Shan Kovaly v. Tulsidas Kurvanka, M.D. and Ikedinobi U. Eni, M.D.

ACCEPTED 01-15-00350-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 12/3/2015 2:59:35 PM CHRISTOPHER PRINE CLERK 01-15-00350-CV ______________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT OF TEXAS 12/3/2015 2:59:35 PM CHRISTOPHER A. PRINE ______________________________________ Clerk SHAN KOVALY Appellant v. TULSIDAS KURUVANKA, M.D., ET AL., AND IKEDINOBI U. ENI, M.D., ET AL., Appellees. ______________________________________ On Appeal from the 113th Judicial District Court of Harris County, Texas APPELLEES’ BRIEF EDWARDS & ASSOCIATES JAMES B. EDWARDS SBN: 06453600 jbe@malpracticedefense.com ATTORNEYS FOR APPELLEES STACY T. GARCIA TULSIDAS KURUVANKA, M.D. SBN: 24085323 AND NORTHWEST HOUSTON stg@malpracticedefense.com CARDIOLOGY, P.A. 12603 Southwest Freeway, Suite 200 Stafford, Texas 77477-3809 Phone: 281-277-4940 Fax: 281-277-4974 ORAL ARGUMENT REQUESTED 01-15-00350-CV ______________________________________ IN THE COURT OF APPEALS FIRST JUDICIAL DISTRICT OF TEXAS ______________________________________ SHAN KOVALY Appellant v. TULSIDAS KURUVANKA, M.D., ET AL., AND IKEDINOBI U. ENI, M.D., ET AL., Appellees. ______________________________________ On Appeal from the 113th Judicial District Court of Harris County, Texas CERTIFICATE OF PARTIES AND ATTORNEYS In accordance with the Texas Rules of Appellate Procedure 38.1(a), Appellees certify the following is a complete list of the parties, attorneys, and other persons with an interest in the outcome of the lawsuit: Shan Kovaly, Plaintiff/Appellant by and through his trial and appellate counsel of record: Steven R. Davis Davis & Davis 440 Louisiana St., Suite 1850 Houston, Texas 77002 steve@davis-davislaw.com Phone: 713-781-5200 Fax: 713-781-2235 Appellant’s Trial Counsel ii Iain Simpson Simpson, P.C. 1333 Heights Blvd., Suite 102 Houston, Texas 77008 iain@simpsonpc.com Phone: 281-989-0742 Fax: 281-596-6960 Appellant’s Appellate Counsel Tulsidas S. Kuruvanka, M.D. and Northwest Houston Cardiology, P.A., Defendants/Appellees by and through his counsel of record: James B. Edwards Stacy T. Garcia Edwards & Associates 12603 Southwest Freeway, Suite 200 Stafford, Texas 77477-3809 jbe@malpracticedefense.com stg@malpracticedefense.com Phone: 281-277-4940 Fax: 281-277-4974 Ikedinovi U. Eni, M.D and Ikedinovi U. P.A., Defendants/Appellees by and through his trial and appellate counsel of record: Joel Sprott Kristin Blanchard Sprott, Newsom, Lunceford, Quattlebaum & Messenger 2211 Norfolk Street Houston, Texas 77098 sprott@sprottnewsom.com Phone: (713) 523-8338 Fax: (713) 523-9422 Appellees’ Trial Counsel Diana L. Faust Cooper & Scully, PC 900 Jackson Street, Suite 100 Dallas, Texas 75202 iii Diana.faust@cooperscully.com Phone: (214) 712-9500 Fax: (512) 712-712-9540 Appellees’ Appellate Counsel The following are parties interested in the trial court proceeding but are not parties to this appeal: The Honorable Michael Landrum, Judge Presiding Judge of the 113th Judicial District Court 201 Caroline, 10th Floor Houston, Texas 77002 Phone: 713-368-6113 iv TABLE OF CONTENTS CERTIFICATE OF PARTIES AND ATTORNEYS ……………………………..ii TABLE OF CONTENTS ………………………………………………………….v INDEX OF AUTHORITIES …….………………………………………………vii APPELLANT’S BRIEF ……………………………………………………………1 STATEMENT OF THE CASE ……………………………………………………2 STATEMENT ON ORAL ARGUMENT …………………………………………3 STATEMENT OF THE JURISDICTION ………………………………………4 APPELLANT’S ISSUE PRESENTED ……………………………………………5 STATEMENT OF THE FACTS ………………..…………………………………6 SUMMARY OF THE ARGUMENT ……………………………………………8 ARGUMENT & AUTHORITIES …………….……………………………………9 I. Standard of Review …….