NO. 13-15-00362-CV

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI-EDINBURG, TEXAS

MCALLEN HOSPITALS, L.P., MCALLEN HOSPITALS, L.P. D/B/A

MCALLEN MEDICAL CENTER, MCALLEN MEDICAL CENTER, 

MCALLEN HOSPITALS, L.P. D/B/A SOUTH TEXAS HEALTH SYSTEM

AND SOUTH TEXAS HEALTH SYSTEM, 

Defendants – Appellants, 

v.

MARIO RODRIGUEZ AND LUDIVINA IRACHETA,INDIVIDUALLY

AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR, 

Plaintiffs – Appellees. 

On Appeal from the 389th District Court, Hidalgo County, Texas 

Trial Court Cause No. C-2334-12-H 

BRIEF OF APPELLEES

MITHOFF LAW

Richard Warren Mithoff

State Bar No. 14228500

rmithoff@mithofflaw.com

Joseph R. Alexander, Jr.

State Bar No. 00995150

jalexander@mithofflaw.com

Warner Hocker

State Bar No. 24074422

whocker@mithofflaw.com

500 Dallas, Suite 3450

Houston, TX 77002

(713) 654-1122

(713) 739-8085 (Fax)

BECK REDDEN LLP

Russell S. Post

State Bar No. 00797258

rpost@beckredden.com

Patrice B. Childress

State Bar No. 24059569

pchildress@beckredden.com

Kyle Lawrence

State Bar No. 24087895

klawrence@beckredden.com

1221 McKinney, Suite 4500

Houston, TX 77010-2010

(713) 951-3700

(713) 951-3720 (Fax)

Counsel for Plaintiffs – Appellees 

Oral Argument Not Requested

ACCEPTED

13-15-00362-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

12/22/2015 1:05:53 PM

Dorian E. Ramirez

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/22/2015 1:05:53 PM DORIAN E. RAMIREZ Clerk
IDENTITY OF PARTIES AND COUNSEL

In addition to the counsel listed in Appellant’s Brief, please note the 

appearance of the following additional counsel for Appellees Mario Rodriguez and 

Ludivina Iracheta, Individually and as Next Friends of Xxxxx Xxxxxxxxx, A 

Minor:

Kyle Lawrence

State Bar No. 24087895

klawrence@beckredden.com

BECK REDDEN LLP

1221 McKinney, Suite 4500

Houston, TX 77010-2010

(713) 951-3700

(713) 951-3720 (Fax)
ii

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL..................................................................i

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES .....................................................................................v

STATEMENT OF THE CASE..................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ....................................................ix

ISSUES PRESENTED.............................................................................................x

INTRODUCTION...................................................................................................1

STATEMENT OF FACTS .......................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................15

STANDARD OF REVIEW: ABUSE OF DISCRETION .............................................16

ARGUMENT AND AUTHORITIES........................................................................17

I. MMC waived its appeal by failing to challenge all grounds that 

support the trial court’s ruling. ......................................................................17

A. On appeal, MMC argues only that it was not timely served 

with expert reports...............................................................................18

B. Plaintiffs asserted another ground to deny the motion to 

dismiss, which MMC fails to challenge on appeal. ............................18

C. The Court should affirm the trial court’s ruling based on the 

unchallenged ground. ..........................................................................19

II. The trial court correctly found that MMC waived any objection to 

the timeliness of service. ...............................................................................19

A. Chapter 74 rights can be waived. ........................................................20

B. MMC’s affirmative representations and subsequent silence 

each support a finding of waiver.........................................................20
iii

III. Plaintiffs satisfied Section 74.351 by serving the expert reports on 

counsel authorized to accept them on behalf of MMC. ................................23

A. Gonzalez and Castillo were granted express authority to act 

as counsel for MMC for purposes of accepting the expert 

reports..................................................................................................23

1. The insurer, JUA, had the right to choose counsel and 

control the defense on behalf of MMC.....................................23

2. JUA engaged Castillo and Gonzalez on behalf of 

MMC and authorized them to accept service of 

Chapter 74 reports.....................................................................24

3. An enforceable Rule 11 agreement allowed Plaintiffs 

to serve the reports on Gonzalez and Castillo...........................25

B. MMC’s last-ditch arguments are unavailing.......................................25

1. The manner of service is immaterial in this case......................26

2. There was no “attorney in charge” to be served and 

the parties agreed to an alternative form of service..................26

3. MMC’s other arguments are irrelevant.....................................28

C. MMC’s evidentiary objections are unpreserved and 

insubstantial.........................................................................................28

1. Any evidentiary complaint has been waived by 

inadequate preservation and inadequate briefing. ....................29

2. The authenticity objection was invalid. ....................................30

3. The hearsay objection was invalid............................................30

4. MMC has not demonstrated that any error was 

harmful. .....................................................................................31

CONCLUSION AND PRAYER FOR RELIEF...........................................................32

CERTIFICATE OF SERVICE ................................................................................34

CERTIFICATE OF COMPLIANCE.........................................................................35
iv

APPENDIX

Order denying MMC’s Motion to Dismiss (CR 402) ............................ TAB A

DX 11 (3 RR 136)................................................................................... TAB B

Email from PX2 (3 RR 40)..................................................................... TAB C

PX8 (3 RR 74-75)................................................................................... TAB D

Email from PX2 (3 RR 45)......................................................................TAB E

PX1 (3 RR 6-7)........................................................................................TAB F

Excerpts of Steve Gonzalez Testimony (2 RR 43-44, 52, 57-58, 

76-77)......................................................................................................TAB G
v

INDEX OF AUTHORITIES

CASE PAGE(S)

Am. Transitional Care Ctrs. v. Palacios

46 S.W.3d 873 (Tex. 2001).................................................................................16

Britton v. Texas Dep’t of Criminal Justice

95 S.W.3d 676 (Tex. App.—Houston 

[1st Dist.] 2002, no pet.) .....................................................................................17

Columbia Rio Grande Regional Hosp. v. Stover

17 S.W.3d 387 (Tex. App.—Corpus Christi 

2000, no pet.) ......................................................................................................29

Daniels v. Yancey

175 S.W.3d 889 (Tex. App.—Texarkana 

2005, no pet.) ......................................................................................................31

In re Elamex, S.A. de C.V.

367 S.W.3d 879 (Tex. App.—El Paso 

2012, no pet.) ................................................................................................17, 19

Excel Corp. v. Porras

14 S.W.3d 307 (Tex. App.—Corpus Christi 

1999, pet. denied)................................................................................................30

Fulp v. Miller

286 S.W.3d 501 (Tex. App.—Corpus Christi 

2009, no pet.) ..........................................................................................16, 26, 27

Goforth v. Bradshaw

296 S.W.3d 849 (Tex. App.—Texarkana 

2009, no pet.) ......................................................................................................26

Gonzalez v. Villarreal

251 S.W.3d 763 (Tex. App.—Corpus Christi 

2008, pet. denied)................................................................................................29

Inscore v. Karnes County Sav. & Loan Ass’n

787 S.W.2d 183 (Tex. App.—Corpus Christi 

1990, no writ)......................................................................................................17
vi

Jernigan v. Langley

111 S.W.3d 153 (Tex. 2003) ..............................................................................20

In re M.S.

115 S.W.3d 534 (Tex. 2013) ..............................................................................31

Memorial Hermann Hosp. Sys. v. Hayden

No. 01-13-00154-CV, 2014 WL 2767128 

(Tex. App.—Houston [1st Dist.] Jun. 17, 2014, 

pet. denied) (mem. op.).......................................................................................22

Motor Vehicle Bd. v. El Paso Indep. 

Auto Dealers Ass’n, Inc.

1 S.W.3d 108 (Tex. 1999)...................................................................................20

Northeast Texas Staffing v. Ray

330 S.W.3d 1 (Tex. App.—Texarkana 

2010, no pet.) ......................................................................................................26

Northern County Mut. Ins. Co. v. Davalos

140 S.W.3d 685 (Tex. 2004) ..............................................................................23

Offenbach v. Stockton

285 S.W.3d 517 (Tex. App.—Dallas 

2009), aff’d, 336 S.W.3d 610 (Tex. 2011) .........................................................28

Rosemond v. Al-Lahiq

331 S.W.3d 764 (Tex. 2011) ..............................................................................16

In re Sheppard

197 S.W.3d 798 (Tex. App.—El Paso 

2006, orig. proceeding).......................................................................................22

Spiegel v. Strother

262 S.W.3d 481 (Tex. App.—Beaumont 

2008, no pet.) ......................................................................................................26

State Farm Mut. Auto Ins. Co. v. Traver

980 S.W.2d 625 (Tex. 1998) ..............................................................................23

In re TCW Global Project Fund II, Ltd.

