ACCEPTED
03-14-00726-CV
4336477
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/2/2015 3:26:58 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00726-CV
FILED IN
IN THE COURT OF APPEALS FOR THE 3rd AUSTIN,
COURT OF APPEALS
TEXAS
THIRD DISTRICT OF TEXAS
3/2/2015 3:26:58 PM
JEFFREY D. KYLE
Clerk
TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
SAN MARCOS TREATMENT CENTER
Appellant
v.
VERONICA PAYTON
Appellee
On Appeal from Hays County, Texas,
428th Judicial District Court
Trial Court Case Number: 13-2658
APPELLANT’S REPLY BRIEF
Ryan L. Clement
Texas Bar No. 24036371
SERPE JONES ANDREWS
CALLENDER & BELL, PLLC
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Email: rclement@serpejones.com
Attorneys for Appellant,
Texas San Marcos Treatment Center,
L.P. d/b/a San Marcos Treatment Center
ORAL ARGUMENT RESPECTFULLY REQUESTED
TABLE OF CONTENTS
SUMMARY OF REPLY .........................................................................................1
ARGUMENT IN REPLY .......................................................................................2
1. Dr. Reid’s Report Provides No Relevant Facts ........................................... 2
2. Dr. Reid Fails to Identify The Applicable Standards of Care or
Alleged Related Breaches .............................................................................. 6
3. Dr. Reid’s Causation Opinions are Conclusory and Founded on
Speculation....................................................................................................11
CONCLUSION AND PRAYER ...........................................................................14
ii
TABLE OF AUTHORITIES
Cases
American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001) ........................................................................... passim
Austin Heart, P.A. v. Webb,
228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ........................................9, 13
Baylor All Saints Med. Ctr. v. Martin,
340 S.W.3d 529 (Tex. App.—Fort Worth 2011, no pet.) .....................................11
Bowie Mem'l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) .......................................................................... 4, 5, 7, 9
Earle v. Ratliff,
998 S.W.2d 882 (Tex. 1999) ...................................................................................4
Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..........................9
Hebert v. Hopkins,
395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) ................................. 9, 14, 15
Jelinek v. Casas,
328 S.W. 3d 526 (Tex. 2010) ......................................................... 5, 11, 12, 13, 14
Kingwood Pines Hosp., LLC v. Gomez,
362 S.W.3d 740 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ............... 11, 13
Kocurek v. Colby,
No. 03-13-00057-CV, 2014 WL 4179454 –5
(Tex. App.—Austin Aug. 22, 2014, no pet.) ........................................................12
Kuykendall v. Dragun,
No. 11-05-00230-CV, 2006 WL 728068
(Tex. App.—Eastland Mar. 23, 2006, pet. denied) .................................................5
McKenna Mem'l Hosp., Inc. v. Quinney,
No. 03-06-00119-CV, 2006 WL 3246524
(Tex. App.—Austin Nov. 10, 2006, pet. denied)....................................................7
iii
Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave,
300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................14
Russ v. Titus Hosp. Dist.,
128 S.W.3d 332 (Tex. App. – Texarkana 2004, pet. denied) .................................7
Shenoy v. Jean,
No. 01-10-01116-CV, 2011 WL 6938538
(Tex. App.—Houston [1st Dist.] Dec. 29, 2011 .....................................................4
Smith v. Wilson,
368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) ..................... 6, 11, 12, 14, 15
Strom v. Mem'l Hermann Hosp. Sys.,
110 S.W.3d 216 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ...................7
Taylor v. Fossett,
320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...............................................4
Texarkana Nursing & Healthcare Center, LLC v. Lyle,
388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.) ..................................7, 11
W.B.M. Mgmt. Co. v. Flores,
No. 07-14-00008-CV, 2014 WL 1691362 –6
(Tex. App.—Amarillo Apr. 25, 2014, no pet.) .......................................................4
iv
NO. 03-14-00726-CV
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS
TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
SAN MARCOS TREATMENT CENTER
Appellant
v.
