ACCEPTED
01-14-00792-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/30/2014 2:56:21 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00792-CV
________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT OF TEXAS 12/30/2014 2:56:21 PM CHRISTOPHER A. PRINE
_______________________________________________
Clerk
EUGENIA WOODARD
Appellant
V.
DR. RONNIE ELMORE (DDS)
Appellee.
________________________________________________
On Appeal from the 215th District Court Harris County, Texas
___________________________________________
BRIEF OF APPELLEE DR. RONNIE ELMORE (DDS)
________________________________________________
SPROTT NEWSOM LUNCEFORD QUATTLEBAUM MESSENGER /s/__________________________________ JOEL RANDAL SPROTT State Bar No. 18971580 Sprott@sprottnewsom.com DIANA M CAVAZOS State Bar No. 24056671 cavazos@sprottnewsom.com 2211 Norfolk, Suite 1150 Houston, Texas 77098 (713) 523-8338 (713) 523-9422 (FAX) ATTORNEYS FOR APPELLEE DR. RONNIE ELMORE (DDS)
IDENTITY OF PARTIES AND COUNSEL
In accordance with Rule 52.3(a) of the TEXAS RULES OF APPELLATE
PROCEDURE, the following list identifies all parties and their counsel involved in
the underlying lawsuit, so that the justices of this Honorable Court may evaluate
the need to recuse or disqualify themselves:
Appellee/Defendant: Dr. Ronnie Elmore (DDS)
Counsel For Appellee: Joel Randal Sprott State Bar No. 18971580 Diana M Cavazos State Bar No. 24056671 SPROTT NEWSOM LUNCEFORD QUATTLEBAUM MESSENGER 2211 Norfolk, Suite 1150 Houston, TX 77098 713-523-8338 713-523-9422 (Fax) sprott@sprottnewsom.com
Appellant/Plaintiff: Eugenia Woodard, Pro Se Appellant 115 Arbor St. #2 Baytown, TX 77520 832-996-6145 713-443-7035 832-279-4331 Woodardeugenia93@yahoo.com
ii
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 39 of the TEXAS RULES OF APPELLATE PROCEDURE, because
the dispositive issues or issues have been authoritatively decided, and the facts and
legal arguments are adequately presented in the briefs and records, appellee does
not believe that oral argument would significantly aid the Court in its
consideration of Appellant’s appeal.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
TABLE OF CONTENTS ..........................................................................................iv
INDEX OF AUTHORITIES...................................................................................... v STATEMENT OF THE CASE .................................................................................. 2
RESPONSE TO ISSUES PRESENTED FOR REVIEW.......................................... 4
STATEMENT OF FACTS ........................................................................................ 5
SUMMARY OF THE ARGUMENT ........................................................................ 7 ARGUMENT AND AUTHORITIES ........................................................................ 8
Response to Issue Presented 1:
THE DISTRICT COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER BECAUSE PLAINTIFF FAILED TO FILE A STATUTORILY REQUIRED EXPERT REPORT ........................................ 8
Response to Issue Presented 2:
ADR IS NOT APPROPRIATE WHEN THE COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER ...................................................... 8
A. THE TRIAL COURT WAS REQUIRED TO DISMISS ...................... 8
B. ADR WAS NOT APPROPRIATE ........................................................ 9
CONCLUSION AND PRAYER ............................................................................. 10 CERTIFICATE OF SERVICE ................................................................................ 10 CERTIFICATE OF COMPLIANCE ....................................................................... 11 APPENDIX .............................................................................................................. 13
iv
INDEX OF AUTHORITIES
Statutes & Rules of Procedure
TEX. CIV. PRAC. & REM. CODE ANN §74.351(a) ................................................. 5,7-8
TEX. CIV. PRAC. & REM. CODE ANN §74.351(b)(2) ............................................... 7-8
TEX. R. APP. P. 52.3(a). ............................................................................................. ii
TEX. R. APP. P. 39..................................................................................................... iii
TEX. R. APP. P. 38.1(i) ................................................................................................ 2
TEX. R. APP. P. 9.4(i)(3). .......................................................................................... 12
Case Law
Estate of Regis ex. Rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64 (Tex. App. – Houston [14th Dist.] 2006, no pet.) .................. 9
Keene Corp. v. Gardner, 837 S.W.2d 224 (Tex. App.—Dallas 1992, writ denied) ................................ 9
Scoresby v. Santillan, 346 S.W. 3d 546 (Tex. 2011) .......................................................................... 8
Walton v. Cannon, Short & Gaston, 23 S.W. 3d 143 (Tex. App. – El Paso 2000, no pet.) ...................................... 9
v
No. 01-14-00792-CV
________________________________________________
IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT OF TEXAS
_______________________________________________
EUGENIA WOODARD
Appellant
V.
DR. RONNIE ELMORE (DDS)
Appellee.