274 S.W.3d 166 (Tex. App.—Houston 

[14th Dist.] 2008, orig. proceeding) ...................................................................19
vii

Tenneco, Inc. v. Enterprise Prods. Co.

925 S.W.2d 640 (Tex. 1996) ..............................................................................22

Tex. Dep’t of Transp. v. Able

35 S.W.3d 608 (Tex. 2000).................................................................................31

U.S. Lawns, Inc. v. Castillo

347 S.W.3d 844 (Tex. App.—Corpus Christi 

2011, pet. denied)..........................................................................................17, 19

Uduma v. Wagner

No. 01-12-00796-CV, 2014 WL 4259886 

(Tex. App.—Houston [1st Dist.] Aug. 27, 2014, 

pet. denied) (mem. op.).......................................................................................21

Ulico Cas. Co. v. Allied Pilots Ass’n

262 S.W.3d 773 (Tex. 2008) ..............................................................................20

Walker v. Gutierrez

111 S.W.3d 56 (Tex. 2003).................................................................................16

RULES

Tex. R. App. P.

Rule 33.1(a)...................................................................................................26, 29

Rule 38.1.............................................................................................................29

Rule 38.3.......................................................................................................18, 19

Rule 44.1(a).........................................................................................................31

Tex. R. Civ. P. 11.....................................................................................................25

Tex. R. Evid. 

Rule 801(e)(1)(B) ...............................................................................................31

Rule 801(e)(2)(D) ...............................................................................................30

Rule 803(1) .........................................................................................................31

Rule 901..............................................................................................................30
viii

STATEMENT OF THE CASE

Nature of the Case: Health-care liability case involving permanent injury 

to a brain-damaged child. CR 80-88.

Trial Court: 389th District Court, Hidalgo County (Lopez, J.)

Course of Proceedings: Plaintiffs originally sued individual physicians and 

later added McAllen Medical Center as a defendant 

(“MMC”). MMC’s insurer, JUA, engaged counsel 

to seek an agreement extending its answer deadline. 

Plaintiffs agreed. CR 30; 3 RR 33 (PX 2).

Plaintiffs then requested a reciprocal agreement that 

Chapter 74 reports could be served on the counsel 

who had negotiated the extension of the answer date. 

PX 7. JUA authorized counsel to accept service, 

PX 2, DX 11, and counsel on both sides entered into 

a Rule 11 agreement to that effect. CR 264.

Subsequent to these events, new counsel appeared 

and filed an answer on behalf of MMC. CR 208-10. 

New counsel initially raised an objection based on 

the timeliness of service of the Chapter 74 reports, 

CR 211-18, but withdrew that objection once he was 

apprised of the Rule 11 agreement.

For 18 months, the case proceeded with discovery. 

But on the eve of trial, MMC moved to dismiss on 

the ground that the Chapter 74 reports had not been 

served timely—denying the Rule 11 agreement 

between Plaintiffs and prior counsel. CR 249-54.

In an extraordinary hearing, prior counsel for MMC 

testified that he had been authorized to enter into the 

Rule 11 agreement and offered documentary proof. 

2 RR 43-44, 51-52, 57-58; PX 2.

Trial Court Disposition: The trial court denied MMC’s motion to dismiss. 

CR 402 (Tab A). But MMC took advantage of its 

interlocutory appeal and invoked the automatic stay 

of trial. CR 403-07.
ix

STATEMENT REGARDING ORAL ARGUMENT

Given the straightforward and dispositive waiver issues in this appeal,

coupled with the compelling record evidence supporting the trial court’s ruling, 

Plaintiffs-Appellees do not believe oral argument is necessary. But if the Court 

believes argument would be helpful, we welcome the opportunity to participate. 
x

ISSUES PRESENTED

1. Should the order be affirmed because MMC failed to challenge 

all independent grounds to support the trial court’s order? 

2. If not, did the trial court abuse its discretion by finding that 

MMC waived any objection to the timeliness of the Chapter 74 

expert reports?

3. If not, did the trial court abuse its discretion by finding that 

Plaintiffs served MMC’s attorney with the Chapter 74 reports 

within the 120-day deadline, pursuant to a Rule 11 agreement? 
INTRODUCTION

I am passionately proud of my profession. Therefore, “My word is my bond.”

***

I will always be conscious of my duty to the judicial system.

***

I will advise my client that we will not pursue tactics which are intended primarily for delay.

***

I will advise my client that we will not pursue any course of action which is without merit.

***

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, 

courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.

THE TEXAS LAWYER’S CREED: A MANDATE FOR PROFESSIONALISM 

(Nov. 7, 1989)

This is a tale of two lawyers. One regarded the obligations set forth in the 

Texas Lawyer’s Creed as articles of faith, and risked a great deal to uphold them. 

The other regarded those obligations as mere obstacles to be overcome.

The first lawyer was authorized to act on behalf of a defendant and entered 

into a Rule 11 agreement with opposing counsel. When that lawyer was replaced, 

the second lawyer tried to renounce the agreement, then honored it for 18 months, 

then reneged on it again just days before trial in order to secure an automatic stay. 

It is difficult to image a more craven abuse of the statute requiring expert reports in 

health-care liability cases. 

Our legal system simply cannot function, and our courts cannot do justice, 

unless the word of a lawyer can be trusted. This appeal tests that principle.
2

STATEMENT OF FACTS

In 2011, a 21-month-old boy was injured when struck by a motor vehicle. 

While he was in the care of doctors and nurses at McAllen Medical Center

(“MMC”), the child’s condition began to deteriorate. The nurses noted the 

downward progression of his condition, but no one provided medical intervention 

to halt the downward spiral. CR 80-85. 

Today, that little boy is permanently brain-damaged and completely blind. 

He depends entirely on his parents and others for all the basic necessities of life—

including feeding by tube, bathing, dressing, mobility, hygiene, and all bowel and 

bladder management. CR 85-87. 

MMC has no interest in those facts, nor does it have any interest in the facts 

surrounding the real history of this litigation. Its “Statement of Facts” is simply a 

barren procedural timeline, which aims to create the false impression that this case 

involves a run-of-the-mill failure to serve Chapter 74 expert reports on time.

Nothing could be further from the truth. This case involves a stunning effort 

to renege on a Rule 11 agreement on the eve of trial in order to deny the little boy 

and his family their day in court (not to mention the financial resources they need). 

This Statement of Facts will recount the course of the litigation, the agreements 

between Plaintiffs and MMC’s counsel, MMC’s effort to renege on its agreements, 

and the hearing on MMC’s motion to dismiss where the truth came to light.
3

Prior counsel accepts Chapter 74 reports on behalf of MMC

Plaintiffs filed suit in August 2012, alleging negligence claims against 

various health-care providers. Their original petition named several defendants, 

including RGV Pediatric Care, P.A. (RGV), but did not name MMC. CR 30-32. 

McAllen attorneys Steve Gonzalez and Edward Castillo of Gonzalez Castillo, LLP

answered for RGV; a year later, they moved for summary judgment. DX 11.

Around that same time, in August 2013, Plaintiffs filed an amended petition 

and added MMC as a defendant. CR 80-83.

Because Gonzalez had a long history of representing MMC, it was expected 

that he would appear for MMC if the pending claims against his other client, RGV, 

were dismissed on summary judgment. 2 RR 45-46, 51-52; 3 RR 10-12 (PX 2). 

To that end, MMC’s insurance carrier, Joint Underwriters Association (“JUA”), 

instructed Gonzalez Castillo to obtain a Rule 11 Agreement extending the answer 

deadline for MMC until after a ruling on the RGV summary judgment motion:

See 3 RR 33 (PX 2); see also id. at 34-35 (PX 2), 135-36 (DX 11). 
4

Consistent with these marching orders, Castillo wrote to Plaintiffs’ counsel 

Joe Alexander of the Mithoff Law Firm on September 3, 2013: 

The hospital has asked us to secure a Rule 11 agreement regarding the 

answer date for the hospital defendants. Attached please find a Rule 

11 reflecting the agreement.