VERONICA PAYTON
Appellee
On Appeal from Hays County, Texas,
428th Judicial District Court
Trial Court Case Number: 13-2658
APPELLANT’S REPLY BRIEF
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos
Treatment Center (“San Marcos Treatment Center” or “Appellant”) files this Reply
Brief, and in support thereof, would respectfully show the Court the following:
SUMMARY OF REPLY
Dr. Reid’s report contains no relevant factual information. Instead, Dr.
Reid’s report relies on vague statements, generalizations, inferences and also
speculation to address the required statutory elements of an expert report under
Chapter 74. Dr. Reid’s opinions are conclusory, as evidenced by his express
acknowledgement that he lacks specific factual information central to his opinions
and his reliance on vague statements, generalizations, inferences and speculation to
support his conclusions.
Consequently, Dr. Reid’s report does not satisfy the requirements under
Chapter 74 or the standards established by Palacios and its progeny because the
report fails to provide enough information to fulfill the two purposes of an expert
report under the statute as it fails to inform San Marcos Treatment Center of the
specific conduct called into question and also failed to provide the trial court with a
basis to conclude that the claims have merit.
ARGUMENT IN REPLY
1. Dr. Reid’s Report Provides No Relevant Facts
On page 5 of Dr. Reid’s report, a “brief narrative” is supplied. This
paragraph discusses the “facts” upon which Dr. Reid’s various opinions concerning
the applicable standards of care and alleged breaches rest. The only “facts”
provided by Dr. Reid in his report concerning events preceding the assault are as
follows:
At the time of the assault, Veronica Payton (victim) was an aide on
the boys’ unit (patients apparently about 11 years old and up) of San
Marcos Treatment Center (SMTC). Leroy Simon (assailant) was a 17
year-old, “stocky” male patient with a long history of assaultive
behavior, sex offenses, fights, borderline intellectual function or mild
mental retardation, and chronic symptoms of intermittent explosive
2
disorder, lack of impulse control, oppositional defiance disorder, and
other mental and behavioral problems, most of all of which were
known to SMTC prior to January 2, 2012. Mr. Simon was housed on
the boys’ unit to which Ms. Payton was assigned.
During the evening of January 2, 2012, Mr. Simon asked to be
escorted off the unit to do his laundry. There were two staff, both
female, assigned to the boys’ unit at the time, including Ms. Payton.
Ms. Payton agreed to accompany him to the functioning laundry, and
did so.
(CR 36).
Dr. Reid provides no additional facts concerning the events leading up to the
assault in his report. Dr. Reid provides no facts concerning the facility’s staffing
requirements or the patient-to-staff ratio. Dr. Reid provides no facts concerning
the education, training, or instruction provided to the facility’s staff in general, or
Ms. Payton specifically. Dr. Reid provides no facts concerning the information or
notification provided to staff concerning the patient’s past mental health history.
Dr. Reid provides no facts concerning the process of the patient’s admission to the
facility and/or his placement on the unit. Dr. Reid provides no facts concerning the
care and treatment ordered for this patient (i.e. the observation level and/or any
limitations or restrictions) by his admitting physician. Dr. Reid provides no facts
concerning the patient’s admission and care while at San Marcos Treatment Center
and his interactions with patients and/or staff aside from the assault alone. In the
absence of any relevant facts, Dr. Reid, nonetheless, offers opinions as to the
3
standards of care and alleged breaches with regard to all the aforementioned
subject matters.
An expert, however, must explain the basis for his statements to link his
conclusions to the facts and not merely state conclusions. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999)).
Appellate courts recognize that an expert’s failure to provide any facts in the
report to support his or her conclusions on standard of care, breach, and causation
prevents the trial court from concluding the plaintiff’s claims have merit. See
Taylor v. Fossett, 320 S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding
trial court abused its discretion in denying physician’s motion to dismiss since
expert report provided only conclusory opinions without supporting facts); W.B.M.
