McAllen Hospitals, L.P., McAllen Hospitals, L.P. D/B/A McAllen Medical Center, McAllen Medical Center, McAllen Hospitals, L.P. D/B/A South Texas Health System and South Texas Health System v. Mario I. Rodriguez and Liduvina Iracheta, Individually and as Next Friends of XXXX, a Minor

ACCEPTED
13-15-00362-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/22/2015 1:05:53 PM
Dorian E. Ramirez
CLERK

NO. 13-15-00362-CV
FILED IN
IN THE THIRTEENTH COURT OF APPEALS
13th COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS CHRISTI/EDINBURG, TEXAS
CORPUS
12/22/2015 1:05:53 PM
DORIAN E. RAMIREZ
MCALLEN HOSPITALS, L.P., MCALLEN HOSPITALS, L.P.
ClerkD/B/A
MCALLEN MEDICAL CENTER, MCALLEN MEDICAL CENTER,
MCALLEN HOSPITALS, L.P. D/B/A SOUTH TEXAS HEALTH SYSTEM
AND SOUTH TEXAS HEALTH SYSTEM,
Defendants – Appellants,
v.
MARIO RODRIGUEZ AND LUDIVINA IRACHETA, INDIVIDUALLY
AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR,
Plaintiffs – Appellees.

On Appeal from the 389th District Court, Hidalgo County, Texas
Trial Court Cause No. C-2334-12-H

BRIEF OF APPELLEES

MITHOFF LAW BECK REDDEN LLP
Richard Warren Mithoff Russell S. Post
State Bar No. 14228500 State Bar No. 00797258
rmithoff@mithofflaw.com rpost@beckredden.com
Joseph R. Alexander, Jr. Patrice B. Childress
State Bar No. 00995150 State Bar No. 24059569
jalexander@mithofflaw.com pchildress@beckredden.com
Warner Hocker Kyle Lawrence
State Bar No. 24074422 State Bar No. 24087895
whocker@mithofflaw.com klawrence@beckredden.com
500 Dallas, Suite 3450 1221 McKinney, Suite 4500
Houston, TX 77002 Houston, TX 77010-2010
(713) 654-1122 (713) 951-3700
(713) 739-8085 (Fax) (713) 951-3720 (Fax)
Counsel for Plaintiffs – Appellees

Oral Argument Not Requested
 IDENTITY OF PARTIES AND COUNSEL
In addition to the counsel listed in Appellant’s Brief, please note the
appearance of the following additional counsel for Appellees Mario Rodriguez and
Ludivina Iracheta, Individually and as Next Friends of Xxxxx Xxxxxxxxx, A
Minor:

Kyle Lawrence
State Bar No. 24087895
klawrence@beckredden.com
BECK REDDEN LLP
1221 McKinney, Suite 4500
Houston, TX 77010-2010
(713) 951-3700
(713) 951-3720 (Fax)
 TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL..................................................................i
TABLE OF CONTENTS ........................................................................................ ii
INDEX OF AUTHORITIES ..................................................................................... v
STATEMENT OF THE CASE ..................................................................................v
STATEMENT REGARDING ORAL ARGUMENT ....................................................ix
ISSUES PRESENTED............................................................................................. x
INTRODUCTION...................................................................................................1
STATEMENT OF FACTS ....................................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................15
STANDARD OF REVIEW: ABUSE OF DISCRETION .............................................16
ARGUMENT AND AUTHORITIES ........................................................................17
I. MMC waived its appeal by failing to challenge all grounds that
support the trial court’s ruling. ...................................................................... 17
A. On appeal, MMC argues only that it was not timely served
with expert reports. .............................................................................. 18

B. Plaintiffs asserted another ground to deny the motion to
dismiss, which MMC fails to challenge on appeal. ............................ 18

C. The Court should affirm the trial court’s ruling based on the
unchallenged ground. .......................................................................... 19
II. The trial court correctly found that MMC waived any objection to
the timeliness of service. ............................................................................... 19

A. Chapter 74 rights can be waived. ........................................................ 20

B. MMC’s affirmative representations and subsequent silence
each support a finding of waiver. ........................................................ 20
ii
III. Plaintiffs satisfied Section 74.351 by serving the expert reports on
counsel authorized to accept them on behalf of MMC. ................................ 23

A. Gonzalez and Castillo were granted express authority to act
as counsel for MMC for purposes of accepting the expert
reports. ................................................................................................. 23
1. The insurer, JUA, had the right to choose counsel and
control the defense on behalf of MMC. .................................... 23
2. JUA engaged Castillo and Gonzalez on behalf of
MMC and authorized them to accept service of
Chapter 74 reports. .................................................................... 24

3. An enforceable Rule 11 agreement allowed Plaintiffs
to serve the reports on Gonzalez and Castillo........................... 25

B. MMC’s last-ditch arguments are unavailing. ...................................... 25
1. The manner of service is immaterial in this case. ..................... 26
2. There was no “attorney in charge” to be served and
the parties agreed to an alternative form of service. ................. 26

3. MMC’s other arguments are irrelevant. .................................... 28

C. MMC’s evidentiary objections are unpreserved and
insubstantial. ........................................................................................ 28
1. Any evidentiary complaint has been waived by
inadequate preservation and inadequate briefing. .................... 29

2. The authenticity objection was invalid. .................................... 30
3. The hearsay objection was invalid. ........................................... 30

4. MMC has not demonstrated that any error was
harmful. ..................................................................................... 31

CONCLUSION AND PRAYER FOR RELIEF ........................................................... 32
CERTIFICATE OF SERVICE ................................................................................34
CERTIFICATE OF COMPLIANCE .........................................................................35

iii
APPENDIX
Order denying MMC’s Motion to Dismiss (CR 402) ............................ TAB A

DX 11 (3 RR 136)................................................................................... TAB B

Email from PX2 (3 RR 40) ..................................................................... TAB C
PX8 (3 RR 74-75) ................................................................................... TAB D

Email from PX2 (3 RR 45) ......................................................................TAB E

PX1 (3 RR 6-7) ........................................................................................ TAB F

Excerpts of Steve Gonzalez Testimony (2 RR 43-44, 52, 57-58,
76-77) ...................................................................................................... TAB G

iv
 INDEX OF AUTHORITIES
CASE PAGE(S)

Am. Transitional Care Ctrs. v. Palacios
46 S.W.3d 873 (Tex. 2001)................................................................................. 16

Britton v. Texas Dep’t of Criminal Justice
95 S.W.3d 676 (Tex. App.—Houston
[1st Dist.] 2002, no pet.) ..................................................................................... 17
Columbia Rio Grande Regional Hosp. v. Stover
17 S.W.3d 387 (Tex. App.—Corpus Christi
2000, no pet.) ...................................................................................................... 29
Daniels v. Yancey
175 S.W.3d 889 (Tex. App.—Texarkana
2005, no pet.) ...................................................................................................... 31
In re Elamex, S.A. de C.V.
367 S.W.3d 879 (Tex. App.—El Paso
2012, no pet.) ................................................................................................17, 19

Excel Corp. v. Porras
14 S.W.3d 307 (Tex. App.—Corpus Christi
1999, pet. denied)................................................................................................ 30

Fulp v. Miller
286 S.W.3d 501 (Tex. App.—Corpus Christi
2009, no pet.) ..........................................................................................16, 26, 27
Goforth v. Bradshaw
296 S.W.3d 849 (Tex. App.—Texarkana
2009, no pet.) ...................................................................................................... 26

Gonzalez v. Villarreal
251 S.W.3d 763 (Tex. App.—Corpus Christi
2008, pet. denied)................................................................................................ 29