3 RR 68 (PX 5); see also 2 RR 82. 

Plaintiffs agreed to extend the answer deadline and both parties executed the 

Rule 11 Agreement attached to Castillo’s e-mail. That agreement provided that the 

answer deadline would be extended until two weeks after the trial court ruled on 

RGV’s summary judgment motion: 

3 RR 70 (PX 6). 
5

A month later, Plaintiffs’ counsel e-mailed Castillo and Gonzalez to confirm 

that they had authority to accept service of the Chapter 74 expert reports on behalf 

of MMC. He wrote: 

Castillo replied promptly (communicating through his secretary, Annette Word)1

and promised to request such authority:

3 RR 72 (PX 7). 

As promised, Castillo immediately wrote to JUA to determine whether the 

insurance carrier wanted Gonzalez Castillo to accept the Chapter 74 expert reports

on behalf of MMC:

 

1

Several of the e-mails involved in this case were sent by Annette Word, Gonzalez and Castillo’s legal assistant, 

who routinely drafted and sent correspondence for Gonzalez and Castillo. See 2 RR 91-92. 
6

3 RR 39 (PX 2). The very next day, “MMC’s insurance carrier, JUA, instructed 

[Castillo] to advise Plaintiffs’ counsel that Gonzalez Castillo, LLP was authorized 

to accept service of Plaintiffs’ Chapter 74 expert reports as to MMC.” 3 RR 136 

(DX 11) (Tab B); see also 2 RR 108-09 (admitting affidavit testimony). 

Castillo acknowledged these instructions in an email on October 10, 2013, 

which was admitted during the evidentiary hearing: 

3 RR 40 (PX 2) (Tab C).
7

Castillo then told Plaintiffs’ counsel “we can accept service of Plaintiffs’ 

Chapter 74 reports as they pertain to the hospital entities.” 3 RR 43 (PX 2).

The next day, on October 11, 2013, Plaintiffs served Gonzalez Castillo with 

the Chapter 74 expert reports. Plaintiffs’ counsel and Gonzalez Castillo executed a 

Rule 11 Agreement confirming Gonzalez Castillo’s authority to accept the reports, 

as well as their actual receipt of the reports. The agreement stated: 

This will confirm that you [attorneys Gonzalez and Castillo] 

have been authorized by [MMC] to accept service of the above expert 

reports and curricula vitae from Plaintiffs . . . as required by Civil 

Practice and Remedies Code Section 74.351. 

This will also acknowledge and confirm that these reports and 

curricula vitae have been received by you on behalf of [MMC] and 

that such receipt by you constitutes proper service on such entities as 

required by Civil Practice and Remedies Code Section 74.351.

Please acknowledge that you have been authorized to accept 

service of these reports and curricula vitae on behalf of [MMC] by 

signing below and returning to the undersigned.

3 RR 74-75 (PX 8) (Tab D).

Current counsel enters an appearance for MMC, objects to the expert reports, 

then withdraws his objection under instructions from JUA

By December 2013, there was no ruling on the summary judgment motion. 

Mindful of the grave medical condition of their young client, Plaintiffs’ counsel 

advised Gonzalez Castillo that it would be necessary for MMC to file an answer. 

3 RR 80 (PX 10). Because Gonzalez Castillo could not appear on behalf of MMC, 

attorney Ron Hole was retained to represent MMC going forward. CR 208-10.
8

On January 2, 2014, Hole filed his answer on behalf of MMC. CR 208-10. 

Two weeks later, Plaintiffs’ counsel sent him courtesy copies of the expert reports, 

along with a copy of the “executed letter agreement wherein Mr. Edward Castillo 

agreed to accept service of these reports on behalf of [MMC] since they had not yet 

made an appearance.” 3 RR 108 (DX 4).

Surprisingly, Hole filed objections to the expert reports on February 5, 2014. 

His objections argued, inter alia, that the reports were not timely served because 

Hole did not receive them until January 2014. See CR 211-18. 

Perplexed by Hole’s belated objection in the face of the Rule 11 agreement, 

Plaintiffs’ counsel wrote Hole on February 6, 2014 in an effort to clarify the issue. 

3 RR 86-88 (PX 12). At the same time, JUA representatives “reviewed their file 

and sent Ron Hole the email confirming their authorization for [Gonzalez Castillo] 

to accept service of the Plaintiffs’ Chapter 74 reports back in October, 2013” and 

“asked him to withdraw his argument that the hospital was not timely served with 

the Chapter 74 expert reports.” 3 RR 45 (PX 2) (Tab E).

The lawyers spoke on February 7, 2014. Hole agreed that Gonzalez Castillo 

had been authorized to accept the expert reports on behalf of MMC and advised

Plaintiffs’ counsel that MMC “will not proceed” with objections to the timeliness 

of the reports. See 3 RR 6-7 (PX1) (Tab F); see also CR 330.

Memorializing this conversation, Hole sent Plaintiffs’ counsel a letter stating

that MMC would not proceed with its objections to the Chapter 74 expert reports:
9

3 RR 6 (PX 1) (Tab F).

2

Plaintiffs believed that was the end of the matter.

After 18 months of litigation and on the eve of trial, MMC reasserts its objections 

and provokes an extraordinary evidentiary hearing

With the February 2014 confusion behind them, the parties litigated this case 

without incident for the next 18 months. During this period, the parties conducted 

18 depositions—two of them with the experts who authored the Chapter 74 reports. 

CR 330 at ¶19.

But with trial set for August 17, 2015, MMC—through its counsel Hole—

filed another motion to dismiss on July 20, 2015. CR 249-54. The motion argued 

that the Chapter 74 reports had not been served timely—the very argument Hole 

had represented MMC “will not proceed” to assert in February 2014. See id.

 

2

Plaintiffs’ counsel responded by accepting Hole’s representation and indicating that it was unnecessary to execute 

a Rule 11 agreement regarding this unilateral withdrawal—Hole’s word was sufficient “as an officer of the Court.” 

3 RR 128-29 (DX 9). Plaintiffs’ counsel offered to file Hole’s letter if necessary, id., but received no reply.
10

Needless to say, this eleventh-hour development shocked Plaintiffs’ counsel, 

who had relied on the Rule 11 agreement and Hole’s withdrawal of his objections. 

At a hearing on the motion to dismiss on August 5, 2015, Plaintiffs set out to prove 

that both of those events had occurred and were binding on MMC.

MMC first called Christine Gaitan-Valdez, who testified that she is MMC’s

“primary interface or liaison with the hospital’s insurance claims representatives 

and with outside counsel.” 3 RR 120-22 (DX 6). Gaitan-Valdez explained that—

to her knowledge—the only outside attorneys hired to represent MMC in this case 

were Ron Hole and one other attorney (Russell Schell). 2 RR 10-11, 14. 

On the other hand, Gaitan-Valdez had never asked JUA whether any other 

attorney had been authorized to accept the Chapter 74 reports on behalf of MMC. 

2 RR 20-21. And in response to questions from the court, Gaitan-Valdez clarified 

that her role as “primary interface or liaison” did not include selection of counsel:

COURT: This interface that you put in this affidavit, interface 

liaison—what does that mean? You’re the one that makes 

the decisions for the hospital ... Are you the one who 

makes the decision for the hospital as to who the 

attorneys will be who represent the hospital?

. . . 

A: Not the final decision. 

2 RR 30-31. Gaitan-Valdez repeatedly admitted that she does not make decisions 

about counsel for MMC. 2 RR 31. JUA makes those decisions. 2 RR 48-49

(testimony of Steve Gonzalez). 
11

This discussion set the stage for a conversation—or perhaps confrontation—

between MMC’s current counsel (Hole) and its former counsel (Gonzalez). 

Gonzalez testified unequivocally that his firm had been instructed to accept service 

of the Chapter 74 reports on behalf of MMC by the insurer, JUA:

Q: (By Mr. Hole) On the date [the October 11, 2013 letter] 

was signed by Mr. Castillo, who was Gonzalez and 

Castillo representing in connection with this lawsuit? 

A: We were representing [RGV] and [MMC] for the 

purposes of obtaining a Rule 11 agreement on behalf of 

[MMC] to extend the answer date that they would be 

required to file an answer in this case; and for the 

purposes of receiving service of the plaintiffs Chapter 74

reports. For those two purposes, we were representing 

the hospital entities. We were also representing [RGV], 

which I referenced earlier. 

Q: You do understand that [RGV] is adverse to [MMC]?

A: I understand that after you became the attorney in this 

case and started all of your misrepresentation and 

representation that there—an adversity grew from that, 

but did not exist back at the time when all parties wanted 

me to represent the hospital, should the summary 

judgment be granted on behalf of the group.

2 RR 43-44 (Tab G).

With respect to the critical issue in this appeal—whether Gonzalez Castillo 

had been authorized by JUA to accept the Chapter 74 reports on behalf of MMC—

Gonzalez consistently testified that “we were asked to represent the hospital for the

purposes of obtaining a Rule 11 agreement and also for the purposes of receiving 

and accepting service of the plaintiff’s Chapter 74 reports.” 2 RR 52 (Tab G).
12

Q: (By Mr. Hole) Okay. Are you familiar that a Rule 11 

agreement must be between the party or the party’s 

attorney and that you were not the party’s attorney at the 

time, correct? 