Mgmt. Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—
Amarillo Apr. 25, 2014, no pet.) (holding that expert report was not a good faith
effort to provide a fair summary of his opinions and warranted dismissal since
expert failed to provide facts to support his conclusion); Shenoy v. Jean, No. 01-
10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,
2011, pet. denied) (holding that “an expert report that merely asserts that a
defendant physician’s breach caused the plaintiff’s injury without providing a
4
factual basis does not provide the trial court with the information necessary to
evaluate the merits of the plaintiff’s claim.”).
The failure to set forth facts supporting an expert’s opinions on the standard
of care, breach, and causation is not an argument based on “semantics.”
Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—
Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining
whether the plaintiff’s claims have merit. Id.
As the Texas Supreme Court held in Jelinek v. Casas, 328 S.W. 3d 526
(Tex. 2010), when the report in question lacks any explanation linking the expert’s
conclusion to the relevant facts, the trial court abuses its discretion in denying the
defendant’s motion to dismiss. Id. at 540 (citing Bowie Mem’l, 79 S.W.3d at 52).
Appellee’s attempts to draw comparisons between the sufficiency of Dr.
Reid’s report and those provided in other cases fall short. See Appellee’s Brief at
36-38. The primary distinction is that there were relevant facts provided in the
other reports resulting in adequate specificity. However, the report of Dr. Reid
fails to provide any relevant facts or the requisite specificity.
Because Dr. Reid’s report fails to provide any relevant facts, the opinions
are purely conclusory and the report does not represent a good faith effort. If an
expert report contains only conclusions about the statutory elements in section
74.351, the trial court has “no discretion but to conclude ... that the report does not
5
represent a good-faith effort” to satisfy the statute. Smith v. Wilson, 368 S.W.3d
574, 577 (Tex. App.—Austin 2012, no pet.) (citing American Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877, 880 (Tex. 2001)).
The trial court abused its discretion in holding that Dr. Reid’s report was
adequate and in denying San Marcos Treatment Center’s motion to dismiss under
Chapter 74 because Dr. Reid’s report fails to link relevant facts to his conclusions
on any of the required elements of a Chapter 74 expert report.
2. Dr. Reid Fails to Identify The Applicable Standards of Care or Alleged
Related Breaches
On page 1 of his report, under the heading “Duties, Standards and Breaches
Thereof”, Dr. Reid offers the following conclusory opinions concerning the
applicable standards of care:
That employer (SMTC), by itself and through its various parts or
assigns, had duties to its unit employee Ms. Payton, which included,
but may not have been limited to, (a) adequate staffing and staff
support in her work environment (sufficient to meet reasonable levels
of staff safety, as well as patient safety and care), (b) adequate
training with regard to recognizing and managing situations that
might arise in which her safety could be compromised, (c) adequate
notification of work situations or persons in her work environment
that could reasonably present a danger to her or others, (d) adequate
care in avoiding or declining admission of patients/clients who are
inappropriate for the unit on which she worked, and (e) elimination or
amelioration of reasonably known risks to her and other staff or
patients created by patients/clients who are admitted to and housed on
the unit on which she worked.
(CR 32-33).
6
As this Court is aware, whether a defendant healthcare provider breached its
duty cannot be determined absent specific information about what the defendant
should have done differently. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341-42
(Tex. App. – Texarkana 2004, pet. denied) (quoting Palacios, 46 S.W.3d at 880)).
In other words, one must be able to determine from the report what was required
by the standard of care, which requires “specific information about what the
defendant should have done differently”. Texarkana Nursing & Healthcare
Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.)
(quoting Palacios, 46 S.W.3d at 880)). Identifying the standard of care is critical
because whether a defendant breached its duty cannot be determined absent
specific information about what the defendant should have done differently.