Inscore v. Karnes County Sav. & Loan Ass’n
787 S.W.2d 183 (Tex. App.—Corpus Christi
1990, no writ) ...................................................................................................... 17

v
Jernigan v. Langley
111 S.W.3d 153 (Tex. 2003) .............................................................................. 20

In re M.S.
115 S.W.3d 534 (Tex. 2013) .............................................................................. 31

Memorial Hermann Hosp. Sys. v. Hayden
No. 01-13-00154-CV, 2014 WL 2767128
(Tex. App.—Houston [1st Dist.] Jun. 17, 2014,
pet. denied) (mem. op.) ....................................................................................... 22

Motor Vehicle Bd. v. El Paso Indep.
Auto Dealers Ass’n, Inc.
1 S.W.3d 108 (Tex. 1999)................................................................................... 20
Northeast Texas Staffing v. Ray
330 S.W.3d 1 (Tex. App.—Texarkana
2010, no pet.) ...................................................................................................... 26
Northern County Mut. Ins. Co. v. Davalos
140 S.W.3d 685 (Tex. 2004) .............................................................................. 23
Offenbach v. Stockton
285 S.W.3d 517 (Tex. App.—Dallas
2009), aff’d, 336 S.W.3d 610 (Tex. 2011) ......................................................... 28
Rosemond v. Al-Lahiq
331 S.W.3d 764 (Tex. 2011) .............................................................................. 16
In re Sheppard
197 S.W.3d 798 (Tex. App.—El Paso
2006, orig. proceeding) ....................................................................................... 22

Spiegel v. Strother
262 S.W.3d 481 (Tex. App.—Beaumont
2008, no pet.) ...................................................................................................... 26

State Farm Mut. Auto Ins. Co. v. Traver
980 S.W.2d 625 (Tex. 1998) .............................................................................. 23

In re TCW Global Project Fund II, Ltd.
274 S.W.3d 166 (Tex. App.—Houston
[14th Dist.] 2008, orig. proceeding) ................................................................... 19

vi
Tenneco, Inc. v. Enterprise Prods. Co.
925 S.W.2d 640 (Tex. 1996) .............................................................................. 22

Tex. Dep’t of Transp. v. Able
35 S.W.3d 608 (Tex. 2000)................................................................................. 31

U.S. Lawns, Inc. v. Castillo
347 S.W.3d 844 (Tex. App.—Corpus Christi
2011, pet. denied)..........................................................................................17, 19
Uduma v. Wagner
No. 01-12-00796-CV, 2014 WL 4259886
(Tex. App.—Houston [1st Dist.] Aug. 27, 2014,
pet. denied) (mem. op.) ....................................................................................... 21
Ulico Cas. Co. v. Allied Pilots Ass’n
262 S.W.3d 773 (Tex. 2008) .............................................................................. 20
Walker v. Gutierrez
111 S.W.3d 56 (Tex. 2003)................................................................................. 16

RULES
Tex. R. App. P.
Rule 33.1(a)...................................................................................................26, 29
Rule 38.1 ............................................................................................................. 29
Rule 38.3 .......................................................................................................18, 19
Rule 44.1(a)......................................................................................................... 31

Tex. R. Civ. P. 11 ..................................................................................................... 25

Tex. R. Evid.
Rule 801(e)(1)(B) ............................................................................................... 31
Rule 801(e)(2)(D) ............................................................................................... 30
Rule 803(1) ......................................................................................................... 31
Rule 901 .............................................................................................................. 30

vii
 STATEMENT OF THE CASE
Nature of the Case: Health-care liability case involving permanent injury
to a brain-damaged child. CR 80-88.

Trial Court: 389th District Court, Hidalgo County (Lopez, J.)

Course of Proceedings: Plaintiffs originally sued individual physicians and
later added McAllen Medical Center as a defendant
(“MMC”). MMC’s insurer, JUA, engaged counsel
to seek an agreement extending its answer deadline.
Plaintiffs agreed. CR 30; 3 RR 33 (PX 2).

Plaintiffs then requested a reciprocal agreement that
Chapter 74 reports could be served on the counsel
who had negotiated the extension of the answer date.
PX 7. JUA authorized counsel to accept service,
PX 2, DX 11, and counsel on both sides entered into
a Rule 11 agreement to that effect. CR 264.

Subsequent to these events, new counsel appeared
and filed an answer on behalf of MMC. CR 208-10.
New counsel initially raised an objection based on
the timeliness of service of the Chapter 74 reports,
CR 211-18, but withdrew that objection once he was
apprised of the Rule 11 agreement.

For 18 months, the case proceeded with discovery.
But on the eve of trial, MMC moved to dismiss on
the ground that the Chapter 74 reports had not been
served timely—denying the Rule 11 agreement
between Plaintiffs and prior counsel. CR 249-54.

In an extraordinary hearing, prior counsel for MMC
testified that he had been authorized to enter into the
Rule 11 agreement and offered documentary proof.
2 RR 43-44, 51-52, 57-58; PX 2.

Trial Court Disposition: The trial court denied MMC’s motion to dismiss.
CR 402 (Tab A). But MMC took advantage of its
interlocutory appeal and invoked the automatic stay
of trial. CR 403-07.
viii
 STATEMENT REGARDING ORAL ARGUMENT
Given the straightforward and dispositive waiver issues in this appeal,

coupled with the compelling record evidence supporting the trial court’s ruling,

Plaintiffs-Appellees do not believe oral argument is necessary. But if the Court

believes argument would be helpful, we welcome the opportunity to participate.

ix
 ISSUES PRESENTED
1. Should the order be affirmed because MMC failed to challenge
all independent grounds to support the trial court’s order?

2. If not, did the trial court abuse its discretion by finding that
MMC waived any objection to the timeliness of the Chapter 74
expert reports?

3. If not, did the trial court abuse its discretion by finding that
Plaintiffs served MMC’s attorney with the Chapter 74 reports
within the 120-day deadline, pursuant to a Rule 11 agreement?

x
 INTRODUCTION
I am passionately proud of my profession. Therefore, “My word is my bond.”
***
I will always be conscious of my duty to the judicial system.
***
I will advise my client that we will not pursue tactics which are intended primarily for delay.
***
I will advise my client that we will not pursue any course of action which is without merit.
***
A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation,
courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.
THE TEXAS LAWYER’S CREED: A MANDATE FOR PROFESSIONALISM
(Nov. 7, 1989)

This is a tale of two lawyers. One regarded the obligations set forth in the

Texas Lawyer’s Creed as articles of faith, and risked a great deal to uphold them.

The other regarded those obligations as mere obstacles to be overcome.

The first lawyer was authorized to act on behalf of a defendant and entered

into a Rule 11 agreement with opposing counsel. When that lawyer was replaced,

the second lawyer tried to renounce the agreement, then honored it for 18 months,

then reneged on it again just days before trial in order to secure an automatic stay.

It is difficult to image a more craven abuse of the statute requiring expert reports in

health-care liability cases.

Our legal system simply cannot function, and our courts cannot do justice,

unless the word of a lawyer can be trusted. This appeal tests that principle.
 STATEMENT OF FACTS
In 2011, a 21-month-old boy was injured when struck by a motor vehicle.

While he was in the care of doctors and nurses at McAllen Medical Center

(“MMC”), the child’s condition began to deteriorate. The nurses noted the

downward progression of his condition, but no one provided medical intervention

to halt the downward spiral. CR 80-85.

Today, that little boy is permanently brain-damaged and completely blind.

He depends entirely on his parents and others for all the basic necessities of life—

including feeding by tube, bathing, dressing, mobility, hygiene, and all bowel and

bladder management. CR 85-87.