A: . . . Our firm was asked and instructed to obtain a Rule 11 

agreement from Plaintiff’s counsel in this lawsuit to 

extend the deadline for filing an answer on behalf of the 

hospital entities. And we were asked, as attorneys for the 

hospital entities, to accept service of Chapter 74 reports 

on behalf of the hospital entities. So if you’re telling me, 

was I acting as an attorney on behalf of the hospitals and 

was I authorized to do so? My answer is yes. 

2 RR 57-58 (emphasis added) (Tab G). 

MMC’s counsel revisited this point so many times, with the same responses, 

that it became tiresome to the trial court: “Move on. He’s answered the same way 

multiple times. For the purposes of getting the Rule 11 agreement and for the 

purposes of the Chapter 74 reports. He’s said that multiple times already. And 

you’ve asked that question multiple times now.” 2 RR 76-77 (Tab G). 

Gonzalez further explained that Gaitan-Valdez, who was a “good friend,” 

would not have been “in the loop on decisions like whether to extend an answer 

date or whether to authorize our law firm to accept Chapter 74 reports.” 2 RR 47. 

To suggest otherwise, he said, “is to completely mischaracterize her role in the 

management of a lawsuit or the defense of a lawsuit for the hospitals.” Id. 

This extraordinary testimony was not vindictive, but a conscientious effort to 

live up to the ideals of our profession. Gonzalez explained his voluntary decision 

to appear and offer this testimony in terms that should make any lawyer proud:
13

Q: (By Mr. Mithoff) Mr. Gonzalez, you were asked earlier 

at the beginning of your examination about a subpoena 

that I forwarded to you to appear here today. You 

accepted the subpoena. You didn’t move to quash the 

subpoena. You were with your family in California. Why 

did you come? . . . 

A: I consider myself an officer of the Court. If Mr. Hole had 

asked me to come back, I would have come back without 

a subpoena. He never called me, never tried to make any 

contact with me at all at any time on any of these, even 

back when it was happening when he filed this motion. 

You called and said, Steve, all we want is to ask you is 

for the true rendition of the true facts of what happened. 

I have been authorized by the JUA so many times I can’t 

tell you, to make agreements with attorneys whether I 

have filed an answer, made an appearance or not, to 

extend answer deadlines [and] on occasion to accept 

service of Chapter 74 reports for these very same 

hospitals, [MMC] included. 

COURT: Just refresh my memory. How long have you been doing 

[medical malpractice defense work]?

A: Well, 30 years plus 32 years was when I first handled my 

first malpractice case in Houston and been practicing 

down here for about 20 years. 

COURT: And how long have you actually been working on cases 

for this particular company and its entities?

A: I would say close to 20 years, tried many cases for them 

in this courthouse and obviously, I’m in a very difficult 

position here, Your Honor because they’re a dear client 

of mine. And like I told you, Christy Valdez is a dear 

friend of mine. I mean, we—personally and we also work 

together. I have a lot of communication with her, but not 

about extensions of time for answers and not about 

acceptance of Chapter 74 reports. That’s not what she 

and I do. That just happens to not be her job. She has 

other very important work . . . 
14

What the hospital and its counsel are trying to say here is 

not fair. It doesn’t represent the truth of how this works. 

In a case of this magnitude, as I said at the beginning, if 

Mr. Hole had wanted me to come back and tell the truth 

about how these agreements get made between attorneys, 

who gives the instructions, who gives the authority for 

me to act as an attorney or as an agent to accept service 

of Chapter 74 reports, I would be—I would have come 

back without a subpoena, just like I have for Plaintiffs’ 

counsel. 

So that’s why I did not choose to avoid this, even though 

it was a major imposition on my family and my time with 

them.

2 RR 96-100. 

The trial court denies the motion to dismiss

The motion to dismiss was denied. CR 402. But the damage was done. 

MMC appealed and invoked its right to an automatic stay of the trial. CR 403-07; 

see also 2 RR 124-25.
15

SUMMARY OF THE ARGUMENT

This Court should uphold the denial of MMC’s motion to dismiss for three 

independent reasons. 

First, MMC has not challenged all the grounds for the trial court’s ruling. 

Plaintiffs raised a waiver argument in the trial court that MMC has not addressed, 

which provides a quick and easy way to affirm the decision below. 

Second, that waiver argument was correct on the merits and the trial court 

properly exercised its discretion by sustaining it. Eighteen months before trial, 

MMC’s current counsel raised an objection to the service of expert reports but then 

agreed to withdraw the objection—reviving it on the eve of trial to secure delay. 

The trial court correctly found that MMC waived any Chapter 74 complaint.

Third, the trial court correctly concluded that Plaintiffs timely served their 

expert reports on MMC by serving the attorneys who were authorized to receive 

them on behalf of MMC. It is no surprise that MMC’s current counsel agreed to 

withdraw his objections to the Chapter 74 reports shortly after they were asserted; 

the objections were utterly without merit. MMC’s insurer, which had the right to 

select counsel and control the defense, authorized former counsel to accept service 

of the expert reports on behalf of MMC. Failure to honor that Rule 11 agreement 

would make a mockery of Section 74.351 and the laudable goals of “tort reform.”

The order should be affirmed as quickly as possible, so trial can proceed.
16

STANDARD OF REVIEW: ABUSE OF DISCRETION

A trial court’s denial of a motion to dismiss a health-care liability claim 

under Section 74.351 of the Civil Practice and Remedies Code is reviewed for an 

abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 

(Tex. 2001). 

A trial court abuses its discretion if acts arbitrarily or unreasonably or 

without any reference to guiding rules or principles. See, e.g., Walker v. Gutierrez, 

111 S.W.3d 56, 62 (Tex. 2003); Fulp v. Miller, 286 S.W.3d 501, 505 (Tex. App.—

Corpus Christi 2009, no pet.). 

When, as here, a trial court fails to issue specific findings of fact in support 

of its ruling on a motion to dismiss, the Court implies all necessary findings of fact 

that are supported by the evidence. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 

(Tex. 2011). This Court may uphold the trial court’s ruling on a motion to dismiss 

on any theory supported by the record. Id.
17

ARGUMENT AND AUTHORITIES

The trial court’s ruling can be affirmed on any of three independent grounds. 

Plaintiffs recommend that the Court affirm on waiver grounds simply because it 

can do so expeditiously, allowing the case to proceed to trial as soon as possible.

I. MMC waived its appeal by failing to challenge all grounds that support 

the trial court’s ruling.

The trial court did not specify its grounds for denying the motion to dismiss. 

CR 402. Because MMC has not challenged an independent basis for the ruling—

waiver—the Court can affirm the ruling below without even reaching the merits. 

Plaintiffs therefore address this ground first. 

When a trial court issues a ruling without specifying its grounds for decision,

“[a]n appellant must challenge each independent ground that may support an 

adverse ruling.” U.S. Lawns, Inc. v. Castillo, 347 S.W.3d 844, 846 (Tex. App.—

Corpus Christi 2011, pet. denied); Inscore v. Karnes County Sav. & Loan Ass’n,

787 S.W.2d 183, 184 (Tex. App.—Corpus Christi 1990, no writ) (same). 

Otherwise, this Court “must affirm the judgment on the unchallenged ground.” 

U.S. Lawns, 347 S.W.3d at 847. This rule is well-settled and uniformly applied. 

See, e.g., In re Elamex, S.A. de C.V., 367 S.W.3d 879, 888 (Tex. App.—El Paso 

2012, no pet.); Britton v. Texas Dep’t of Criminal Justice, 95 S.W.3d 676, 681-82 

(Tex. App.—Houston [1st Dist.] 2002, no pet.). It controls this case.
18

A. On appeal, MMC argues only that it was not timely served with 

expert reports.

MMC challenges the trial court’s ruling only on the basis that Plaintiffs did 

not comply with the service requirements for expert reports under Section 74.351. 

See MMC Br. at 6. It sets forth the service requirements for expert reports under 

Section 74.351, see id. at 8-9, then argues that various acts by Plaintiffs did not 

satisfy those requirements. Id. at 10-25. MMC is mistaken on the merits, but it is 

unnecessary even to reach the merits of its arguments.

B. Plaintiffs asserted another ground to deny the motion to dismiss, 

which MMC fails to challenge on appeal.

In addition to addressing the merits of MMC’s motion to dismiss below, 

Plaintiffs also asserted—in Part I of their supplemental response—that MMC had 

waived its right to challenge the timeliness of their service of the expert reports. 

Plaintiffs explained that MMC intentionally relinquished its right to object to the 

timeliness of the reports when, among other things, its current counsel withdrew 

his objections in February 2014. See CR 312-14. In addition, Plaintiffs argued 

that MMC’s waiver was evidenced by its intentional decision to remain silent on 

the Chapter 74 issue for over 18 months as discovery proceeded. CR 313. 