McKenna Mem'l Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524,
*4 (Tex. App.—Austin Nov. 10, 2006, pet. denied) (mem. op.) (citing to Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curium); Russ, 128
S.W.3d at 343). Moreover, the standard of care is defined by what an ordinarily
prudent health-care provider would have done under the same or similar
circumstances. See id. (citing to Palacios, 46 S.W.3d at 880; Strom v. Mem'l
Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied)).
7
Dr. Reid’s opinions concerning the standards of care provide nothing more
than vague, generalized statements that are wholly reliant on inferences because
they are devoid of any factual information and lack the specificity required under
the statute. In summary, Dr. Reid’s opinions provide no information as to what the
standard of care applicable to San Marcos Treatment Center is in this context and
under the facts.
Using the first standard of care expressed by Dr. Reid as an example (though
the others are equally as deficient), Dr. Reid opines that San Marcos Treatment
Center had a duty to provide “adequate staffing and staff support” and “failed to
provide adequate staffing to meet the foreseeable needs for patient care and staff
and patient safety.” (CR 32-33). However, Dr. Reid also openly acknowledges in
his report that, “Specific staffing data from SMTC is not yet available to me.” (CR
33). Thus, his statement as to the standard of care for adequate staffing is without
any factual support and, therefore, because his conclusions are not linked to any
relevant facts his opinion as to this standard of care is purely conclusory. All of
Dr. Reid’s opinions concerning the standards of care and breach suffer from the
same failure to link any relevant factual information to the opinions expressed or
provide sufficient specificity as to the specific conduct called into question.
Because there is no link to any relevant factual information, all of the Dr. Reid’s
opinions concerning the standards of care are expressed in vague, general terms
8
and lack the specificity required by the statute. None of the standards of care
and/or alleged breaches offered by Dr. Reid are sufficiently tied to any facts or
provide any information beyond vague, general statements and, therefore, Appellee
has failed to provide an adequate expert report supportive of any of her legal
theories.
In so far as Dr. Reid makes any attempt to link any “facts” to his
conclusions, Dr. Reid merely refers to materials listed under “Sources Reviewed
and/or Relied Upon.” (CR 37-38). However, those materials are neither described
within his report nor are they attached and incorporated. Thus, Dr. Reid’s opinions
rely repeatedly on inferences as to the contents of those materials cited and
whether or not support they support his conclusions. The only information
relevant to determining whether a report complies with the statute is “within the
four corners of the document.” Palacios, 46 S.W.3d at 878. This requirement
precludes a court from filling gaps in a report by drawing inferences or guessing as
to what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228
S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (citing Bowie Mem’l, 79
S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—
Houston [1st Dist.] 2006, no pet.)). This Court declared, “neither the trial court nor
this Court may infer additional opinions or underlying facts to fill in gaps that the
report itself leaves open.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—
9
Austin 2013, no pet.). Because Dr. Reid provides no relevant facts, his report is
fatally reliant on inferences for any support and naturally requires that gaps be
filled in to complete and support his conclusions. However, Dr. Reid’s report’s
reliance on inference is impermissible under the statute and the interpretive legal
precedent.
Appellee misunderstands that purpose for which Appellant referred to
materials outside the four corners of the report. See Appellee’s Brief at 25. The
materials referenced were not provided for this Court’s consideration of their
substance or contents, but rather, to provide a description of available materials in
Ms. Payton’s personnel file as an illustration of Dr. Reid’s reliance on inference
because he fails to describe or detail what particular contents he reviewed in her
personnel file, what materials he anticipated finding in her personnel file, and how
the absence of specifically described items support his opinions. Dr. Reid offers
no such description but, instead, merely offers:
Review of Ms. Payton’s SMTC personnel file and relevant portions of
the SMTC Employee Handbook reveals no indication that Ms. Payton
received any SMTC training regarding her safety in the workplace,
and particularly none related to recognizing potentially dangerous
patients, recognizing potentially assaultive patients, or protection
herself from patient assault.
(CR 33).
