Case Information
*0 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 2/26/2015 10:32:58 PM LISA MATZ Clerk *1 ACCEPTED 05-14-00202-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/26/2015 10:32:58 PM LISA MATZ CLERK 05-14-00202-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS _______________________________________________ MILLBOOK HEALTHCARE AND REHABILITATION CENTER ,
Defendant & Appellant, vs.
SHAUNDRA EDWARDS, on Behalf of the Estate of Georgia Cullens ,
Plaintiff & Appellee. _______________________________________________ On Accelerated Interlocutory Appeal from the 14 th Judicial District Court for
Dallas County, Texas Trial Court Cause No. DC- 13-07856-A __________________________________________________________________
APPELLEE’S MOTION FOR REHEARING __________________________________________________________________
Julius S. Staev Texas Bar No. 00792855 jstaev@staevlaw.com Brian R. Arnold Texas Bar No. 01340195 arnoldenda@aol.com 2101 Cedar Springs Rd., Ste. 1050 Dallas, Texas 75201 Tel: (214) 347-0569 Fax: (214) 279-5674 Counsel for Appellee *2 TABLE OF CONTENTS TABLE OF CONTENTS ....................................................................................... ii
INDEX OF AUTHORITIES .................................................................................. iii
ARGUMENTS AND AUTHORITIES ................................................................. 1
ATTORNEY’S FEES AND COSTS ARE NOT AVAILABLE
TO APPELLANT AS TIMELY REPORT WAS SERVED ........................ 1
Appellee’s Amended Expert Report represented a good faith effort to comply with the definition of an expert report under minimal standards suggested by the Supreme Court in Scoresby v. Santillan ............................... 1 PRAYER ............................................................................................................... 4
CERTIFICATE OF SERVICE ............................................................................ 5
CERTIFICATE OF COMPLIANCE .................................................................... 5
-ii- *3 INDEX OF AUTHORITIES CASES:
Scoresby v. Santillan ,
346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413 (Tex., 2011) ) . . . . . . . . . . -2-, -3-
TEXAS CONSTITUTION, STATUTES AND RULES:
Tex. Civ. Prac. & Rem. Code § 74.351(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
-iii- *4
ARGUMENTS AND AUTHORITIES Appellee requests that the Court reconsider its decision and opinion holding
that the expert report filed by Plaintiff “did not represent an objective good faith
effort to comply with the definition of an expert report” and therefore constituted
“no report,” even though timely served, such that Appellants should be awarded
mandatory attorney’s fees.
It its opinion the Court reaches this conclusion because the report “ was
made by a person not qualified to testify regarding the standard of care.” See
Court’s Opinion, Page 6. Therefore, the Court also concluded, that Appellant
should be entitled to a mandatory award of attorney’s fees as per Tex. Civ. Prac.
& Rem. Code § 74.351(b) , and remanded the case to the trial court for further
evidentiary findings on the attorney fees issue.
Under the statute, mandatory attorney’s fees are appropriate if no report at
all is filed within 120 days or if the report filed does not constitute an objective
good faith effort to comply with the statute.
Appellee’s respectfully requests that the Court reconsider this conclusion in
light of the Supreme Court’s opinion in Scoresby v. Santillan . In the Scoresby
case, the Supreme Court appears to ease the definition of what constitutes an
objective good faith effort to comply with the statute. The court stated:
“Based on the Act's text and stated purposes, we hold that a document qualifies as an expert report if it contains a statement of
opinion by an individual with expertise indicating that the claim
asserted by the plaintiff against the defendant has merit.”
“This lenient standard avoids the expense and delay of multiple
interlocutory appeals and assures a claimant a fair opportunity to
demonstrate that his claim is not frivolous.”
Scoresby v. Santillan , 346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413 (Tex.,
2011).
The Supreme Court’s opinion in Scoresby seems to impart greater discretion
to the trial court to determine if a report meets the minimum standard for a report
and if such report constitutes an objective good faith effort to comply.
In light of the Scoresby opinion, this Court’s decision that Dr. Arauco’s
expert was so devoid and deficient, based on his lack of qualifications alone, as to
not even constitute a good faith effort to comply, is an extraordinarily strict
application of the statute and results in a harsh application of the law. Under the
minimum standards discussed in by the Supreme Court in Scoresby , this Court’s
decision arguably creates an unjust outcome as to Plaintiff, by requiring her to pay
attorney’s fees. Plaintiff made a seeming good faith effort to file a report on time
and to then amend the report to further attempt to comply with requirements of the
statute. Such manifest efforts should not lead to an award of attorney’s against the
Plaintiff – a result seeming intended to punish truly frivolous law suits.
The abuse of discretion standard requires action by the trial court that is
arbitrary and unreasonable and without reference to any guiding rules or principles.
This Court’s opinion that the Trial Judge not only abused his discretion in finding
that the expert report meets the minimal standard for the case to proceed, but that
the expert report did not even constitute an objective good faith effort to comply, is
an over application of the rule and creates an unjust result.
As discussed in Appellee’s Brief, this case involved a simple broken leg
injury and a simple analysis of a health care facility’s duty to protect patients from
common injuries (such a being dropped by staff). These facts are important, in that
they are overriding and provide a reasonable basis for the Trial Judge’s decision.
This Court’s decision unduly strips the trial judge of discretion provided to him by
the statute.
PRAYER For these reasons, Appellee requests that this court reconsider its opinion
and issue a revised opinion according to the arguments above, reversing the Trial
Judge’s order denying Appellant’s Motion to Dismiss, but NOT remand for any
further proceedings.
Respectfully submitted, Date: February 26, 2015 /s/ Julius S. Staev
_________________________ Julius S. Staev Texas Bar No. 00792855 jstaev@staevlaw.com Brian R. Arnold Texas Bar No. 01340195 arnoldenda@aol.com 2101 Cedar Springs Rd., Ste. 1050 Dallas, Texas 75201 Tel: (214) 347-0569 Fax: (214) 279-5674 Counsel for Appellee *8 CERTIFICATE OF SERVICE This certifies that the undersigned served Appellee’s Motion for Rehearing,
by sending it to counsel for Appellant, Bryan Rutherford, Esq., MacDonald Devin,
P.C., 1201 Elm Street, Ste. 3800, Dallas, Texas 75270, by Email service through
the eFileTexas Electronic Filing System, on February 26, 2015.
/s/ Julius S. Staev ______________________________ Julius S. Staev Counsel for Appellee CERTIFICATE OF COMPLIANCE WITH RULE 9.4 This brief complies with the typeface requirements of Tex. R. of App. Proc.
R. 9.4 because the brief has been prepared and is printed in the conventional
typeface of Time New Roman no smaller that 14 point style, except for footnotes,
which are in 12 point style.
This brief also complies with the length requirements of Tex. R. of App.
Proc. R. 9.4 because this brief contains less than 4,700 words, excluding parts of
the brief that are exempted.
The undersigned understands that a material misrepresentation in this
certificate or circumvention of the types style or length limits of Tex. R. of App.
Proc. R. 9.4 may result in the Court’s striking the brief and imposing sanctions
against the person signing the brief.
This brief was filed electronically with the Court with an electronic copy
being sent to Appellants’ counsel.
/s/ Julius S. Staev Julius S. Staev Counsel for Appellee