute; Appellant never sought or o btained any ruling f rom the Trial Court that Greeson breached or m aterially breached the R ule 11 A greem ent; and Appellant never s ought or obtained any r uling on its request f

o r attorney ’s f

ees. Sim ilarly , Appellant n ever objected to the Trial Court f ailure or ref

usal to m a k e the rulings Appellant now insists i t w as entitled to. Given these m ultiple f ailures o f Appellant, M a r y Greeson shows this Court should deny this appeal in its entirety

. Finally , A ppellant f

ailed t o plead and prove its entitlem en t t o a t t orney ’s f ees in the

Mary G reeso n ’s A

p p ellee’s Brief P ag e 1 9 GRE E SONA PE L L E E BRIE F

. w pdTrial Court. Appellant specif ically f ailed to establish that i t m ade any dem and as required under T E X . C IV . P R A C . & R E M . C O D E § 38.002. Appellant also f a iled to preserve e r r o r by f ailing to obtain a ruling on i t s a t t orney ’s f ees claim ; by f

ailing to object to the lack of a ruling on its attorney ’ s f

ees claim ; and by f

ailing to raise any issue on a p peal on its claim f

or attorney ’s f

e es as r equired by T E X . R. A P P . P. 33.1. Accordingly , Mary Greeson also requests that this Court reject Apellant’s claim f or attorney ’s f

ees. PRAYER Appellee Mary G r e e s on respectf ully pray s that this Court af f irm the Trial Court’s Order of October 3, 2014 and award Greeson her costs of this appeal. Respectf ully subm itted, LAW OFFICES OF W ILLIAM J. DUNLEAVY, P.C. /s/ W illiam J. Dunleavy W illiam J. Dunleavy Texas Bar No. 00787404 825 Market Street Building M, Suite 250 Allen, Texas 75013 Telephone: 972/247-9200 Facsim ile: 972/247-9201 E-m ail: bill@ william

jdunleavy .com Attorney f

or Appellee Mary

Greeson

Mary G reeso n ’s A

p p ellee’s Brief P ag e 2 0 GRE E SONA PE L L E E BRIE F

. w pdCERTIFICATE OF FILING AND SERVICE

I certif y that I electronically f

iled M ary Greeson’s Appellee’s Brief on April 6, 2015 and a true and correct c opy of Mary Greeson’s Ap p e l l e e ’ s Brief w as also served electronically through the Texas E -f ile s y stem on April 6, 2015 u pon counsel f

or Appellant Bay lor University

Medical Center: Jay M. W allace Alana K. Ackels Bell Nunnally

& Martin 3232 McKinney

Avenue, Suite 1400 Dallas, Texas 75204 /s/ W illiam J. Dunleavy W illiam J. Dunleavy CERTIFICATE OF COMPLIANCE In accordance with the Texas Rules o f Appellate Procedure, I c e r t i f y that Mary Gr e e s o n ’ s A ppellee’s Brief contains 5 ,943 words, and I relied on the word count of the W o rdPerf ect program

I used to prepare Appellee’s Reply Brief

. Dated: April 6, 2015 /s/ W illiam J. Dunleavy W illiam J. Dunleavy

Mary G reeso n ’s A

p p ellee’s Brief P ag e 2 1 GRE E SONA PE L L E E BRIE F

. w pd