Dr. Reid’s vague statement, which lacks any factual reference to specific
materials (present or absent), naturally required the trial court to infer as to the
10
materials that should be present but were not found and to then fill in the gap by
making assumptions.
Dr. Reid’s vague, generalized statements concerning the standards of care
(without any reference to relevant facts) are similar to those found in other reports
served in assault cases where similar reports were likewise found to be deficient.
E.g. Lyle, 388 S.W.3d 314; Baylor All Saints Med. Ctr. v. Martin, 340 S.W.3d 529
(Tex. App.—Fort Worth 2011, no pet.); Kingwood Pines Hospital, LLC, v. Gomez,
362 S.W.3d 740 (Tex. App.––Houston [14th Dist.] 2011, no pet.).
Dr. Reid’s report fails to identify the applicable standards of care in
connection with any factual information or discuss any related alleged breaches
but, instead, relies on vague, general statements and inferences to reach purely
conclusory opinions as to these required elements.
3. Dr. Reid’s Causation Opinions Are Conclusory and Founded on
Speculation
As this Court recently noted in Smith v. Wilson, an expert must explain, with
supporting facts, how the defendant’s alleged breach in the standard of care caused
the injury in question. Smith, 368 S.W.3d at 577–78. A conclusory statement on
causation is wholly insufficient. Id.
Further, as the Supreme Court has recognized, “[a]n expert cannot simply
opine that the breach caused the injury. … Instead, the expert must go further and
explain, to a reasonable degree, how and why the breach caused the injury based
11
on the facts presented.” Jelinek, 328 S.W.3d at 539–40. (emphasis added).
Without this explanation, the trial court cannot conclude the claims have merit. Id.;
see also Smith, 368 S.W.3d at 578 (Austin Court reversing trial court’s denial of
motion to dismiss after finding report failed to provide facts explaining the causal
link between alleged breach and the occurrence or injury); Kocurek v. Colby, No.
03-13-00057-CV, 2014 WL 4179454, *4–5 (Tex. App.—Austin Aug. 22, 2014, no
pet.).
This Court has also stated that an expert report must explain how taking the
suggested measures would have prevented the particular injuries complained of.
Smith, 368 S.W.3d at 577-578.
Appellee’s reliance on UHS of Timberlawn, Inc. is misapplied. See
Appellee’s Brief at 34-36. While assault may not be a medical condition, this does
not eliminate the required element of causation and how that element must be
sufficiently addressed within an expert report served pursuant to Chapter 74. As
discussed later in Appellee’s Brief, causation remains a required element in an
expert report in assault cases. See id. at 35-36. However, Dr. Reid’s report fails to
adequately address causation.
Concerning causation, Dr. Reid opines, “But for one or more of the breaches
by SMTC, summarized in items 2-6, it is more likely than not that the January 2,
2012, assault would not have occurred, and thus the above damages to Ms. Payton,
12
would not have occurred.” (CR 035). However, Dr. Reid’s causation opinion is
purely conclusory because it fails to explain how and why the alleged failures by
San Marcos Treatment Center resulted in the assault. Kingwood Pines Hosp., LLC,
362 S.W.3d at 750. In short, Dr. Reid’s conclusions as to causation amount to
nothing more than an ipse dixit, which the Supreme Court has consistently
criticized. Jelinek, 328 S.W. 3d at 539.
Dr. Reid’s report offers no explanation, with supporting facts, how San
Marcos Treatment Center’s alleged breach (of an unidentified standard of care)
caused Ms. Payton’s injuries, or for that matter, caused her to decide to go to the
laundry room with the patient alone. Dr. Reid offers nothing more than
speculation and conjecture in his report to support his conclusions as to causation.
In short, Dr. Reid opines that Ms. Payton would not have escorted the patient alone
on that occasion. (CR 35). In support of this speculative opinion, Dr. Reid refers
to a statement by Ms. Payton. However, the statement is never described within
his report and is also not attached is support of his opinion. This again
demonstrates Dr. Reid’s reliance on inference, which this Court has correctly noted
is specifically precluded. Austin Heart, P.A., 228 S.W.3d at 279. Additionally, it
is also pure speculation and conjecture for Dr. Reid to opine as to the state of mind
of Ms. Payton on January 2, 2012 and what she would or would not have done in
relation to this patient under varying scenarios.
