Plano AMI LP v. Erwin Cruz, M.D.

Opinion

Appellate Docket Number: 05-12-_____-CV 05-12-01480-CV ACCEPTED 225EFJ017164427 FIFTH COURT OF APPEALS

Appellate Case Style: Plano AMI LP, et al. DALLAS, TEXAS 12 November 2 P3:44 Lisa Matz

Vs. CLERK Erwin Cruz, M.D.

Companion Case I.No.:

Appellant

FILED IN

5th COURT OF APPEALS

DALLAS, TEXAS

11/2/2012 3:44:08 PM

Amended/corrected statement: DOCKETING STATEMENT (Civil) LISA MATZ Clerk

Appellate Court: 5th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

Person 8 Organization (choose one) 8 Lead Attorney Organization Name: Plano AMI LP First Name: P. First Name: Middle Name: Michael Middle Name: Last Name: Jung Last Name: Suffix: Suffix: Law Firm Name: Strasburger & Price, LLP Pro Se: Address 1: 4400 Bank of America Plaza Address 2: 901 Main Street City: Dallas State: Texas Zip+4: 75202 Telephone: 214-651-4724 ext. Fax: 214-659-4022 Email: michael.jung@strasburger.com SBN: 11054600

Person 8 Organization (choose one) 8 Lead Attorney Organization Name: Ghani Medical Investments, Inc. First Name: P. First Name: Middle Name: Michael Middle Name: Last Name: Jung Last Name: Suffix: Suffix: Law Firm Name: Strasburger & Price, LLP Pro Se: Address 1: 4400 Bank of America Plaza Address 2: 901 Main Street City: Dallas State: Texas Zip+4: 75202 Telephone: 214-651-4724 ext.

05-12-01480-CV

Fax: 214-659-4022

Email: michael.jung@strasburger.com SBN: 11054600

Person 8 Organization (choose one) 8 Lead Attorney Organization Name: North Dallas Medical Imaging, L.P. First Name: P. First Name: Middle Name: Michael Middle Name: Last Name: Jung Last Name: Suffix: Suffix: Law Firm Name: Strasburger & Price, LLP Pro Se: Address 1: 4400 Bank of America Plaza Address 2: 901 Main Street City: Dallas State: Texas Zip+4: 75202 Telephone: 214-651-4724 ext. Fax: 214-659-4022 Email: michael.jung@strasburger.com SBN: 11054600

Person 8 Organization (choose one) 8 Lead Attorney Organization Name: MCG Group, Inc. First Name: P. First Name: Middle Name: Michael Middle Name: Last Name: Jung Last Name: Suffix: Suffix: Law Firm Name: Strasburger & Price, LLP Pro Se: Address 1: 4400 Bank of America Plaza Address 2: 901 Main Street City: Dallas State: Texas Zip+4: 75214 Telephone: 214-651-4724 ext. Fax: 214-659-4022 Email: michael.jung@strasburger.com SBN: 11054600

8 Person Organization (choose one) 8 Lead Attorney

Lead Attorney

Suffix: Middle Name: 05-12-01480-CV Law Email:

8

Last

Firm Name:

Telephone: First Name: City:

Name:

Jung 214-651-4724 P. Dallas

ext.

Pro Se: Address SBN: 1: 4400

11054600 Bank of America Plaza Last Name: First Name: Ghani Mehrdad Suffix:

Fax: 214-659-4022 Middle Name:

Texas Michael

State: Address 2: 901 Main Street Zip+4: 75202 Suffix: Email: Name: Strasburger & Price, LLPext.

Law Firmmichael.jung@strasburger.com Middle Name: Last Name:

Telephone: Jung

214-651-4724

8 Person Organization (choose one) 8 Lead Attorney First Name: Ben

First Name: Michael Middle Name: L. Middle Name: Last Name: Mesches Last Name: Taba Suffix: Suffix: Law Firm Name: Haynes and Boone, LLP Pro Se: Address 1: 2323 Victory Avenue Address 2: Suite 700 City: Dallas State: Texas Zip+4: 75219 Telephone: 214-651-5234 ext. Fax: 214-200-0913 Email: ben.mesches@haynesboone.com SBN: 24032737

8 Person Organization (choose one) 8 Lead Attorney First Name: Kirk

First Name: Edwin Middle Name: L. Middle Name: Last Name: Pittard Last Name: Cruz Suffix: Suffix: Law Firm Name: Kelly, Durham & Pittard, LLP Pro Se: Address 1: P.O. Box 224626 Address 2: City: Dallas

05-12-01480-CV

State: Texas Zip+4: 75222 Telephone: 214-946-8000 ext. Fax: 214-946-8433 Email: kpittard@kdplawfirm.com SBN: 24010313

8 Person Organization (choose one) Lead Attorney First Name: Frank

First Name: Edwin Middle Name: L. Middle Name: Last Name: Branson Last Name: Cruz Suffix: Suffix: Law Firm Name: The Law Offices of Frank L. Branson, PC Pro Se: Address 1: Highland Park Place Address 2: 4514 Cole Avenue, 18th Floor City: Dallas State: Texas Zip+4: 75205 Telephone: 214-522-0200 ext. Fax: 214-521-5485 Email: flbranson@flbranson.com SBN: 02899000

05-12-01480-CV

Nature of Case (Subject matter or type of case): Corporation & Partnership Date order or judgment signed: August 7, 2012 Type of judgment: Jury Trial Date notice of appeal filed in trial court: November 2, 2012 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes 8 No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): Yes 8 No If yes, please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): Yes o No