MMC has no interest in those facts, nor does it have any interest in the facts

surrounding the real history of this litigation. Its “Statement of Facts” is simply a

barren procedural timeline, which aims to create the false impression that this case

involves a run-of-the-mill failure to serve Chapter 74 expert reports on time.

Nothing could be further from the truth. This case involves a stunning effort

to renege on a Rule 11 agreement on the eve of trial in order to deny the little boy

and his family their day in court (not to mention the financial resources they need).

This Statement of Facts will recount the course of the litigation, the agreements

between Plaintiffs and MMC’s counsel, MMC’s effort to renege on its agreements,

and the hearing on MMC’s motion to dismiss where the truth came to light.

2
 Prior counsel accepts Chapter 74 reports on behalf of MMC

Plaintiffs filed suit in August 2012, alleging negligence claims against

various health-care providers. Their original petition named several defendants,

including RGV Pediatric Care, P.A. (RGV), but did not name MMC. CR 30-32.

McAllen attorneys Steve Gonzalez and Edward Castillo of Gonzalez Castillo, LLP

answered for RGV; a year later, they moved for summary judgment. DX 11.

Around that same time, in August 2013, Plaintiffs filed an amended petition

and added MMC as a defendant. CR 80-83.

Because Gonzalez had a long history of representing MMC, it was expected

that he would appear for MMC if the pending claims against his other client, RGV,

were dismissed on summary judgment. 2 RR 45-46, 51-52; 3 RR 10-12 (PX 2).

To that end, MMC’s insurance carrier, Joint Underwriters Association (“JUA”),

instructed Gonzalez Castillo to obtain a Rule 11 Agreement extending the answer

deadline for MMC until after a ruling on the RGV summary judgment motion:

See 3 RR 33 (PX 2); see also id. at 34-35 (PX 2), 135-36 (DX 11).
3
 Consistent with these marching orders, Castillo wrote to Plaintiffs’ counsel

Joe Alexander of the Mithoff Law Firm on September 3, 2013:

The hospital has asked us to secure a Rule 11 agreement regarding the
answer date for the hospital defendants. Attached please find a Rule
11 reflecting the agreement.
3 RR 68 (PX 5); see also 2 RR 82.

Plaintiffs agreed to extend the answer deadline and both parties executed the

Rule 11 Agreement attached to Castillo’s e-mail. That agreement provided that the

answer deadline would be extended until two weeks after the trial court ruled on

RGV’s summary judgment motion:

3 RR 70 (PX 6).

4
 A month later, Plaintiffs’ counsel e-mailed Castillo and Gonzalez to confirm

that they had authority to accept service of the Chapter 74 expert reports on behalf

of MMC. He wrote:

Castillo replied promptly (communicating through his secretary, Annette Word)1

and promised to request such authority:

3 RR 72 (PX 7).

As promised, Castillo immediately wrote to JUA to determine whether the

insurance carrier wanted Gonzalez Castillo to accept the Chapter 74 expert reports

on behalf of MMC:

1
Several of the e-mails involved in this case were sent by Annette Word, Gonzalez and Castillo’s legal assistant,
who routinely drafted and sent correspondence for Gonzalez and Castillo. See 2 RR 91-92.
5
3 RR 39 (PX 2). The very next day, “MMC’s insurance carrier, JUA, instructed

[Castillo] to advise Plaintiffs’ counsel that Gonzalez Castillo, LLP was authorized

to accept service of Plaintiffs’ Chapter 74 expert reports as to MMC.” 3 RR 136

(DX 11) (Tab B); see also 2 RR 108-09 (admitting affidavit testimony).

Castillo acknowledged these instructions in an email on October 10, 2013,

which was admitted during the evidentiary hearing:

3 RR 40 (PX 2) (Tab C).

6
 Castillo then told Plaintiffs’ counsel “we can accept service of Plaintiffs’

Chapter 74 reports as they pertain to the hospital entities.” 3 RR 43 (PX 2).

The next day, on October 11, 2013, Plaintiffs served Gonzalez Castillo with

the Chapter 74 expert reports. Plaintiffs’ counsel and Gonzalez Castillo executed a

Rule 11 Agreement confirming Gonzalez Castillo’s authority to accept the reports,

as well as their actual receipt of the reports. The agreement stated:

This will confirm that you [attorneys Gonzalez and Castillo]
have been authorized by [MMC] to accept service of the above expert
reports and curricula vitae from Plaintiffs . . . as required by Civil
Practice and Remedies Code Section 74.351.

This will also acknowledge and confirm that these reports and
curricula vitae have been received by you on behalf of [MMC] and
that such receipt by you constitutes proper service on such entities as
required by Civil Practice and Remedies Code Section 74.351.

Please acknowledge that you have been authorized to accept
service of these reports and curricula vitae on behalf of [MMC] by
signing below and returning to the undersigned.

3 RR 74-75 (PX 8) (Tab D).

Current counsel enters an appearance for MMC, objects to the expert reports,
then withdraws his objection under instructions from JUA

By December 2013, there was no ruling on the summary judgment motion.

Mindful of the grave medical condition of their young client, Plaintiffs’ counsel

advised Gonzalez Castillo that it would be necessary for MMC to file an answer.

3 RR 80 (PX 10). Because Gonzalez Castillo could not appear on behalf of MMC,

attorney Ron Hole was retained to represent MMC going forward. CR 208-10.

7
 On January 2, 2014, Hole filed his answer on behalf of MMC. CR 208-10.

Two weeks later, Plaintiffs’ counsel sent him courtesy copies of the expert reports,

along with a copy of the “executed letter agreement wherein Mr. Edward Castillo

agreed to accept service of these reports on behalf of [MMC] since they had not yet

made an appearance.” 3 RR 108 (DX 4).

Surprisingly, Hole filed objections to the expert reports on February 5, 2014.

His objections argued, inter alia, that the reports were not timely served because

Hole did not receive them until January 2014. See CR 211-18.

Perplexed by Hole’s belated objection in the face of the Rule 11 agreement,

Plaintiffs’ counsel wrote Hole on February 6, 2014 in an effort to clarify the issue.

3 RR 86-88 (PX 12). At the same time, JUA representatives “reviewed their file

and sent Ron Hole the email confirming their authorization for [Gonzalez Castillo]

to accept service of the Plaintiffs’ Chapter 74 reports back in October, 2013” and

“asked him to withdraw his argument that the hospital was not timely served with

the Chapter 74 expert reports.” 3 RR 45 (PX 2) (Tab E).

The lawyers spoke on February 7, 2014. Hole agreed that Gonzalez Castillo

had been authorized to accept the expert reports on behalf of MMC and advised

Plaintiffs’ counsel that MMC “will not proceed” with objections to the timeliness

of the reports. See 3 RR 6-7 (PX1) (Tab F); see also CR 330.

Memorializing this conversation, Hole sent Plaintiffs’ counsel a letter stating

that MMC would not proceed with its objections to the Chapter 74 expert reports:
8
3 RR 6 (PX 1) (Tab F).2 Plaintiffs believed that was the end of the matter.

After 18 months of litigation and on the eve of trial, MMC reasserts its objections
and provokes an extraordinary evidentiary hearing

With the February 2014 confusion behind them, the parties litigated this case

without incident for the next 18 months. During this period, the parties conducted

18 depositions—two of them with the experts who authored the Chapter 74 reports.

CR 330 at ¶19.

But with trial set for August 17, 2015, MMC—through its counsel Hole—

filed another motion to dismiss on July 20, 2015. CR 249-54. The motion argued

that the Chapter 74 reports had not been served timely—the very argument Hole

had represented MMC “will not proceed” to assert in February 2014. See id.