MMC’s appellate brief does not challenge this alternative basis for decision. 

Having failed to do so in its opening brief, MMC cannot raise the issue in a reply. 

See Tex. R. App. P. 38.3. This Court has specifically addressed this issue:
19

It is well-settled that Rule 38.3 of the Texas Rules of Appellate 

Procedure does not allow an appellant to include in a reply brief a new 

issue in response to a matter pointed out in appellee’s brief but not 

raised by the appellant’s original brief.

U.S. Lawns, 347 S.W.3d at 849 (quoting In re TCW Global Project Fund II, Ltd., 

274 S.W.3d 166, 171 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding)). 

Thus, MMC has failed to challenge an alternative basis for the trial court’s ruling 

and that omission is now incurable.

C. The Court should affirm the trial court’s ruling based on the 

unchallenged ground.

Because MMC did not challenge Plaintiffs’ independent waiver argument, 

“any error in the grounds challenged on appeal is harmless because the 

unchallenged independent ground fully supports the adverse ruling.” In re Elamex, 

367 S.W.3d at 888. This Court is unflinching: “If the appellant fails to challenge 

all possible grounds, we must affirm the judgment on the unchallenged ground.” 

U.S. Lawns, 347 S.W.3d at 847. That rule makes quick work of this appeal.

II. The trial court correctly found that MMC waived any objection to the 

timeliness of service. 

If the Court reaches the merits, it should hold that the trial court correctly 

concluded MMC waived its right to object to the timeliness of the expert reports 

when its current counsel (1) knowingly abandoned that objection in February 2014 

and (2) proceeded with discovery for 18 months—until the eve of trial.
20

A. Chapter 74 rights can be waived.

The traditional rules of waiver apply to expert report challenges under 

Section 74.351. See Jernigan v. Langley, 111 S.W.3d 153, 156-58 (Tex. 2003). 

The issue in Jernigan was whether failure to file a prompt objection is a waiver. 

That issue has been mooted by the addition of a 21-day deadline for objections in 

the current version of the statute, but Jernigan confirmed the general principle that 

a party can waive its Chapter 74 rights. Id. at 156.

Waiver is intentional relinquishment of a known right or intentional conduct 

inconsistent with claiming such a right. See Ulico Cas. Co. v. Allied Pilots Ass’n, 

262 S.W.3d 773, 778 (Tex. 2008). Its elements are “(1) an existing right, benefit, 

or advantage held by a party; (2) the party’s actual knowledge of its existence; and 

(3) the party’s actual intent to relinquish the right, or intentional conduct 

inconsistent with the right.” Id. 

To the extent waiver is a question of intent, a court must consider the words, 

acts, and conduct of the parties. See Motor Vehicle Bd. v. El Paso Indep. Auto 

Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999). Under these circumstances, 

the question of waiver is a question of fact. See id.

B. MMC’s affirmative representations and subsequent silence each 

support a finding of waiver.

The trial court properly determined that MMC waived any objection to the 

timeliness of the expert reports. Its factual finding of waiver is amply supported.
21

The first two elements of waiver—an existing right and actual knowledge—

are unquestionably satisfied. All parties agree that MMC had a right to timely 

expert reports under Section 74.351. And MMC’s initial assertion of that right, 

prior to withdrawing its objections, proves its actual knowledge. See CR 211-18. 

The only factual dispute concerned the third element, which Plaintiffs established. 

First, MMC made an intentional decision to relinquish its Chapter 74 rights 

through the affirmative representations of its current counsel. In February 2014, 

MMC’s counsel withdrew his Section 74.351 objections, 3 RR 6-7 (PX1) (Tab F), 

and he did so at the instruction of MMC’s insurer, JUA. 3 RR 45 (PX 2) (Tab E). 

After more than a year of litigation, MMC tried to ambush Plaintiffs by reasserting 

an objection to the timeliness of the expert reports on the eve of trial. CR 249-54; 

see also pp. 8-9, supra. This scenario represents a classic case of waiver.

Texas courts have found waiver of Chapter 74 under nearly identical facts. 

In Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL 4259886 (Tex. App.—

Houston [1st Dist.] Aug. 27, 2014, pet. denied) (mem. op.), defense counsel 

promised the trial court and the plaintiff that a particular defendant would not seek 

to assert Chapter 74. On the eve of trial, the defendant reneged and tried to assert 

the statutory right. Id. at *2-3. The trial court refused to allow the defendant to 

change position and assert Chapter 74 and the court of appeals affirmed. Id. at *4. 

In this case, MMC tried the very same strategy disapproved by Uduma. This Court 

can affirm on the basis of Uduma without further consideration of the merits.
22

Second, following the representations of its counsel, MMC remained silent 

for more than 18 months—during which time Plaintiffs relied on its representations 

and proceeded with the litigation. This conduct was wholly inconsistent with any 

claim that MMC intended to assert objections regarding the timeliness of the 

expert reports. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 

(Tex. 1996) (silence or inaction may establish waiver if it is for so long a period 

that it shows an intention to yield a known right). The trial court was entitled to 

make such a finding in this case.

In sum, the representations and extended silence of MMC support a finding 

that MMC waived its Chapter 74 rights. See, e.g., Memorial Hermann Hosp. Sys. 

v. Hayden, No. 01-13-00154-CV, 2014 WL 2767128, at *9-10 (Tex. App.—

Houston [1st Dist.] Jun. 17, 2014, pet. denied) (mem. op.) (holding that defendant 

who completed discovery and sought dismissal “four days prior to the trial court 

actually calling the case to trial” had waived its right to seek dismissal pursuant to 

Chapter 74); In re Sheppard, 197 S.W.3d 798, 801-02 (Tex. App.—El Paso 2006, 

orig. proceeding) (holding participation in discovery plus delay waived any right to 

seek dismissal based on expert report requirements). 

The trial court did not abuse its discretion by finding that MMC had waived 

its Section 74.351 rights. The ruling can be affirmed on this independent basis—

and doing so in a published opinion would send a strong message to the Texas bar 

that gamesmanship like the conduct in this case will not be tolerated.
23

III. Plaintiffs satisfied Section 74.351 by serving the expert reports on 

counsel authorized to accept them on behalf of MMC.

Finally, the trial court correctly found that Plaintiffs satisfied Section 74.351 

by serving expert reports on counsel authorized to accept them on behalf of MMC. 

Thanks to the integrity of MMC’s former counsel, who appeared voluntarily at the 

hearing and told the whole truth, there is no room to question this finding.

Plaintiffs served the expert reports on Steve Gonzalez and Edward Castillo, 

who were acting as attorneys for MMC pursuant to an explicit grant of authority. 

Gonzalez and Castillo were served on October 11, 2013—well within the deadline 

of December 5, 2013. Thus, the trial court properly denied the motion to dismiss. 

A. Gonzalez and Castillo were granted express authority to act as 

counsel for MMC for purposes of accepting the expert reports.

1. The insurer, JUA, had the right to choose counsel and 

control the defense on behalf of MMC.

MMC’s insurance policy gave its insurer, JUA, “the right and duty to defend 

any suit against the insured.” 3 RR 53 (PX 4). This authorization is dispositive, 

because “[t]he right to conduct the defense includes the authority to select the 

attorney who will defend the claim and to make other decisions that would 

normally be vested in the insured . . . .” Northern County Mut. Ins. Co. v. Davalos, 

140 S.W.3d 685, 688 (Tex. 2004); accord State Farm Mut. Auto Ins. Co. v. Traver, 

980 S.W.2d 625, 627 (Tex. 1998) (same). Such policy language grants the insurer

“‘complete and exclusive control’” of the defense, State Farm, 980 S.W.2d at 627 

(citation omitted), so JUA’s decisions in defending the suit are binding on MMC.
24

2. JUA engaged Castillo and Gonzalez on behalf of MMC and 

authorized them to accept service of Chapter 74 reports.

The trial court had good reason to find that JUA expressly authorized 

Gonzalez and Castillo to accept Plaintiffs’ Chapter 74 reports on behalf of MMC. 

The trial court heard live testimony and received documentary evidence to support

its factual finding that Gonzalez and Castillo were acting as attorneys for MMC 

with respect to the Chapter 74 reports, and that they had been expressly authorized 

by JUA to accept service of those reports on behalf of MMC. 

Gonzalez unequivocally testified that he was “acting as an attorney on behalf 

of the hospitals and was . . . authorized to do so.” 2 RR 58. He “definitely had an 

attorney/client relationship with McAllen Medical Center . . . for purposes of 

accepting the Chapter 74 expert reports.” Id. at 77; see also id. at 44, 52 (same); 

pp. 11-14, supra.