________________________________________________
On Appeal from the 215th District Court Harris County, Texas
___________________________________________
BRIEF OF APPELLEE DR. RONNIE ELMORE (DDS)
________________________________________________
Appellee, DR. RONNIE ELMORE submits this brief. Appellee will be
referred to as either “Dr. Elmore” or “Defendant.” Appellant, Eugenia Woodard,
will be referred to as “Plaintiff” or “Ms. Woodard.” The Clerk’s Record will be
cited as “CR”, followed by the relevant page numbers; and the Supplemental
Clerk’s Record will be cited as “SCR”, folloed by the relevant page numbers.
2
STATEMENT OF THE CASE
Nature of the case. This is a healthcare liability claim (“HCLC”) governed
by Chapter 74 of the Texas Civil Practices and Remedies Code. Ms. Woodard filed
her Original Petition on February 26, 2014. (CR 3). Plaintiff made allegations
against Dr. Elmore for alleged injuries sustained during a tooth extraction. (CR 3).
Plaintiff also sued Dr. Elmore’s insurance company for “resist[ing] the claim.” (CR
3). Defendants filed their Original Answer on March 10, 2014. (CR 8).
Course of Proceedings. For ease in the review of the procedure history of
this case, and due to the fact that Plaintiff has not cited to the Clerk’s Record, in
direct violation of TEX. R. APP. P. 38.1(i), Dr. Elmore has prepared the following
chart which details the relevant procedural events:
Date Event CR citation
2/26/2014 Plaintiff’s Original Petition Motion for Oral CR 3 Hearing
3/10/2014 Defendants Original Answer CR 8 3/18/2014 Defendant’s Special Exceptions SCR 3 3/28/2014 Defendant Fortress Insurance Company’s SCR 5 Motion for Summary Judgment 5/2/2014 Order granting Fortress Insurance SCR 9 Company’s Motion for Summary Judgment 7/11/2014 Defendant’s Motion to Dismiss SCR 11 8/6/2014 Plaintiff’s Motion for ADR SCR 13 8/19/2014 Objection to Dispute Resolution SCR 18 8/25/2014 Order denying Plaintiff’s Request for ADR SCR 20 8/29/2014 Order granting Defendant, Dr. Ronnie CR 14 Elmore, DDS’ Motion to Dismiss
3
Date Event CR citation
9/12/2014 Plaintiff’s Motion to Vacate Order of CR 16 Dismissal and to Reinstate Case 9/16/2014 Defendant, Dr. Ronnie Elmore, DDS’ CR 21 Response to Plaintiff’s Motion to Vacate 9/22/2014 Order denying Plaintiff’s Motion to Vacate CR 23 and to Reinstate Case
9/24/2014 Notice of Appeal CR 28
4
RESPONSE TO ISSUES PRESENTED FOR REVIEW
ISSUE 1: THE DISTRICT COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER BECAUSE PLAINTIFF FAILED TO FILE A STATUTORILY REQUIRED EXPERT REPORT.
ISSUE 2: ADR IS NOT APPROPRIATE WHEN THE COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER.
5
STATEMENT OF FACTS
On February 26, 2014, Plaintiff filed a healthcare liability claim (“HCLC”).
(CR 3). Plaintiff made allegations against Dr. Elmore for alleged injuries sustained
during a tooth extraction. (CR 3). Plaintiff also sued Dr. Elmore’s insurance
company Fortress Insurance Company for “resist[ing] the claim.” (CR 3).
Defendant, Fortress Insurance Company filed a Motion for Summary Judgment for
any and all claims against it on March 28, 2014. (SCR 5). The Court granted
Fortress Insurance Company’s Motion for Summary Judgment and dismissed all
claims against it with prejudice on May 2, 2014. (SCR 9).
Ms. Woodard had sought treatment from Defendant Dr. Elmore for dental
care. (CR 3). During one of the treatment sessions, Plaintiff claims to have
sustained multiple injuries to her lower back, neck, mouth, and jaw as a result of an
extraction at Dr. Elmore’s office. (CR 3).
In accordance with the procedural requirements of the Healthcare Liability
Act (“HCLA”), Plaintiff was required to serve, within 120 days from the date this
Defendant filed his original answer, an expert report and curriculum vitae of an
expert critical of each remaining Defendant. TEX. CIV. PRAC. & REM. CODE
§74.351(a). Plaintiff wholly failed to serve the required Chapter 74 expert report.
6
The District Court held a hearing on the Defendants' Motions to Dismiss,
and on August 29, 2014, granted Dr. Elmore’s motion. (CR 14). Plaintiff timely
filed her Notice of Appeal, although she has failed to pay her court fees to this
Court. (CR 28).
7
SUMMARY OF THE ARGUMENT
In accordance with the procedural requirements of the Healthcare Liability
Act (“HCLA”), Plaintiff was required to serve, within 120 days from the date that
Defendant filed his original answer, an expert report and curriculum vitae of an
expert critical of each remaining Defendant. TEX. CIV. PRAC. & REM. CODE
§74.351(a). Plaintiff failed to serve the required Chapter 74 expert report. The
dismissal of Plaintiff’s case for failing to file an expert report was appropriate and
should be affirmed. TEX. CIV. PRAC. & REM. CODE §74.351(b)(2). ADR was not
appropriate or required in this case.