2
Plaintiffs’ counsel responded by accepting Hole’s representation and indicating that it was unnecessary to execute
a Rule 11 agreement regarding this unilateral withdrawal—Hole’s word was sufficient “as an officer of the Court.”
3 RR 128-29 (DX 9). Plaintiffs’ counsel offered to file Hole’s letter if necessary, id., but received no reply.
9
 Needless to say, this eleventh-hour development shocked Plaintiffs’ counsel,

who had relied on the Rule 11 agreement and Hole’s withdrawal of his objections.

At a hearing on the motion to dismiss on August 5, 2015, Plaintiffs set out to prove

that both of those events had occurred and were binding on MMC.

MMC first called Christine Gaitan-Valdez, who testified that she is MMC’s

“primary interface or liaison with the hospital’s insurance claims representatives

and with outside counsel.” 3 RR 120-22 (DX 6). Gaitan-Valdez explained that—

to her knowledge—the only outside attorneys hired to represent MMC in this case

were Ron Hole and one other attorney (Russell Schell). 2 RR 10-11, 14.

On the other hand, Gaitan-Valdez had never asked JUA whether any other

attorney had been authorized to accept the Chapter 74 reports on behalf of MMC.

2 RR 20-21. And in response to questions from the court, Gaitan-Valdez clarified

that her role as “primary interface or liaison” did not include selection of counsel:

COURT: This interface that you put in this affidavit, interface
liaison—what does that mean? You’re the one that makes
the decisions for the hospital ... Are you the one who
makes the decision for the hospital as to who the
attorneys will be who represent the hospital?

...

A: Not the final decision.
2 RR 30-31. Gaitan-Valdez repeatedly admitted that she does not make decisions

about counsel for MMC. 2 RR 31. JUA makes those decisions. 2 RR 48-49

(testimony of Steve Gonzalez).

10
 This discussion set the stage for a conversation—or perhaps confrontation—

between MMC’s current counsel (Hole) and its former counsel (Gonzalez).

Gonzalez testified unequivocally that his firm had been instructed to accept service

of the Chapter 74 reports on behalf of MMC by the insurer, JUA:

Q: (By Mr. Hole) On the date [the October 11, 2013 letter]
was signed by Mr. Castillo, who was Gonzalez and
Castillo representing in connection with this lawsuit?

A: We were representing [RGV] and [MMC] for the
purposes of obtaining a Rule 11 agreement on behalf of
[MMC] to extend the answer date that they would be
required to file an answer in this case; and for the
purposes of receiving service of the plaintiffs Chapter 74
reports. For those two purposes, we were representing
the hospital entities. We were also representing [RGV],
which I referenced earlier.
Q: You do understand that [RGV] is adverse to [MMC]?

A: I understand that after you became the attorney in this
case and started all of your misrepresentation and
representation that there—an adversity grew from that,
but did not exist back at the time when all parties wanted
me to represent the hospital, should the summary
judgment be granted on behalf of the group.

2 RR 43-44 (Tab G).

With respect to the critical issue in this appeal—whether Gonzalez Castillo

had been authorized by JUA to accept the Chapter 74 reports on behalf of MMC—

Gonzalez consistently testified that “we were asked to represent the hospital for the

purposes of obtaining a Rule 11 agreement and also for the purposes of receiving

and accepting service of the plaintiff’s Chapter 74 reports.” 2 RR 52 (Tab G).

11
 Q: (By Mr. Hole) Okay. Are you familiar that a Rule 11
agreement must be between the party or the party’s
attorney and that you were not the party’s attorney at the
time, correct?

A: . . . Our firm was asked and instructed to obtain a Rule 11
agreement from Plaintiff’s counsel in this lawsuit to
extend the deadline for filing an answer on behalf of the
hospital entities. And we were asked, as attorneys for the
hospital entities, to accept service of Chapter 74 reports
on behalf of the hospital entities. So if you’re telling me,
was I acting as an attorney on behalf of the hospitals and
was I authorized to do so? My answer is yes.

2 RR 57-58 (emphasis added) (Tab G).

MMC’s counsel revisited this point so many times, with the same responses,

that it became tiresome to the trial court: “Move on. He’s answered the same way

multiple times. For the purposes of getting the Rule 11 agreement and for the

purposes of the Chapter 74 reports. He’s said that multiple times already. And

you’ve asked that question multiple times now.” 2 RR 76-77 (Tab G).

Gonzalez further explained that Gaitan-Valdez, who was a “good friend,”

would not have been “in the loop on decisions like whether to extend an answer

date or whether to authorize our law firm to accept Chapter 74 reports.” 2 RR 47.

To suggest otherwise, he said, “is to completely mischaracterize her role in the

management of a lawsuit or the defense of a lawsuit for the hospitals.” Id.

This extraordinary testimony was not vindictive, but a conscientious effort to

live up to the ideals of our profession. Gonzalez explained his voluntary decision

to appear and offer this testimony in terms that should make any lawyer proud:

12
Q: (By Mr. Mithoff) Mr. Gonzalez, you were asked earlier
at the beginning of your examination about a subpoena
that I forwarded to you to appear here today. You
accepted the subpoena. You didn’t move to quash the
subpoena. You were with your family in California. Why
did you come? . . .

A: I consider myself an officer of the Court. If Mr. Hole had
asked me to come back, I would have come back without
a subpoena. He never called me, never tried to make any
contact with me at all at any time on any of these, even
back when it was happening when he filed this motion.

You called and said, Steve, all we want is to ask you is
for the true rendition of the true facts of what happened.
I have been authorized by the JUA so many times I can’t
tell you, to make agreements with attorneys whether I
have filed an answer, made an appearance or not, to
extend answer deadlines [and] on occasion to accept
service of Chapter 74 reports for these very same
hospitals, [MMC] included.
COURT: Just refresh my memory. How long have you been doing
[medical malpractice defense work]?
A: Well, 30 years plus 32 years was when I first handled my
first malpractice case in Houston and been practicing
down here for about 20 years.

COURT: And how long have you actually been working on cases
for this particular company and its entities?

A: I would say close to 20 years, tried many cases for them
in this courthouse and obviously, I’m in a very difficult
position here, Your Honor because they’re a dear client
of mine. And like I told you, Christy Valdez is a dear
friend of mine. I mean, we—personally and we also work
together. I have a lot of communication with her, but not
about extensions of time for answers and not about
acceptance of Chapter 74 reports. That’s not what she
and I do. That just happens to not be her job. She has
other very important work . . .

13
 What the hospital and its counsel are trying to say here is
not fair. It doesn’t represent the truth of how this works.
In a case of this magnitude, as I said at the beginning, if
Mr. Hole had wanted me to come back and tell the truth
about how these agreements get made between attorneys,
who gives the instructions, who gives the authority for
me to act as an attorney or as an agent to accept service
of Chapter 74 reports, I would be—I would have come
back without a subpoena, just like I have for Plaintiffs’
counsel.

So that’s why I did not choose to avoid this, even though
it was a major imposition on my family and my time with
them.
2 RR 96-100.

The trial court denies the motion to dismiss

The motion to dismiss was denied. CR 402. But the damage was done.

MMC appealed and invoked its right to an automatic stay of the trial. CR 403-07;

see also 2 RR 124-25.

14
 SUMMARY OF THE ARGUMENT
This Court should uphold the denial of MMC’s motion to dismiss for three

independent reasons.

First, MMC has not challenged all the grounds for the trial court’s ruling.

Plaintiffs raised a waiver argument in the trial court that MMC has not addressed,

which provides a quick and easy way to affirm the decision below.

Second, that waiver argument was correct on the merits and the trial court

properly exercised its discretion by sustaining it. Eighteen months before trial,

MMC’s current counsel raised an objection to the service of expert reports but then

agreed to withdraw the objection—reviving it on the eve of trial to secure delay.