This testimony was corroborated by the e-mails between Castillo and JUA, 

which verified that JUA had authorized Gonzalez Castillo to accept expert reports 

on behalf of MMC. See 3 RR 40 (PX 2) (Tab C); id. at 135-36 (DX 11) (Tab B); 

see also pp. 6-7, supra. Indeed, when the Chapter 74 objections originally arose, 

the JUA decisionmakers “sent Ron Hole the email confirming their authorization 

for [Gonzalez Castillo] to accept service of the Plaintiffs’ Chapter 74 expert reports 

back in October, 2013.” 3 RR 45 (PX 2) (Tab E). The evidence is overwhelming.
25

Defying this evidence, MMC persists in claiming there is no evidence that 

“either Mr. Gonzalez or Mr. Castillo was ever retained by the insurance company 

to represent the MMC Defendants in connection with the underlying medical 

negligence case.” MMC Br. at 16. The standard of review forecloses that claim. 

The trial court did not abuse its discretion by determining that JUA had authorized 

Gonzalez and Castillo to act as counsel for MMC for purposes of accepting service 

of the Chapter 74 reports.

3. An enforceable Rule 11 agreement allowed Plaintiffs to 

serve the reports on Gonzalez and Castillo.

As authorized by JUA, Gonzalez and Castillo executed a Rule 11 agreement 

regarding the Chapter 74 expert reports. 3 RR 74-75 (PX 8) (Tab D). It stated that 

Gonzalez and Castillo had been “authorized by [MMC] to accept service” of the 

Chapter 74 expert reports, and it acknowledged that the reports had been received 

by the attorneys “on behalf of [MMC] and that such receipt . . . constitutes proper 

service on such entities as required by [Chapter 74].” Id.

That written agreement between counsel was filed with the trial court as part 

of the proceedings on the motion to dismiss. CR 335-36; see also 2 RR 95. Thus, 

it is binding on the parties to this litigation. See Tex. R. Civ. P. 11. 

B. MMC’s last-ditch arguments are unavailing.

MMC makes a variety of final arguments concerning the validity of service 

of the expert reports on Gonzalez and Castillo. None is meritorious.
26

1. The manner of service is immaterial in this case.

Based on Fulp v. Miller, 286 S.W.3d 501 (Tex. App.—Corpus Christi 2009, 

no pet.), MMC contends that service on Gonzalez and Castillo was insufficient 

because the expert reports were served by regular mail, rather than certified mail.3 

But because MMC did not raise this argument in its motion to dismiss, CR 249-54, 

or secure a ruling at trial, it has been waived. See Tex. R. App. P. 33.1(a).

In any event, Gonzalez and Castillo actually received the reports within the 

120-day deadline—and acknowledged it. See 3 RR 74-75 (PX 8). In this situation, 

the purpose of Rule 21a has been satisfied and no further compliance is required. 

Spiegel v. Strother, 262 S.W.3d 481, 483-85 (Tex. App.—Beaumont 2008, no pet.) 

(distinguishing numerous cases cited by MMC); Northeast Texas Staffing v. Ray, 

330 S.W.3d 1, 4-5 (Tex. App.—Texarkana 2010, no pet.); Goforth v. Bradshaw, 

296 S.W.3d 849, 854 (Tex. App.—Texarkana 2009, no pet.). This complaint is

both unpreserved and insubstantial, and it contradicts the Rule 11 agreement.

2. There was no “attorney in charge” to be served and the 

parties agreed to an alternative form of service. 

Based again on Fulp, MMC also argues that service on a “party’s attorney” 

under Section 74.351 requires service on an “attorney in charge” under Rule 8. 

MMC Br. at 22-23. Again, MMC did not raise this issue in its motion to dismiss, 

CR 249-54, or secure a ruling at trial, so it is waived. See Tex. R. App. P. 33.1(a).

 

3 Rule 21a was amended, effective less than three months after Plaintiffs served their reports on Gonzalez Castillo, 

to allow for service by regular mail. See Misc. Docket No. 13-9165 (Tex. Dec. 15, 2013). 
27

Furthermore, MMC’s reading of Fulp is flawed. As a threshold matter, 

nothing in Rule 8 forbids altering the rules of service through a Rule 11 agreement. 

Here, the parties had a valid Rule 11 agreement that authorized Plaintiffs to serve 

their expert reports on Gonzalez and Castillo. Thus, irrespective of Rule 8 or Fulp, 

Plaintiffs satisfied Chapter 74. Fulp did not eviscerate Rule 11 agreements. 

In any event, this Court should not be mislead about its decision in Fulp.

There, the Court held that when an answer has been filed on behalf of a defendant, 

id. at 504-05, a health-care liability claimant cannot satisfy Chapter 74 by serving 

reports on an attorney other than the attorney who filed the answer. Id. at 512.

That holding is unexceptional, but it has no application to the present case. 

In this case, MMC had not filed an answer—ironically, because Gonzalez Castillo 

had negotiated an extension of the answer deadline for MMC. See pp. 3-4, supra. 

Thus, not only was there no “attorney of record” for MMC at the time the reports 

were served, but the same attorneys who secured a Rule 11 agreement extending 

the answer deadline likewise executed an agreement to accept the expert reports. 

Under these facts, Fulp does not apply. This Court was careful to emphasize that, 

in Fulp, “[t]he record does not reflect that [the attorney in the separate case] or any 

other attorney represented the Hospital in this case.” Id. at 511 n.6. By contrast, 

the record shows that Gonzalez and Castillo “represented the Hospital in this case,” 

id., and the trial court was entitled to make that finding. 
28

3. MMC’s other arguments are irrelevant.

MMC’s last two arguments are facially irrelevant. First, MMC observes that 

the mere act of filing expert reports does not constitute service on the defendant. 

MMC Br. at 10-11. Second, MMC asserts that serving an expert report on a 

defendant’s insurer does not constitute service on the defendant. Id. at 23-24. 

Both propositions are correct, see Offenbach v. Stockton, 285 S.W.3d 517, 522-23

(Tex. App.—Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011), but irrelevant. 

Plaintiffs do not argue that Chapter 74 was satisfied when their reports were filed 

with the trial court or served on MMC’s insurer. The statute was satisfied when 

the reports were served on the attorneys authorized to accept them and identified in 

a valid and binding Rule 11 agreement. The trial court did not err.

C. MMC’s evidentiary objections are unpreserved and insubstantial.

As part of its argument challenging Gonzalez and Castillo’s ability to accept 

the Chapter 74 reports, MMC briefly mentions an objection to Plaintiffs’ Exhibit 2: 

Also, nothing in any of the documents admitted into evidence at the 

hearing, including the documents from the insurance company (which 

were clearly hearsay, not properly authenticated and objected to on 

those bases—[citation]), indicate that either Mr. Gonzalez or Mr. 

Castillo was ever retained by the insurance company to represent the 

MMC Defendants in connection with the underlying medical 

negligence case.

MMC Br. at 16 (emphasis added). This parenthetical reference is insufficient to 

present any ground for relief on appeal and erroneous in any event. To be safe, 

Plaintiffs address it here for the convenience of the Court. 
29

1. Any evidentiary complaint has been waived by inadequate 

preservation and inadequate briefing.

To the extent that MMC seeks to challenge the admission of “the documents 

from the insurance company” on appeal, it did not preserve such an issue below. 

MMC objected below “only as to the hearsay within hearsay and authenticity as to 

some of the documents” in Plaintiffs’ Exhibit 2, which contained numerous e-mails 

among JUA, Gonzalez and Castillo, and Plaintiffs’ counsel. 2 RR 85. However, 

MMC did not identify any particular documents as the subject of its objection, 

which is insufficient to preserve any complaint. See Tex. R. App. P. 33.1(a); 

Columbia Rio Grande Regional Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex. App.—

Corpus Christi 2000, no pet.) (holding that blanket objections to entire exhibits on 

the basis of hearsay, without identifying specific statements, preserve nothing for 

appellate review). A litigant who “directs its objections to the exhibits as a whole 

and does not point out which parts are objectionable hearsay” waives error. Id.

Likewise, MMC’s allusion to “the documents from the insurance company” 

in its appellate brief does not adequately present an issue for this Court to review. 

See Tex. R. App. P. 38.1. Without any specific reference to a particular document

or any citation to legal authority, it is impossible to answer or analyze this issue. 

Such a “bald assertion of objections made to the trial court without any citations to 

the record or legal authority” is thus “inadequately briefed.” Gonzalez v. 

Villarreal, 251 S.W.3d 763, 774 (Tex. App.—Corpus Christi 2008, pet. denied).
30

2. The authenticity objection was invalid.

To the extent that the Court entertains any argument about the authenticity 

of the documents within Plaintiffs’ Exhibit 2, that objection was meritless and the 

trial court properly overruled it. After MMC asserted its authenticity objection, 

Gonzalez immediately confirmed that he had personal knowledge of the e-mails 

and that they had not been altered. 2 RR 85-86. This testimony supported a 

finding that the documents were authentic copies of e-mails from Gonzalez’s file. 