8
Response to Issue 1: THE DISTRICT COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER BECAUSE PLAINTIFF FAILED TO FILE A STATUTORILY REQUIRED EXPERT REPORT.
Response to Issue 2: ADR IS NOT APPROPRIATE WHEN THE COURT'S DISMISSAL OF PLAINTIFF'S HCLC WAS PROPER.
ARGUMENT AND AUTHORITIES
A. THE TRIAL COURT WAS REQUIRED TO DISMISS.
A plaintiff in a healthcare liability claim shall, no later than the 120th day
after the date Defendant files his original answer, serve on each party an expert
report, with curriculum vitae, critical of each remaining Defendant. TEX. CIV.
PRAC. & REM. CODE §74.351(a). If Plaintiff fails to file an expert report, the Court
“on the motion of the affected health care provider…SHALL…enter an Order that
dismisses the claim with respect to the physician with prejudice to the re-filing of
the claim.” TEX. CIV. PRAC. & REM. CODE §74.351(b)(2). See also, Scoresby v.
Santillan, 346 S.W. 3d 546, 549 (Tex. 2011) (The Medical Liability Act entitles a
defendant to dismissal of a health care liability claim if... he is not served with an
expert report showing that the claim against him has merit).
Defendant, Dr. Elmore, filed his original answer on March 10, 2014. (CR 8).
Plaintiff failed to file the statutorily required expert report within 120 days, or by
9
July 8, 2014. If a Plaintiff fails to timely file an expert report, the trial court has no
discretion to do anything other than dismiss the case. Estate of Regis ex. Rel.
McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App. –
Houston [14th Dist.] 2006, no pet.) Thus, in this case, the District Court did not
abuse its discretion in granting Defendant, Dr. Elmore’s Motion to Dismiss
because the Court had no discretion but to dismiss Plaintiff’s case due to her
failure to file the statutorily required expert report.
B. ADR IS NOT APPROPRIATE.
The trial court has the discretion in determining whether mediation is
appropriate for an individual case. Walton v. Cannon, Short & Gaston, 23 S.W. 3d
143, 150 (Tex. App. – El Paso 2000, no pet.) (citing Keene Corp. v. Gardner, 837
S.W.2d 224, 232 (Tex. App.—Dallas 1992, writ denied). Because Plaintiff failed
to file her statutorily required expert report, and because the Trial Court properly
dismissed Plaintiff’s claims pursuant to Chapter 74, alternative dispute resolution
is not proper in this case. There are no issues in either law or fact to compromise
through the ADR process, and therefore ADR was not appropriate or required in
this case and the trial court’s denial of Plaintiff’s Motion for ADR did not
constitute an abuse of discretion.
10
CONCLUSION AND PRAYER
The Trial Court did not abuse its discretion in dismissing Plaintiff’s claims
against Defendant because Plaintiff failed to timely file her statutorily required
expert report. Additionally, the Court’s denial of Plaintiff’s Motion for ADR did
not constitute an abuse of discretion. Therefore, Appellee, DR. RONNIE
ELMORE (DDS), prays that this court affirm the District Court’s dismissal of
Plaintiff’s medical malpractice case and order Plaintiff to pay taxable court costs.
Respectfully submitted,
SPROTT NEWSOM LUNCEFORD QUATTLEBAUM MESSENGER
/s/ JOEL RANDAL SPROTT JOEL RANDAL SPROTT State Bar No. 18971580 Sprott@sprottnewsom.com DIANA M CAVAZOS State Bar No. 24056671 cavazos@sprottnewsom.com 2211 Norfolk, Suite 1150 Houston, Texas 77098 (713) 523-8338 (713) 523-9422 (FAX)
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion was served upon the following counsel of record on this 30th day of December, 2014, by E-Filing; Certified Mail, Return Receipt Requested; and/or facsimile in accordance with the Texas Rules of Appellate Procedure:
Egenia Woodard, Pro Se Appellant Via CMRRR: 70053110000282312502 115 Arbor St. #2 Via Email:Woodardeugenia93@yahoo.com Baytown, TX 77520
/s/ JOEL RANDAL SPROTT JOEL RANDAL SPROTT
12
CERTIFICATE OF COMPLIANCE
Pursuant to TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(3), I hereby certify that this brief contains 854 words (excluding the caption, identity of the parties and counsel, statement regarding oral argument, table of contents, table of authorities, statement of the case, statement of issues presented, statement of procedural history, signature, proof of service, certification, and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
/s/ JOEL RANDAL SPROTT JOEL RANDAL SPROTT
13
No. 01-14-00792-CV
________________________________________________
IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT OF TEXAS
_______________________________________________
EUGENIA WOODARD
Appellant
V.
DR. RONNIE ELMORE (DDS)
Appellee.
________________________________________________
On Appeal from the 215th District Court Harris County, Texas
___________________________________________
APPENDIX
________________________________________________
Order Granting Defendant’s Motion to Dismiss .......................................................... Tab 1
Certified Document Number: 62160868 - Page 1 of 2
Certified Document Number: 62160868 - Page 2 of 2
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this August 29, 2014
Certified Document Number: 62160868 Total Pages: 2
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com