The trial court correctly found that MMC waived any Chapter 74 complaint.

Third, the trial court correctly concluded that Plaintiffs timely served their

expert reports on MMC by serving the attorneys who were authorized to receive

them on behalf of MMC. It is no surprise that MMC’s current counsel agreed to

withdraw his objections to the Chapter 74 reports shortly after they were asserted;

the objections were utterly without merit. MMC’s insurer, which had the right to

select counsel and control the defense, authorized former counsel to accept service

of the expert reports on behalf of MMC. Failure to honor that Rule 11 agreement

would make a mockery of Section 74.351 and the laudable goals of “tort reform.”

The order should be affirmed as quickly as possible, so trial can proceed.

15
 STANDARD OF REVIEW: ABUSE OF DISCRETION
A trial court’s denial of a motion to dismiss a health-care liability claim

under Section 74.351 of the Civil Practice and Remedies Code is reviewed for an

abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001).

A trial court abuses its discretion if acts arbitrarily or unreasonably or

without any reference to guiding rules or principles. See, e.g., Walker v. Gutierrez,

111 S.W.3d 56, 62 (Tex. 2003); Fulp v. Miller, 286 S.W.3d 501, 505 (Tex. App.—

Corpus Christi 2009, no pet.).

When, as here, a trial court fails to issue specific findings of fact in support

of its ruling on a motion to dismiss, the Court implies all necessary findings of fact

that are supported by the evidence. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766

(Tex. 2011). This Court may uphold the trial court’s ruling on a motion to dismiss

on any theory supported by the record. Id.

16
 ARGUMENT AND AUTHORITIES
The trial court’s ruling can be affirmed on any of three independent grounds.

Plaintiffs recommend that the Court affirm on waiver grounds simply because it

can do so expeditiously, allowing the case to proceed to trial as soon as possible.

I. MMC waived its appeal by failing to challenge all grounds that support
the trial court’s ruling.

The trial court did not specify its grounds for denying the motion to dismiss.

CR 402. Because MMC has not challenged an independent basis for the ruling—

waiver—the Court can affirm the ruling below without even reaching the merits.

Plaintiffs therefore address this ground first.

When a trial court issues a ruling without specifying its grounds for decision,

“[a]n appellant must challenge each independent ground that may support an

adverse ruling.” U.S. Lawns, Inc. v. Castillo, 347 S.W.3d 844, 846 (Tex. App.—

Corpus Christi 2011, pet. denied); Inscore v. Karnes County Sav. & Loan Ass’n,

787 S.W.2d 183, 184 (Tex. App.—Corpus Christi 1990, no writ) (same).

Otherwise, this Court “must affirm the judgment on the unchallenged ground.”

U.S. Lawns, 347 S.W.3d at 847. This rule is well-settled and uniformly applied.

See, e.g., In re Elamex, S.A. de C.V., 367 S.W.3d 879, 888 (Tex. App.—El Paso

2012, no pet.); Britton v. Texas Dep’t of Criminal Justice, 95 S.W.3d 676, 681-82

(Tex. App.—Houston [1st Dist.] 2002, no pet.). It controls this case.

17
 A. On appeal, MMC argues only that it was not timely served with
expert reports.

MMC challenges the trial court’s ruling only on the basis that Plaintiffs did

not comply with the service requirements for expert reports under Section 74.351.

See MMC Br. at 6. It sets forth the service requirements for expert reports under

Section 74.351, see id. at 8-9, then argues that various acts by Plaintiffs did not

satisfy those requirements. Id. at 10-25. MMC is mistaken on the merits, but it is

unnecessary even to reach the merits of its arguments.

B. Plaintiffs asserted another ground to deny the motion to dismiss,
which MMC fails to challenge on appeal.

In addition to addressing the merits of MMC’s motion to dismiss below,

Plaintiffs also asserted—in Part I of their supplemental response—that MMC had

waived its right to challenge the timeliness of their service of the expert reports.

Plaintiffs explained that MMC intentionally relinquished its right to object to the

timeliness of the reports when, among other things, its current counsel withdrew

his objections in February 2014. See CR 312-14. In addition, Plaintiffs argued

that MMC’s waiver was evidenced by its intentional decision to remain silent on

the Chapter 74 issue for over 18 months as discovery proceeded. CR 313.

MMC’s appellate brief does not challenge this alternative basis for decision.

Having failed to do so in its opening brief, MMC cannot raise the issue in a reply.

See Tex. R. App. P. 38.3. This Court has specifically addressed this issue:

18
 It is well-settled that Rule 38.3 of the Texas Rules of Appellate
Procedure does not allow an appellant to include in a reply brief a new
issue in response to a matter pointed out in appellee’s brief but not
raised by the appellant’s original brief.

U.S. Lawns, 347 S.W.3d at 849 (quoting In re TCW Global Project Fund II, Ltd.,

274 S.W.3d 166, 171 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding)).

Thus, MMC has failed to challenge an alternative basis for the trial court’s ruling

and that omission is now incurable.

C. The Court should affirm the trial court’s ruling based on the
unchallenged ground.

Because MMC did not challenge Plaintiffs’ independent waiver argument,

“any error in the grounds challenged on appeal is harmless because the

unchallenged independent ground fully supports the adverse ruling.” In re Elamex,

367 S.W.3d at 888. This Court is unflinching: “If the appellant fails to challenge

all possible grounds, we must affirm the judgment on the unchallenged ground.”

U.S. Lawns, 347 S.W.3d at 847. That rule makes quick work of this appeal.

II. The trial court correctly found that MMC waived any objection to the
timeliness of service.

If the Court reaches the merits, it should hold that the trial court correctly

concluded MMC waived its right to object to the timeliness of the expert reports

when its current counsel (1) knowingly abandoned that objection in February 2014

and (2) proceeded with discovery for 18 months—until the eve of trial.

19
 A. Chapter 74 rights can be waived.

The traditional rules of waiver apply to expert report challenges under

Section 74.351. See Jernigan v. Langley, 111 S.W.3d 153, 156-58 (Tex. 2003).

The issue in Jernigan was whether failure to file a prompt objection is a waiver.

That issue has been mooted by the addition of a 21-day deadline for objections in

the current version of the statute, but Jernigan confirmed the general principle that

a party can waive its Chapter 74 rights. Id. at 156.

Waiver is intentional relinquishment of a known right or intentional conduct

inconsistent with claiming such a right. See Ulico Cas. Co. v. Allied Pilots Ass’n,

262 S.W.3d 773, 778 (Tex. 2008). Its elements are “(1) an existing right, benefit,

or advantage held by a party; (2) the party’s actual knowledge of its existence; and

(3) the party’s actual intent to relinquish the right, or intentional conduct

inconsistent with the right.” Id.

To the extent waiver is a question of intent, a court must consider the words,

acts, and conduct of the parties. See Motor Vehicle Bd. v. El Paso Indep. Auto

Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999). Under these circumstances,

the question of waiver is a question of fact. See id.

B. MMC’s affirmative representations and subsequent silence each
support a finding of waiver.

The trial court properly determined that MMC waived any objection to the

timeliness of the expert reports. Its factual finding of waiver is amply supported.

20
 The first two elements of waiver—an existing right and actual knowledge—

are unquestionably satisfied. All parties agree that MMC had a right to timely

expert reports under Section 74.351. And MMC’s initial assertion of that right,

prior to withdrawing its objections, proves its actual knowledge. See CR 211-18.

The only factual dispute concerned the third element, which Plaintiffs established.