See Tex. R. Evid. 901. The trial court did not abuse its discretion by overruling the 

authenticity objection.

3. The hearsay objection was invalid.

Likewise, to the extent that the Court entertains any argument about hearsay, 

that objection was meritless and the trial court properly overruled it. 

Obviously, any “documents from the insurance company” are not hearsay. 

Documents offered against MMC and made by its agent (JUA) on a matter within 

the scope of JUA’s duty to conduct the legal defense constitute party admissions. 

Thus, they are “not hearsay.” Tex. R. Evid. 801(e)(2)(D); Excel Corp. v. Porras, 

14 S.W.3d 307, 314 n.1 (Tex. App.—Corpus Christi 1999, pet. denied). 

To the extent that MMC actually meant to challenge the e-mails by Castillo 

(which are not “documents from the insurance company”), its objection was futile. 

Those emails were admissible for at least two reasons.
31

First, MMC counsel Hole alleged that Gonzalez and Castillo had fabricated 

their testimony and acted with improper motives by claiming they were authorized 

to act on behalf of MMC while simultaneously representing RGV in the litigation. 

See 2 RR 43-44, 102-103. Castillo’s e-mails were consistent with his testimony, 

DX 11 (Tab B), so they were “not hearsay.” Tex. R. Evid. 801(e)(1)(B). 

Second, even if the e-mails were hearsay, they were admissible under the

exception for present-sense impressions. The emails were sent after Castillo spoke 

with JUA “just now,” 3 RR 40 (PX 2) (Tab C), and “just received a call,” 3 RR 45 

(PX 2) (Tab E), and they memorialized his impressions about those discussions. 

Such impressions “are not excluded by the hearsay rule.” Tex. R. Evid. 803(1); 

Daniels v. Yancey, 175 S.W.3d 889, 895-96 (Tex. App.—Texarkana 2005, no pet.).

For either reason, the trial court did not abuse its discretion by overruling the 

hearsay objections.

4. MMC has not demonstrated that any error was harmful.

Finally, MMC bears the burden to prove that it has been prejudiced by the 

trial court’s evidentiary rulings. See In re M.S., 115 S.W.3d 534, 538 (Tex. 2013). 

Without identifying specific documents for challenge, MMC cannot hope to show 

that the decision “turns on” inadmissible evidence. Tex. Dep’t of Transp. v. Able, 

35 S.W.3d 608, 617 (Tex. 2000). Furthermore, any document subject to challenge 

was cumulative of other evidence (including testimony by Gonzalez and Castillo), 

so at most, any error would be harmless. See Tex. R. App. P. 44.1(a).
32

The vague nature of MMC’s complaint underscores the absence of harm. 

MMC challenges only “documents from the insurance company,” MMC Br. at 16, 

but Plaintiffs’ brief does not rely on any “documents from the insurance company.” 

E-mails from the lawyers to JUA confirming that Gonzalez Castillo was authorized 

to accept the Chapter 74 reports are not “documents from the insurance company.” 

See pp. 6, 8, supra. Therefore, MMC has utterly failed to establish harmful error; 

to the extent that the decision below can be upheld without any reference to the 

“documents from the insurance company,” any error was plainly harmless.

CONCLUSION AND PRAYER FOR RELIEF

The trial court’s order denying the motion to dismiss should be affirmed. 

Plaintiffs request all other relief to which they are entitled.

 Respectfully submitted,

MITHOFF LAW

Richard Warren Mithoff

State Bar No. 14228500

rmithoff@mithofflaw.com

Joseph R. Alexander, Jr.

State Bar No. 00995150

jalexander@mithofflaw.com

Warner Hocker

State Bar No. 24074422

whocker@mithofflaw.com

500 Dallas, Suite 3450

Houston, TX 77002

(713) 654-1122

(713) 739-8085 (Fax)

BECK REDDEN LLP

By: /s/ Russell S. Post

Russell S. Post

State Bar No. 00797258

rpost@beckredden.com

Patrice B. Childress

State Bar No. 24059569

pchildress@beckredden.com

Kyle Lawrence

State Bar No. 24087895

klawrence@beckredden.com

1221 McKinney Street, Suite 4500

Houston, TX 77010

(713) 951-3700

(713) 951-3720 (Fax)
33

COWAN & GARZA

Viola G. Garza

State Bar No. 00787518

506 East Dove Street

McAllen, TX 78504

(956) 994-9170

(956) 618-2324 (Fax)

SMITH & HASSLER

Brent Cordell

State Bar No. 24005953

1445 North Loop West, Suite 700

Houston, TX 77008

(713) 739-1250

(713) 864-7226 (Fax)

ATTORNEYS FOR APPELLEES MARIO I. RODRIGUEZ AND LUDIVINA IRACHETA,

INDIVIDUALLY AND AS NEXT FRIENDS OF XXXXX, A MINOR
34

CERTIFICATE OF SERVICE

I hereby certify that on December 22, 2015, a true and correct copy of the 

above and foregoing Brief of Appellees was forwarded to all counsel of record, by 

the Electronic Filing Service Provider if registered, otherwise by email, as follows:

Ronald G. Hole

HOLE & ALVAREZ, L.L.P.

P. O. Box 720547

McAllen, TX 78504

mail@holealvarez.com

Russell W. Schell

SCHELL COOLEY LLP

15455 Dallas Parkway, Suite 550

Addison, TX 75001

rschell@schellcooley.com

Counsel for Defendants McAllen

Hospitals, L.P., McAllen Hospitals, 

L.P. d/b/a McAllen Medical Center, 

McAllen Medical Center, McAllen 

Hospitals, L.P. d/b/a South Texas 

Health System and South Texas Health 

System

Eloy Sepulveda

ATTORNEY AT LAW

716 South Texas Blvd.

Weslaco, TX 78596

sepulveda.law@gmail.com

Guardian Ad Litem

Douglas M. Kennedy

BRIN & BRIN, P.C.

623 I-H 10 West

San Antonio, TX 78201

dkennedy@brinandbrin.com

Attorneys for Defendants Hugo F.

Carvajal, M.D., Texas Inpatient 

Pediatrics, P.A., Texas Pedicare, P.A., 

South Texas Urgent Care, P.L.L.C.

d/b/a North Central Urgent Care and 

Comprehensive Urgent Care, P.A.

W. Richard Wagner

WAGNER CARIO, LLP

7705 Broadway

San Antonio, TX 78209

rwagner@wagnercario.com

Attorneys for Defendants RGV

Pediatric Critical Care, P.A.

/s/ Russell S. Post

Russell S. Post
35

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of 

Tex. R. App. P. 9.4 because it contains 7,455 words, excluding the parts of the 

brief exempted by Tex. R. App. P. 9.4(i)(2)(B).

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 2007 in 14 point Times New Roman font.

Dated: December 22, 2015.

/s/ Russell S. Post

Russell S. Post

Counsel for Appellees

Mario Rodriguez and Ludivina Iracheta, 

Individually and as Next Friends of 

Xxxxx Xxxxxxxxx, A Minor,
36

NO. 13-15-00362-CV

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI-EDINBURG, TEXAS

MCALLEN HOSPITALS, L.P., MCALLEN HOSPITALS, L.P. D/B/A

MCALLEN MEDICAL CENTER, MCALLEN MEDICAL CENTER,

MCALLEN HOSPITALS, L.P. D/B/A SOUTH TEXAS HEALTH SYSTEM

AND SOUTH TEXAS HEALTH SYSTEM,

Appellants,

v.

MARIO RODRIGUEZ AND LUDIVINA IRACHETA,INDIVIDUALLY

AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR,

Appellees.

On Appeal from the 389th District Court, Hidalgo County, Texas

Trial Court Cause No. C-2334-12-H

APPENDIX TO

BRIEF OF APPELLEES

Tab

 A Order denying MMC’s Motion to Dismiss (CR 402)

 B DX 11 (3 RR 136)

 C Email from PX2 (3 RR 40)

 D PX8 (3 RR 74-75)

 E Email from PX2 (3 RR 45)

 F PX1 (3 RR 6-7)

G Excerpts of Steve Gonzalez Testimony (2 RR 43-44, 52, 

57-58, 76-77)
TAB A 

Order denying MMC’s Motion to Dismiss 

(CR 402) 
402

CAUSE NO. C-2334-12-H 

MARIO I. RODRIGUEZ AND LJDUVINA § 

IRACHET A Individuallv and as Next Friends S 

nr xx s 

A MINOR § 

Plaintiffs § 

VS. 

