Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. v. Jack Thomas Altaras
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-09-00236-CV
Dr. Steven Leon Gates, D.O. and/or
Dr. Steven Leon Gates, D.O., P.A.,
Appellant
v.
Jack Thomas Altaras,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. C200800182
ORDER
Jack Thomas Altaras sued Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. for negligence. Altaras presented an expert report in the form of an affidavit from Dr. Bernard A. McGowen. Gates filed objections to the report and a motion to dismiss. Both were denied and Gates appealed. See 10-08-00239-CV. A few weeks prior to oral argument in the appeal, Gates and Altaras reached an agreement that Altaras would submit a supplemental report within 45 days and Gates would dismiss his appeal. After the supplemental report was presented, Gates again filed, in one document, objections and a motion to dismiss. The trial court again denied relief, and Gates appealed. On appeal, this Court held that the trial court erred in finding the expert report to be sufficient and reversed and remanded the case for further proceedings.
On appeal, Gates argued in his third issue that the expert affidavit failed to mention the professional association, Gates, P.A. Gates further argued that because of this failure, no expert report was filed as to Gates, P.A. and no extension to cure deficiencies in the report was permitted. Altaras argued in response that because his claims were based solely on the actions of Gates and no direct liability claims were asserted against Gates, P.A., the affidavit was not required to mention the professional association by name.
In our opinion, we determined that because the expert affidavit was deficient as to Gates, it was deficient as to Gates, P.A. as well. We also held that we did not need to determine whether the affidavit was the equivalent of no report as to Gates, P.A.
In a motion for rehearing, Gates asks that we dismiss the claims against Gates, P.A. because the expert affidavit did not address any conduct of Gates, P.A. and is thus no report as to Gates, P.A. We decline to dismiss the claims for two reasons. First, Altaras argued in response to Gates’s argument that no direct liability claims were asserted against Gates, P.A., and thus, no mention of the professional association in the expert affidavit was necessary. Second, Gates never made this “no report” argument to the trial court. We decline to address an argument of this nature raised for the first time on appeal. See Tex. R. App. P. 33.1.
Accordingly, Gates’s motion for rehearing is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Motion denied
Order issued and filed April 14, 2010
Publish
round that there was no evidence of rental value or cost of repairs, but his objections were overruled. His first point is that there was no evidence to support the submission of the damage question. He contends in points two and three that the evidence is factually insufficient to support an award of rental value or cost of repairs. His fifth point is that the damage award is excessive. Finally, in point six he argues that the damage question should not have been submitted because there was no evidence that Nassar caused Cole's damages.
With respect to her damages, Cole said that she purchased concrete blocks that were used to cover the opening at the bottom of the wooden fence so that her dogs would not escape from her yard. She never testified, however, as to their cost. Moreover, there is no evidence of the cost of moving shrubs that were displaced by the wooden fence or the cost of replacing the chain-link fence that was destroyed. In short, there is no evidence of the reasonable and necessary cost of repairs.
She also testified about other damages:
Q And, what other damage have you sustained because of that fence being on your property?
. . .
A Um -- every time I look out my window, I look at that nasty set up there. It was all hedge along the chain link fence. . . . And now, there's no hedge. And there's no chain link fence. . . . and it hits me in the face every time I look out the window, sorry to say, . . . and it reminds me of what I've gone through, and it's just not a very happy sensation to look out the window anymore.
Q How long has that been going on?
A Oh, almost two and a half years now.
Q Have you suffered loss of sleep, or some other loss, just because of this?
A Well, I --
[DEFENDANT'S COUNSEL]: Objection. Your Honor, these mental anguish damages were not pled, --
[OBJECTION SUSTAINED]
Q You have not had the use of that land? Is that right?
A No. I haven't had the use of the land, and I haven't been able to do anything to redeem the appearance of it, because I kept waiting for the hedge to get moved back where it belonged.
Q Are you able to put a dollar value on your loss, Mrs. Cole?
A I'd hate to try, but -- golly. How about, -- oh, $5.00 a day. That sound reasonable?
Q You feel you've lost $5.00 a day, in fact, that's your damages, because of the loss of use of that land?
A Yeah, I think so.
Q For some two years[?]
A Mm hmm.
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Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. v. Jack Thomas Altaras (Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. v. Jack Thomas Altaras) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.