First, MMC made an intentional decision to relinquish its Chapter 74 rights

through the affirmative representations of its current counsel. In February 2014,

MMC’s counsel withdrew his Section 74.351 objections, 3 RR 6-7 (PX1) (Tab F),

and he did so at the instruction of MMC’s insurer, JUA. 3 RR 45 (PX 2) (Tab E).

After more than a year of litigation, MMC tried to ambush Plaintiffs by reasserting

an objection to the timeliness of the expert reports on the eve of trial. CR 249-54;

see also pp. 8-9, supra. This scenario represents a classic case of waiver.

Texas courts have found waiver of Chapter 74 under nearly identical facts.

In Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL 4259886 (Tex. App.—

Houston [1st Dist.] Aug. 27, 2014, pet. denied) (mem. op.), defense counsel

promised the trial court and the plaintiff that a particular defendant would not seek

to assert Chapter 74. On the eve of trial, the defendant reneged and tried to assert

the statutory right. Id. at *2-3. The trial court refused to allow the defendant to

change position and assert Chapter 74 and the court of appeals affirmed. Id. at *4.

In this case, MMC tried the very same strategy disapproved by Uduma. This Court

can affirm on the basis of Uduma without further consideration of the merits.
21
 Second, following the representations of its counsel, MMC remained silent

for more than 18 months—during which time Plaintiffs relied on its representations

and proceeded with the litigation. This conduct was wholly inconsistent with any

claim that MMC intended to assert objections regarding the timeliness of the

expert reports. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643

(Tex. 1996) (silence or inaction may establish waiver if it is for so long a period

that it shows an intention to yield a known right). The trial court was entitled to

make such a finding in this case.

In sum, the representations and extended silence of MMC support a finding

that MMC waived its Chapter 74 rights. See, e.g., Memorial Hermann Hosp. Sys.

v. Hayden, No. 01-13-00154-CV, 2014 WL 2767128, at *9-10 (Tex. App.—

Houston [1st Dist.] Jun. 17, 2014, pet. denied) (mem. op.) (holding that defendant

who completed discovery and sought dismissal “four days prior to the trial court

actually calling the case to trial” had waived its right to seek dismissal pursuant to

Chapter 74); In re Sheppard, 197 S.W.3d 798, 801-02 (Tex. App.—El Paso 2006,

orig. proceeding) (holding participation in discovery plus delay waived any right to

seek dismissal based on expert report requirements).

The trial court did not abuse its discretion by finding that MMC had waived

its Section 74.351 rights. The ruling can be affirmed on this independent basis—

and doing so in a published opinion would send a strong message to the Texas bar

that gamesmanship like the conduct in this case will not be tolerated.
22
III. Plaintiffs satisfied Section 74.351 by serving the expert reports on
counsel authorized to accept them on behalf of MMC.

Finally, the trial court correctly found that Plaintiffs satisfied Section 74.351

by serving expert reports on counsel authorized to accept them on behalf of MMC.

Thanks to the integrity of MMC’s former counsel, who appeared voluntarily at the

hearing and told the whole truth, there is no room to question this finding.

Plaintiffs served the expert reports on Steve Gonzalez and Edward Castillo,

who were acting as attorneys for MMC pursuant to an explicit grant of authority.

Gonzalez and Castillo were served on October 11, 2013—well within the deadline

of December 5, 2013. Thus, the trial court properly denied the motion to dismiss.

A. Gonzalez and Castillo were granted express authority to act as
counsel for MMC for purposes of accepting the expert reports.

1. The insurer, JUA, had the right to choose counsel and
control the defense on behalf of MMC.

MMC’s insurance policy gave its insurer, JUA, “the right and duty to defend

any suit against the insured.” 3 RR 53 (PX 4). This authorization is dispositive,

because “[t]he right to conduct the defense includes the authority to select the

attorney who will defend the claim and to make other decisions that would

normally be vested in the insured . . . .” Northern County Mut. Ins. Co. v. Davalos,

140 S.W.3d 685, 688 (Tex. 2004); accord State Farm Mut. Auto Ins. Co. v. Traver,

980 S.W.2d 625, 627 (Tex. 1998) (same). Such policy language grants the insurer

“‘complete and exclusive control’” of the defense, State Farm, 980 S.W.2d at 627

(citation omitted), so JUA’s decisions in defending the suit are binding on MMC.
23
 2. JUA engaged Castillo and Gonzalez on behalf of MMC and
authorized them to accept service of Chapter 74 reports.

The trial court had good reason to find that JUA expressly authorized

Gonzalez and Castillo to accept Plaintiffs’ Chapter 74 reports on behalf of MMC.

The trial court heard live testimony and received documentary evidence to support

its factual finding that Gonzalez and Castillo were acting as attorneys for MMC

with respect to the Chapter 74 reports, and that they had been expressly authorized

by JUA to accept service of those reports on behalf of MMC.

Gonzalez unequivocally testified that he was “acting as an attorney on behalf

of the hospitals and was . . . authorized to do so.” 2 RR 58. He “definitely had an

attorney/client relationship with McAllen Medical Center . . . for purposes of

accepting the Chapter 74 expert reports.” Id. at 77; see also id. at 44, 52 (same);

pp. 11-14, supra.

This testimony was corroborated by the e-mails between Castillo and JUA,

which verified that JUA had authorized Gonzalez Castillo to accept expert reports

on behalf of MMC. See 3 RR 40 (PX 2) (Tab C); id. at 135-36 (DX 11) (Tab B);

see also pp. 6-7, supra. Indeed, when the Chapter 74 objections originally arose,

the JUA decisionmakers “sent Ron Hole the email confirming their authorization

for [Gonzalez Castillo] to accept service of the Plaintiffs’ Chapter 74 expert reports

back in October, 2013.” 3 RR 45 (PX 2) (Tab E). The evidence is overwhelming.

24
 Defying this evidence, MMC persists in claiming there is no evidence that

“either Mr. Gonzalez or Mr. Castillo was ever retained by the insurance company

to represent the MMC Defendants in connection with the underlying medical

negligence case.” MMC Br. at 16. The standard of review forecloses that claim.

The trial court did not abuse its discretion by determining that JUA had authorized

Gonzalez and Castillo to act as counsel for MMC for purposes of accepting service

of the Chapter 74 reports.

3. An enforceable Rule 11 agreement allowed Plaintiffs to
serve the reports on Gonzalez and Castillo.

As authorized by JUA, Gonzalez and Castillo executed a Rule 11 agreement

regarding the Chapter 74 expert reports. 3 RR 74-75 (PX 8) (Tab D). It stated that

Gonzalez and Castillo had been “authorized by [MMC] to accept service” of the

Chapter 74 expert reports, and it acknowledged that the reports had been received

by the attorneys “on behalf of [MMC] and that such receipt . . . constitutes proper

service on such entities as required by [Chapter 74].” Id.

That written agreement between counsel was filed with the trial court as part

of the proceedings on the motion to dismiss. CR 335-36; see also 2 RR 95. Thus,

it is binding on the parties to this litigation. See Tex. R. Civ. P. 11.

B. MMC’s last-ditch arguments are unavailing.

MMC makes a variety of final arguments concerning the validity of service

of the expert reports on Gonzalez and Castillo. None is meritorious.

25
 1. The manner of service is immaterial in this case.

Based on Fulp v. Miller, 286 S.W.3d 501 (Tex. App.—Corpus Christi 2009,

no pet.), MMC contends that service on Gonzalez and Castillo was insufficient

because the expert reports were served by regular mail, rather than certified mail. 3

But because MMC did not raise this argument in its motion to dismiss, CR 249-54,

or secure a ruling at trial, it has been waived. See Tex. R. App. P. 33.1(a).

In any event, Gonzalez and Castillo actually received the reports within the

120-day deadline—and acknowledged it. See 3 RR 74-75 (PX 8). In this situation,

the purpose of Rule 21a has been satisfied and no further compliance is required.