HUGO F. CARVAJAL, M.D.; TEXAS 

INPATIENT PEDIATRICS, P.A.; TEXAS 

PEDICARE, P.A.; RGV PEDIATRIC 

CRITICAL CARE, P.A.; SOUTH TEXAS T TDrciO"lT r• 'DC Dl r• .111..1. ktroDTll 

§ 

§ 

§ 

§ 

§ 

§ 

'"'-'" J tVU, U I t '"J-l."-L, dHU ~ 

COMPREHENSIVE URGENCT CARE, P A. § 

Defendants § 

IN THE DISTRIC'r COURT 

389'h JUDICIAL DISTRICT 

HIDALGO COUNTY, TEXAS 

CAME ON FOR HEARING this day McAllen Hospital Defendants' Motion to Dismiss 

~ .n. ... \. . th .~ th 

this court is of the opinion that McAllen Hospital Defendants' Motion to Dismiss should be 

DENIED; it is therefore 

ORDERED that McAllen Hospital Defendants' Motion to Dismiss be and is hereby 

DENIED;.J+ is l\frt!'l@" 

,J"LU Ul<ll Ut<O 

, ~· . 

Signed this S...-day o~;t.....J~ . 
TAB B 

DX 11 

(3 RR 136) 


TAB C 

Email from PX2 

(3 RR 40) 

TAB D 

PX8 

(3 RR 74-75) 


TAB E 

Email from PX2 

(3 RR 45) 

TAB F 

PX1 

(3 RR 6-7) 


TAB G 

Excerpts of Steve Gonzalez Testimony 

(2 RR 43-44, 52, 57-58, 76-77) 
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

43

exhibits?

THE COURT: They're right here.

MR. HOLE: May I approach?

THE COURT: Sure.

MR. HOLE: Thank you.

Q. (By Mr. Hole) If you need to look at any of the

exhibits, here they are, but with respect to the letter

in -- I think it's dated October 11, 2013, do you have a

copy of the letter that Edward signed?

Let me just go ahead and mark it as Exhibit 10.

I don't think it's in yet.

MR. HOLE: Your Honor, at this time we'd

offer Exhibit 10.

MR. MITHOFF: We have no objections.

THE COURT: It's admitted.

MR. HOLE: Okay.

Q. (By Mr. Hole) And I'm referring to this letter

dated October 11th, 2013 -- sorry about the year --

which is been entered into evidence as Exhibit 10. Is

that a letter that Edward -- you recognize his signature

on there?

A. I do see his signature, yes.

Q. On the date that that was signed by Mr. Castillo,

who was Gonzalez and Castillo representing in connection

with this lawsuit?
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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A. We were representing RGV Pediatric Critical Care,

P.A., and McAllen Medical Center for the purposes of

obtaining a Rule 11 agreement on behalf of McAllen

Medical Center to extend the answer date that they would

be required to file an answer in this case; and for the

purpose of receiving service of the plaintiffs Chapter

74 reports. For those two purposes, we were

representing the hospital entities. We were also

representing the RGV Group, which I referenced earlier.

Q. You do understand that the RGV Group, the RGV

Pediatric Group, is adverse to McAllen Medical Center?

A. I understand that after you became the attorney

in this case and started all of your misrepresentation

and representation that there -- an adversity grew from

that, but did not exist back at the time when all

parties wanted me to represent the hospital, should the

summary judgment be granted on behalf of the group.

Q. You indicated --

THE COURT: Excuse me just one second. You

triggered a memory.

THE WITNESS: I'm sorry, Your Honor.

THE COURT: No, you triggered a memory.

Weren't you in this courtroom and made that specific

announcement actually multiple times?

THE WITNESS: Your Honor, I was.
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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A. That's not a true statement. I already answered

that question. I told you that we were asked to

represent the hospital for the purposes of obtaining a

Rule 11 agreement and also for the purposes of receiving

and accepting service of the plaintiff's Chapter 74

reports.

Q. Now --

A. If -- let me finish. If the motion for summary

judgment of RGV, RGV, the group, was granted, we were

then going to answer for the hospital entities and make

a formal appearance and at that time, open a file and do

what we have done hundreds of times for the hospital

over the last 15 years.

Q. You had not opened a file on this case with

respect to McAllen Medical Center to date, correct?

A. We had a file open. We did. It was a file that

is separate from the file of RGV Group, but we had not

prepared an original answer and filed it on behalf of

the hospital because we were waiting for a ruling from

the Court on the summary judgment for the group. And

everyone agreed and it was everyone's desire --

MR. HOLE: Objection as to the hearsay, Your

Honor. I didn't ask for hearsay. This is nonresponsive

anyway, but telling everybody agreed is hearsay.

THE WITNESS: I have written documents,
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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reason the Supreme Court says we need Rule 11 is because

if you're going to have an agreement, when we don't have

the he said/she said, we file the rule. That's why we

follow the Rule 11 to make it enforceable?

THE COURT: What was your question?

Q. (By Mr. Hole) Are you familiar --

MR. HOLE: May I rephrase it then, Your

Honor?

THE COURT: Yeah, I didn't understand your

question.

Q. (By Mr. Hole) Are you aware that because of the,

I take somebody at his word is the very reason why Rule

11 is enacted -- was enacted by the Supreme Court so you

don't have this question of whether or not he said/she

said? You know exactly what it is, the document speaks

for itself?

A. I've never met --

THE COURT: What was your question?

THE WITNESS: I don't understand it either,

Your Honor.

THE COURT: What was your question?

Q. (By Mr. Hole) Okay. Are you familiar that a Rule

11 agreement must be between the party or the party's

attorney and that you were not the party's attorney at

the time, correct?
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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A. I told you. Our firm was asked and instructed to

obtain a Rule 11 agreement from Plaintiff's counsel in

this lawsuit to extend the deadline for filing an answer

on behalf of the hospital entities. And we were asked,

as attorneys for the hospital entities, to accept

service of Chapter 74 reports on behalf of the hospital

entities. So if you're telling me, Was I acting as an

attorney on behalf of the hospitals and was I authorized

to do so? My answer is yes.

Q. The only authorization you got came from the JUA,

correct?

A. That's not exactly right because --

Q. What is exactly right?

A. Because Coleen Fadin was copied on the e-mail

related to the Rule 11 agreement and she knew what was

going on. She knew exactly the fact that the hospitals

JUA and UHS and her wanted us to represent the hospital

entities and that's why we obtained the extension of

time for the answer to be filed, hoping that the summary

judgment that we filed on behalf of the group would be

granted; at which time they wanted our firm because we'd

be freed up to go ahead and represent the hospital

entities.

Q. My question is --

THE COURT: Just out of -- just so that my
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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for the purpose of receipt of the Chapter 74 expert

reports, yes; I had been instructed to do that on behalf

of the hospital entities and I did that. I didn't have

any pending instructions at that time, but to that

extent, for sure I was representing the hospital.

Q. And so at the time of the deposition, if that was

during the period of time when these --

THE COURT: I don't know when the deposition

was taken. Can somebody give me a date?

MR. HOLE: Sure.

Q. (By Mr. Hole) Can you give us the date of the

deposition that you remember taking in his office in San

Antonio?

A. Do you really expect me to remember what day it

was? Back in 2013, I suppose.

MR. NIETO: I do not recall the date, Your

Honor, but I can find it out though.

MR. MITHOFF: I can represent, Your Honor

that his deposition was taken on February the 13th of

2013.

Q. (By Mr. Hole) Were you representing McAllen

Medical Center at that time?

THE COURT: You already asked that question.

Move on. He's answered the same way multiple times.

For the purposes of getting the Rule 11 agreement and
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GABRIELA S. SILVA CSR RPR

OFFICIAL COURT REPORTER, 389TH DISTRICT COURT

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for the purposes of the Chapter 74 reports. He's said

that multiple times already. And you've asked that

question multiple times now.

MR. HOLE: No, we didn't know the date of

the deposition, Judge.

THE COURT: It didn't change the dynamic of

what the question was.

MR. HOLE: Okay.

THE COURT: You just added the date.

MR. HOLE: Well, but at that period of time,

I don't think they had been asked to.

THE COURT: Move on.

MR. HOLE: Yes. Yes, Your Honor.

Q. (By Mr. Hole) Okay. So at any rate, did you

feel you had an attorney/client relationship with

McAllen Medical Center with respect to this case,

keeping in mind the parameters of the Texas Disciplinary

Rules of Professional Conduct?

A. Yes, I definitely had an attorney/client

relationship with McAllen Medical Center for the

purposes of obtaining a signed Rule 11 agreement,

extending the date of the answer deadline and for

purposes of accepting the Chapter 74 expert reports.

Q. Now, with respect --

A. I was instructed as their attorney to do that.