Permissive? (See TRAP 28.3): Yes 8 No If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): Yes 8 No If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: Yes 8 No If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? Yes 8 No Judgment or order disposes of all parties and issues: 8 Yes No Appeal from final judgment: 8 Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes 8 No

Motion for New Trial: 8 Yes No If yes, date filed: September 5, 2012 Motion to Modify Judgment: 8 Yes No If yes, date filed: September 5, 2012 Request for Findings of Fact Yes 8 No If yes, date filed: and Conclusions of Law:

Yes 8 No If yes, date filed:

Motion to Reinstate:

Yes 8 No If yes, date filed:

Motion under TRCP 306a: Other: Yes 8 No If other, please specify:

Affidavit filed in trial court: Yes 8 No If yes, date filed:

Contest filed in trial court: Yes No If yes, date filed:

Date ruling on contest due:

Ruling on contest: Sustained Overruled Date of ruling:

05-12-01480-CV

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes 8 No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

Court: 101st District Court Clerk's Record: County: Dallas Trial Court Clerk: 8 District County 10-16274-E Was clerk's record requested? 8 Yes No If yes, date requested: November 2, 2012 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Martin Were payment arrangements made with clerk? Middle Name: 8 Yes No Indigent Last Name: Lowy Suffix: Address 1: 600 Commerce Street Address 2 : Suite 685 City: Dallas State: Texas Zip + 4: Telephone: 214-653-6937 ext. Fax: 214-653-6145 Email: not published

Reporter's or Recorder's Record: Is there a reporter's record? 8 Yes No Was reporter's record requested? 8 Yes No

Was there a reporter's record electronically recorded? Yes 8 No If yes, date requested: November 2, 2012

If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? 8 Yes No Indigent

05-12-01480-CV

8 Court Reporter Court Recorder 8 Official Substitute

First Name: David Middle Name: Last Name: Langford Suffix: Address 1: 600 Commerce Street Address 2: Suite 685 City: Dallas State: Texas Zip + 4: 75202 Telephone: 214-653-6608 ext. Fax: Email: david.langford@dallascounty.org

Supersedeas bond filed: 8 Yes No If yes, date filed: October 16, 2012

Will file: Yes No

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes 8 No If yes, briefly state the basis for your request:

Should this appeal be referred to mediation? 8 Yes No If no, please specify: Has the case been through an ADR procedure? 8 Yes No If yes, who was the mediator? Mark Whittington What type of ADR procedure? mediation At what stage did the case go through ADR? Pre-Trial 8 Post-Trial Other

If other, please specify: Type of case? Corporation & Partnership Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Summary judgment error (de novo standard); charge error (abuse of discretion standard), evidentiary admission (abuse of discretion standard), evidentiary sufficiency How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. $4.684,718.05 If money judgment, what was the amount? Actual damages: $2,098,456.52 Punitive (or similar) damages: $2,586,261.53

Attorney's fees (trial): $0.00 05-12-01480-CV

Attorney's fees (appellate): $0.00 Other: If other, please specify:

Will you challenge this Court's jurisdiction? Yes 8 No Does judgment have language that one or more parties "take nothing"? 8 Yes No Does judgment have a Mother Hubbard clause? 8 Yes No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 8 4 5 Please make my answer to the preceding questions known to other parties in this case. 8 Yes No Can the parties agree on an appellate mediator? 8 Yes No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email Mark Whittington 8401 N. Central Expwy., 214-744-5267 214-720-6010 mwhittington@jamsadr.c Suite 610, Dallas om Languages other than English in which the mediator should be proficient: None Name of person filing out mediation section of docketing statement: P. Michael Jung

List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: Trial Court:

Style:

Vs.

05-12-01480-CV

The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? Yes 8 No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? Yes No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

Signature of counsel (or pro se party) Date: November 2, 2012

Printed Name: Ben L. Mesches State Bar No.: 24032737

Electronic Signature: /s/ Ben L. Mesches (Optional)

05-12-01480-CV

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on November 2, 2012 .

Signature of counsel (or pro se party) Electronic Signature: /s/ Ben L. Mesches (Optional )

State Bar No.: 24032737 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state:

(1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: November 2, 2012 Manner Served: Email

First Name: Kirk

Middle Name: L. Last Name: Pittard Suffix: Law Firm Name: Kelly, Durham & Pittard, LLP Address 1: P.O. Box 224626 Address 2: City: Dallas State Texas Zip+4: 75222 Telephone: 214-946-8000 ext. Fax: 214-946-8433 Email: kpittard@kdplawfirm.com If Attorney, Representing Party's Name: Edwin Cruz

Ver. 1.0 7/12

Telephone: Law Middle City: Fax: If Email: Last First Middle Last City: Email: If Law Date Manner Please Manner Please State Firm Attorney, Address Address Fax: Suffix:

2: 1:

Name:

Telephone:

Attorney, Name: Name: Firm Suffix: State Name: Name:

Representing Representing Party's

Name: 1:Name: 2:

Served: enter Served: Texas Served: enter Date Served: the Texas

Party's Name:

flbranson@flbranson.com 214-521-5485

the following

214-522-0200 November Frank L. Branson Dallas 4514 Suite The Law

Cole 1800

for Offices

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Branson, Branson,

Frankserved: Zip+4: L.75205

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Ver. 1.0 7/12 Ver. 1.0 7/12