Spiegel v. Strother, 262 S.W.3d 481, 483-85 (Tex. App.—Beaumont 2008, no pet.)

(distinguishing numerous cases cited by MMC); Northeast Texas Staffing v. Ray,

330 S.W.3d 1, 4-5 (Tex. App.—Texarkana 2010, no pet.); Goforth v. Bradshaw,

296 S.W.3d 849, 854 (Tex. App.—Texarkana 2009, no pet.). This complaint is

both unpreserved and insubstantial, and it contradicts the Rule 11 agreement.

2. There was no “attorney in charge” to be served and the
parties agreed to an alternative form of service.

Based again on Fulp, MMC also argues that service on a “party’s attorney”

under Section 74.351 requires service on an “attorney in charge” under Rule 8.

MMC Br. at 22-23. Again, MMC did not raise this issue in its motion to dismiss,

CR 249-54, or secure a ruling at trial, so it is waived. See Tex. R. App. P. 33.1(a).

3
Rule 21a was amended, effective less than three months after Plaintiffs served their reports on Gonzalez Castillo,
to allow for service by regular mail. See Misc. Docket No. 13-9165 (Tex. Dec. 15, 2013).
26
 Furthermore, MMC’s reading of Fulp is flawed. As a threshold matter,

nothing in Rule 8 forbids altering the rules of service through a Rule 11 agreement.

Here, the parties had a valid Rule 11 agreement that authorized Plaintiffs to serve

their expert reports on Gonzalez and Castillo. Thus, irrespective of Rule 8 or Fulp,

Plaintiffs satisfied Chapter 74. Fulp did not eviscerate Rule 11 agreements.

In any event, this Court should not be mislead about its decision in Fulp.

There, the Court held that when an answer has been filed on behalf of a defendant,

id. at 504-05, a health-care liability claimant cannot satisfy Chapter 74 by serving

reports on an attorney other than the attorney who filed the answer. Id. at 512.

That holding is unexceptional, but it has no application to the present case.

In this case, MMC had not filed an answer—ironically, because Gonzalez Castillo

had negotiated an extension of the answer deadline for MMC. See pp. 3-4, supra.

Thus, not only was there no “attorney of record” for MMC at the time the reports

were served, but the same attorneys who secured a Rule 11 agreement extending

the answer deadline likewise executed an agreement to accept the expert reports.

Under these facts, Fulp does not apply. This Court was careful to emphasize that,

in Fulp, “[t]he record does not reflect that [the attorney in the separate case] or any

other attorney represented the Hospital in this case.” Id. at 511 n.6. By contrast,

the record shows that Gonzalez and Castillo “represented the Hospital in this case,”

id., and the trial court was entitled to make that finding.

27
 3. MMC’s other arguments are irrelevant.

MMC’s last two arguments are facially irrelevant. First, MMC observes that

the mere act of filing expert reports does not constitute service on the defendant.

MMC Br. at 10-11. Second, MMC asserts that serving an expert report on a

defendant’s insurer does not constitute service on the defendant. Id. at 23-24.

Both propositions are correct, see Offenbach v. Stockton, 285 S.W.3d 517, 522-23

(Tex. App.—Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011), but irrelevant.

Plaintiffs do not argue that Chapter 74 was satisfied when their reports were filed

with the trial court or served on MMC’s insurer. The statute was satisfied when

the reports were served on the attorneys authorized to accept them and identified in

a valid and binding Rule 11 agreement. The trial court did not err.

C. MMC’s evidentiary objections are unpreserved and insubstantial.

As part of its argument challenging Gonzalez and Castillo’s ability to accept

the Chapter 74 reports, MMC briefly mentions an objection to Plaintiffs’ Exhibit 2:

Also, nothing in any of the documents admitted into evidence at the
hearing, including the documents from the insurance company (which
were clearly hearsay, not properly authenticated and objected to on
those bases—[citation]), indicate that either Mr. Gonzalez or Mr.
Castillo was ever retained by the insurance company to represent the
MMC Defendants in connection with the underlying medical
negligence case.

MMC Br. at 16 (emphasis added). This parenthetical reference is insufficient to

present any ground for relief on appeal and erroneous in any event. To be safe,

Plaintiffs address it here for the convenience of the Court.

28
 1. Any evidentiary complaint has been waived by inadequate
preservation and inadequate briefing.

To the extent that MMC seeks to challenge the admission of “the documents

from the insurance company” on appeal, it did not preserve such an issue below.

MMC objected below “only as to the hearsay within hearsay and authenticity as to

some of the documents” in Plaintiffs’ Exhibit 2, which contained numerous e-mails

among JUA, Gonzalez and Castillo, and Plaintiffs’ counsel. 2 RR 85. However,

MMC did not identify any particular documents as the subject of its objection,

which is insufficient to preserve any complaint. See Tex. R. App. P. 33.1(a);

Columbia Rio Grande Regional Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex. App.—

Corpus Christi 2000, no pet.) (holding that blanket objections to entire exhibits on

the basis of hearsay, without identifying specific statements, preserve nothing for

appellate review). A litigant who “directs its objections to the exhibits as a whole

and does not point out which parts are objectionable hearsay” waives error. Id.

Likewise, MMC’s allusion to “the documents from the insurance company”

in its appellate brief does not adequately present an issue for this Court to review.

See Tex. R. App. P. 38.1. Without any specific reference to a particular document

or any citation to legal authority, it is impossible to answer or analyze this issue.

Such a “bald assertion of objections made to the trial court without any citations to

the record or legal authority” is thus “inadequately briefed.” Gonzalez v.

Villarreal, 251 S.W.3d 763, 774 (Tex. App.—Corpus Christi 2008, pet. denied).

29
 2. The authenticity objection was invalid.

To the extent that the Court entertains any argument about the authenticity

of the documents within Plaintiffs’ Exhibit 2, that objection was meritless and the

trial court properly overruled it. After MMC asserted its authenticity objection,

Gonzalez immediately confirmed that he had personal knowledge of the e-mails

and that they had not been altered. 2 RR 85-86. This testimony supported a

finding that the documents were authentic copies of e-mails from Gonzalez’s file.

See Tex. R. Evid. 901. The trial court did not abuse its discretion by overruling the

authenticity objection.

3. The hearsay objection was invalid.

Likewise, to the extent that the Court entertains any argument about hearsay,

that objection was meritless and the trial court properly overruled it.

Obviously, any “documents from the insurance company” are not hearsay.

Documents offered against MMC and made by its agent (JUA) on a matter within

the scope of JUA’s duty to conduct the legal defense constitute party admissions.

Thus, they are “not hearsay.” Tex. R. Evid. 801(e)(2)(D); Excel Corp. v. Porras,

14 S.W.3d 307, 314 n.1 (Tex. App.—Corpus Christi 1999, pet. denied).

To the extent that MMC actually meant to challenge the e-mails by Castillo

(which are not “documents from the insurance company”), its objection was futile.

Those emails were admissible for at least two reasons.

30
 First, MMC counsel Hole alleged that Gonzalez and Castillo had fabricated

their testimony and acted with improper motives by claiming they were authorized

to act on behalf of MMC while simultaneously representing RGV in the litigation.

See 2 RR 43-44, 102-103. Castillo’s e-mails were consistent with his testimony,

DX 11 (Tab B), so they were “not hearsay.” Tex. R. Evid. 801(e)(1)(B).

Second, even if the e-mails were hearsay, they were admissible under the

exception for present-sense impressions. The emails were sent after Castillo spoke

with JUA “just now,” 3 RR 40 (PX 2) (Tab C), and “just received a call,” 3 RR 45

(PX 2) (Tab E), and they memorialized his impressions about those discussions.

