East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors

Opinion

ACCEPTED

12-15-00014-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

5/6/2015 10:58:42 AM

CATHY LUSK

CLERK

No. 12-15-00014-CV

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FILED IN

In the Twelfth Court of 12th COURT OF APPEALS TYLER, TEXAS

Appeals at Tyler, Texas

5/6/2015 10:58:42 AM

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CATHY S. LUSK

East Texas Medical Center d/b/a East Texas Medical CenterClerk Emergency Medical Services Appellant,

v.

Jody Delaune, Individually and as Personal Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny Delaune and Dee Ann Delaune, Minors

Appellees.

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Appeal from 7th District Court, Smith County, Texas

Honorable Kerry L. Russell, Presiding Judge

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APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF

TO THE HONORABLE TYLER COURT OF APPEALS:

COMES NOW, East Texas Medical Center (“ETMC”), Appellant in this matter, and pursuant to Rules 10.5(b) and 38.6(d) of the TEXAS RULES OF APPELLATE PROCEDURE, files its First Motion for Extension of Time to File Brief, as follows:

I.

The deadline for ETMC to file its brief in this matter was May 4, 2015. ETMC requests that it be granted a thirty (30) day extension within which to file its brief, making its brief due on or before June 3, 2015. There is no specific deadline to file this

APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF – Page 1 motion to extend time under the TEXAS RULES OF APPELLATE PROCEDURE. See, TEX. R. APP. P., Rule 38.6(d). This motion is filed one day after the Court’s May 5, 2015 letter and before the May 15, 2014 deadline provided in the Court’s May 5, 2015 letter. This Court has the authority under Rule 38.6(d) of the TEXAS RULES OF APPELLATE PROCEDURE to extend the time within which a party has to file a brief.

II.

ETMC bases its request for an extension of time on the following facts.

A. Counsel for ETMC misinterpreted the Court’s April 2, 2015 letter to mean that the thirty-day time frame within which ETMC’s brief was due did not begin to run until after the expiration of the thirty (30) days mentioned in that letter for counsel for ETMC to review the appellate record and request any supplementation of the appellate record. Thus, counsel erroneously calculated the deadline for Appellant’s brief to be June 3, 2015;

B. During this time frame counsel for ETMC has had the following additional obligations that would have interfered with his ability to timely prepare ETMC’s brief and based on which counsel for ETMC would have timely sought a motion for extension of time to file ETMC’s brief had he accurately understood the due date for this brief was May 4, 2015:

1. Response on the Merits to a Petition for Review to the Texas Supreme Court in Crocker v. Babcock, et al., Case No. 15-0080;

2. Motion for Rehearing in the Texas Supreme Court in Van Ness v.

ETMC First Physicians, et al., Case No. 14-0353;

APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF – Page 2 3. Response on the Merits to a Petition for Review to the Texas Supreme Court in Reddic v. East Texas Medical Center-Crockett, Case No. 14-0333;

4. Appellees’ brief in the Dallas Court of Appeals in Phillips v. Jones and Medical Clinic of North Texas, No. 05-15-00005-CV;

5. Appellees’ brief in the Dallas Court of Appeals in Durham v.

Children’s Medical Center, et al., No. 05-14-01464-CV;

6. Two responses to complaints before the Texas Medical Board, and;

7. One response to a complaint before the Texas Board of Nursing.

III.

ETMC has not sought or been granted any previous extensions for time within which to file its brief in this matter. Further, Appellees have not suffered any material injury since initial extensions of time to file appellate briefs are routinely sought and granted; in addition to the fact that by providing ETMC an additional thirty (30) days to file its brief the time within which the Tyler Court of Appeals will address and resolve this matter will not be delayed to any meaningful degree.

WHEREFORE, PREMISES CONSIDERED, East Texas Medical Center respectfully requests that it Motion to Extend Time to File Brief be granted, thereby making its brief due on or before June 3, 2015.

APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF – Page 3

Respectfully Submitted,

THIEBAUD REMINGTON THORNTON BAILEY, L.L.P.

By: /s/Russell G. Thornton RUSSELL G. THORNTON

State Bar Card No. 19982850 rthornton@trtblaw.com

4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206

(214) 954-2200

(214) 754-0999 (Fax)

COUNSEL FOR APPELLANT

EAST TEXAS MEDICAL CENTER d/b/a EAST TEXAS MEDICAL CENTER EMERGENCY MEDICAL SERVICES

CERTIFICATE OF CONFERENCE This is to certify that on the morning of May 6, 2015, counsel for Appellant East Texas Medical Center attempted to conference with counsel for Appellee regarding this motion. Counsel for Appellant has not heard back from Appellee’s counsel. In order to present this matter to the Court in an expeditious a manner as possible, this motion is being filed before Appellant’s counsel has conferred with Appellee’s counsel.

/s/ Russell G. Thornton

RUSSELL G. THORNTON

APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF – Page 4

CERTIFICATE OF SERVICE

The undersigned certifies that on the 6th day of May, 2015, a true and correct copy of the foregoing document was delivered to counsel listed below:

VIA E-SERVE & E-MAIL: Mr. Ryan Krebs, M.D., J.D. THE LAW OFFICE OF RYAN KREBS, M.D., J.D. 805 W. 10th Street, Suite 300 Austin, Texas 78701 ryan@ryankrebsmdjd.com

/s/ Russell G. Thornton

RUSSELL G. THORNTON

APPELLANT EAST TEXAS MEDICAL CENTER’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF – Page 5