13
Conclusory (and speculative) statements on causation, like those offered in
Dr. Reid’s report, will not satisfy Chapter 74’s expert report requirements. See
Palacios, 46 S.W.3d at 875; Regent Care Ctr. of San Antonio II, Ltd. P'ship v.
Hargrave, 300 S.W.3d 343, 346 (Tex. App.—San Antonio 2009, pet. denied).
Since Dr. Reid only offered conclusory opinions concerning the statutory elements
required of an expert report, the trial court had “no discretion but to conclude ...
that the report does not represent a good-faith effort” to satisfy the statute. Smith,
368 S.W.3d at 577. The trial court’s ruling amounted to an abuse of discretion. Id.
CONCLUSION & PRAYER
To constitute a good faith effort, the report must, at a minimum: (1) inform
the defendant of the specific conduct called into question; and (2) provide a basis
for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879.
“A report that merely states the expert’s conclusions about the standard or care,
breach, and causation does not fulfill the two purposes of a good-faith effort.”
Hebert, 395 S.W.3d at 890 (quoting Jelinek, 328 S.W.3d at 539).
Because Dr. Reid provides absolutely no facts to support his conclusions on
the applicable standard of care, breach, and causation he also fails to inform San
Marcos Treatment Center of the specific conduct called into question. Similarly,
because Dr. Reid fails to link his conclusions on the applicable standard of care,
breach, and causation to any relevant facts, but instead relies on vague, general
14
statements, inferences and speculation, his report also fails to provide a basis for
the trial court to conclude the claims have merit. As such, the trial court abused its
discretion in finding the report was sufficient. See Smith, 368 S.W.3d at 577.1 As a
result, San Marcos Treatment Center requests that the Court reverse the trial
court’s order.
WHEREFORE, PREMISES CONSIDERED, San Marcos Treatment Center
respectfully requests that this Court reverse the trial court’s order denying
Appellant’s Chapter 74 Motion to Dismiss and remand to the trial court with an
order that all claims and causes of action asserted by Appellee against San Marcos
Treatment Center be dismissed with prejudice and that San Marcos Treatment
Center be awarded its reasonably attorneys’ fees and costs as allowed by Chapter
74 of the Texas Civil Practices and Remedies Code. San Marcos Treatment Center
further prays for such other relief that it may be justly entitled.
1
Also, without the relevant facts, the trial court either misapplied the law regarding the
sufficiency of expert report or inferred additional underlying facts to fill in gaps that the report
itself left open. This amounts to an abuse of discretion. See Hebert, 395 S.W.3d at 890.
15
Respectfully submitted,
SERPE, JONES, ANDREWS,
CALLENDER & BELL, PLLC
By: /s/ Ryan L. Clement
Ryan L. Clement
Texas Bar No. 24036371
rclement@serpejones.com
America Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Attorneys for Appellant,
Texas San Marcos Treatment Center,
L.P. d/b/a San Marcos Treatment Center
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Reply Brief for Appellant is computer
generated, has been prepared in a conventional typeface no smaller than 14-point
for text and 12-point for footnotes, contains 3,405 words according to word count
function of the computer program used to prepare this Reply Brief, excluding any
parts exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas
Rule of Appellate Procedure 9.4.
/s/ Ryan L. Clement
Ryan L. Clement
16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all known counsel of record in accordance with
the Texas Rules of Appellate Procedure on this the 2nd day of March, 2015.
Adam S. Ward
Aaron Allison
Keely Allison Ward
Allison & Ward
2001 N. Lamar Blvd.
Austin, Texas 78705-4907
/s/ Ryan L. Clement
Ryan L. Clement
17