Such impressions “are not excluded by the hearsay rule.” Tex. R. Evid. 803(1);

Daniels v. Yancey, 175 S.W.3d 889, 895-96 (Tex. App.—Texarkana 2005, no pet.).

For either reason, the trial court did not abuse its discretion by overruling the

hearsay objections.

4. MMC has not demonstrated that any error was harmful.

Finally, MMC bears the burden to prove that it has been prejudiced by the

trial court’s evidentiary rulings. See In re M.S., 115 S.W.3d 534, 538 (Tex. 2013).

Without identifying specific documents for challenge, MMC cannot hope to show

that the decision “turns on” inadmissible evidence. Tex. Dep’t of Transp. v. Able,

35 S.W.3d 608, 617 (Tex. 2000). Furthermore, any document subject to challenge

was cumulative of other evidence (including testimony by Gonzalez and Castillo),

so at most, any error would be harmless. See Tex. R. App. P. 44.1(a).
31
 The vague nature of MMC’s complaint underscores the absence of harm.

MMC challenges only “documents from the insurance company,” MMC Br. at 16,

but Plaintiffs’ brief does not rely on any “documents from the insurance company.”

E-mails from the lawyers to JUA confirming that Gonzalez Castillo was authorized

to accept the Chapter 74 reports are not “documents from the insurance company.”

See pp. 6, 8, supra. Therefore, MMC has utterly failed to establish harmful error;

to the extent that the decision below can be upheld without any reference to the

“documents from the insurance company,” any error was plainly harmless.

CONCLUSION AND PRAYER FOR RELIEF

The trial court’s order denying the motion to dismiss should be affirmed.

Plaintiffs request all other relief to which they are entitled.

Respectfully submitted,

BECK REDDEN LLP

MITHOFF LAW By: /s/ Russell S. Post
Richard Warren Mithoff Russell S. Post
State Bar No. 14228500 State Bar No. 00797258
rmithoff@mithofflaw.com rpost@beckredden.com
Joseph R. Alexander, Jr. Patrice B. Childress
State Bar No. 00995150 State Bar No. 24059569
jalexander@mithofflaw.com pchildress@beckredden.com
Warner Hocker Kyle Lawrence
State Bar No. 24074422 State Bar No. 24087895
whocker@mithofflaw.com klawrence@beckredden.com
500 Dallas, Suite 3450 1221 McKinney Street, Suite 4500
Houston, TX 77002 Houston, TX 77010
(713) 654-1122 (713) 951-3700
(713) 739-8085 (Fax) (713) 951-3720 (Fax)

32
COWAN & GARZA SMITH & HASSLER
Viola G. Garza Brent Cordell
State Bar No. 00787518 State Bar No. 24005953
506 East Dove Street 1445 North Loop West, Suite 700
McAllen, TX 78504 Houston, TX 77008
(956) 994-9170 (713) 739-1250
(956) 618-2324 (Fax) (713) 864-7226 (Fax)

ATTORNEYS FOR APPELLEES MARIO I. RODRIGUEZ AND LUDIVINA IRACHETA,
INDIVIDUALLY AND AS NEXT FRIENDS OF XXXXX, A MINOR

33
 CERTIFICATE OF SERVICE

I hereby certify that on December 22, 2015, a true and correct copy of the
above and foregoing Brief of Appellees was forwarded to all counsel of record, by
the Electronic Filing Service Provider if registered, otherwise by email, as follows:

Ronald G. Hole Douglas M. Kennedy
HOLE & ALVAREZ, L.L.P. BRIN & BRIN, P.C.
P. O. Box 720547 623 I-H 10 West
McAllen, TX 78504 San Antonio, TX 78201
mail@holealvarez.com dkennedy@brinandbrin.com

Russell W. Schell Attorneys for Defendants Hugo F.
SCHELL COOLEY LLP Carvajal, M.D., Texas Inpatient
15455 Dallas Parkway, Suite 550 Pediatrics, P.A., Texas Pedicare, P.A.,
Addison, TX 75001 South Texas Urgent Care, P.L.L.C.
rschell@schellcooley.com d/b/a North Central Urgent Care and
Comprehensive Urgent Care, P.A.
Counsel for Defendants McAllen
Hospitals, L.P., McAllen Hospitals, W. Richard Wagner
L.P. d/b/a McAllen Medical Center, WAGNER CARIO, LLP
McAllen Medical Center, McAllen 7705 Broadway
Hospitals, L.P. d/b/a South Texas San Antonio, TX 78209
Health System and South Texas Health rwagner@wagnercario.com
System
Attorneys for Defendants RGV
Eloy Sepulveda Pediatric Critical Care, P.A.
ATTORNEY AT LAW
716 South Texas Blvd.
Weslaco, TX 78596
sepulveda.law@gmail.com

Guardian Ad Litem

/s/ Russell S. Post
Russell S. Post

34
 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of
Tex. R. App. P. 9.4 because it contains 7,455 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(2)(B).

2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

Dated: December 22, 2015.

/s/ Russell S. Post
Russell S. Post
Counsel for Appellees
Mario Rodriguez and Ludivina Iracheta,
Individually and as Next Friends of
Xxxxx Xxxxxxxxx, A Minor,

35
 NO. 13-15-00362-CV

IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS

MCALLEN HOSPITALS, L.P., MCALLEN HOSPITALS, L.P. D/B/A
MCALLEN MEDICAL CENTER, MCALLEN MEDICAL CENTER,
MCALLEN HOSPITALS, L.P. D/B/A SOUTH TEXAS HEALTH SYSTEM
AND SOUTH TEXAS HEALTH SYSTEM,
Appellants,

v.

MARIO RODRIGUEZ AND LUDIVINA IRACHETA, INDIVIDUALLY
AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR,
Appellees.

On Appeal from the 389th District Court, Hidalgo County, Texas
Trial Court Cause No. C-2334-12-H

APPENDIX TO
BRIEF OF APPELLEES

Tab

A Order denying MMC’s Motion to Dismiss (CR 402)

B DX 11 (3 RR 136)
C Email from PX2 (3 RR 40)

D PX8 (3 RR 74-75)

E Email from PX2 (3 RR 45)

F PX1 (3 RR 6-7)

G Excerpts of Steve Gonzalez Testimony (2 RR 43-44, 52,
57-58, 76-77)

36
 TAB A
Order denying MMC’s Motion to Dismiss
(CR 402)
 CAUSE NO. C-2334-12-H

MARIO I. RODRIGUEZ AND LJDUVINA § IN THE DISTRIC'r COURT
IRACHET A Individuallv and as Next Friends S
nr xx s
A MINOR §
Plaintiffs §
§
VS. § 389'h JUDICIAL DISTRICT

HUGO F. CARVAJAL, M.D.; TEXAS §
INPATIENT PEDIATRICS, P.A.; TEXAS §
PEDICARE, P.A.; RGV PEDIATRIC §
CRITICAL CARE, P.A.; SOUTH TEXAS §
T TDrciO"lT r• 'DC Dl r• .111..1. ktroDTll

'"'-'" J tVU, U I t '"J-l."-L, dHU ~

COMPREHENSIVE URGENCT CARE, P A. §
Defendants § HIDALGO COUNTY, TEXAS

CAME ON FOR HEARING this day McAllen Hospital Defendants' Motion to Dismiss

~ .n. ... \. . th .~ th

this court is of the opinion that McAllen Hospital Defendants' Motion to Dismiss should be

DENIED; it is therefore

ORDERED that McAllen Hospital Defendants' Motion to Dismiss be and is hereby

DENIED;.J+ is l\frt!'l@"

,J"LU Ul