…………………………………………9 II. Reply Issue Number One ………………………………………….9 A. C.P.R.C. Chapter 74 Requires Pre-Suit Notice And a Valid Medical Authorization to Toll the Statute of Limitations ..….10 B. The Pre-Suit Medical Authorization Mr. Kovaly Gave to A Non-Party Does Not Satisfy The Requirements of Chapter 74 To Toll the Statute of Limitations ...………………………..12 C. Pre-Notice Was Not Given to Any Party In This Case ………13 CONCLUSION AND PRAYER …………………………………………………15 CERTIFICATE OF SERVICE …………………………………………………..17 v CERTIFICATE OF COMPLIANCE ……………………………….……………18 APPENDIX ………………………………………………………………………19 vi INDEX OF AUTHORITIES CASES Bocken v. Entergy Gulf States, Inc., 197 S.W.3d 429 (Tex. App. – Beaumont 2006). ………..………………….9 Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011). …………………………………10, 11, 12 De Checa v. Diagnostic CenterHosp., Inc., 852 S.W. 2d 935 (Tex. 1993).………………………………………….13, 14 Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex. 1970) ………………………………………..…9 Mitchell v. Methodist Hospital, 376 S.W.3d 833 (Tex. App. – Houston [1st Dist.] 2012, pet. denied). ………………………………………………………….8, 11, 12, 13 Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984) ……………………………………….9 Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App. – San Antonio 1998, pet. denied) ……….9 Nicholson v. Shinn, 2009 WL 3152111 (Tex. App. – Houston [1st Dist.] 2009, no pet.)...8, 12, 13 Rhòne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 224 (Tex. 1999). …………………………………………9 STATUTES Civ. Prac. & Rem. Code § 74.051 …………………………………………….8, 10 Civ. Prac. & Rem. Code § 74.052 …………………….………………………….11 Civ. Prac. & Rem. Code § 74.251(a) …………………………………………….8 Tex. R. Civ. Pro. § 166a(c) ………………………………………………………9 RECORD Clerk’s Record (CR) vii 01-15-00350-CV ______________________________________ IN THE COURT OF APPEALS FIRST JUDICIAL DISTRICT OF TEXAS ______________________________________ SHAN KOVALY Appellant v. TULSIDAS KURUVANKA, M.D., ET AL., AND IKEDINOBI U. ENI, M.D., ET AL., Appellees. ______________________________________ On Appeal from the 113th Judicial District Court of Harris County, Texas BRIEF OF APPELLEES, TULSIDAS KURUVANKA, M.D. AND NORTHWEST HOUSTON CARDIOLOGY, P.A. TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Come now, TULSIDAS KURUVANKA, M.D. AND NORTHWEST HOUSTON CARDIOLOGY, P.A. (“Dr. Kuruvanka”), Appellees herein and submit this Brief. In support of their request that this court affirm the trial court’s order granting Appellees’ Motion for Summary Judgment in this matter, Appellees respectfully show the Court the following: 1 STATEMENT OF THE CASE Nature of the Case. This is a healthcare liability claim governed by Chapter 74 of the Texas Civil Practice and Remedies Code that involves medical care rendered to Shan Kovaly at Houston Northwest Medical Center by Drs. Kuruvanka and Eni, respectively. (CR 5-6). Mr. Kovaly sued Dr. Kuruvanka, and other healthcare providers, claiming negligent care by them caused him harm. (CR 7) Trial Court Proceedings. Mr. Kovaly filed suit on November 11, 2014 in Harris County, Texas. (CR 3-10) In February 2015, Dr. Kuruvanka filed a Motion for Summary Judgment claiming Mr. Kovaly’s suit was barred by the Statute of Limitations. (CR 35-45) The trial court granted Dr. Kuruvanka’s Motion for Summary Judgment as well as a similar motion by the Eni defendants. (CR 103) Mr. Kovaly then filed this appeal. (CR 108-109) 2 REQUEST FOR ORAL ARGUMENT Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, Appellees Tulsidas Kuruvanka, M.D. and Northwest Houston Cardiology, P.A. respectfully request an oral argument in this case. 3 STATEMENT OF JURISDICTION The appeal of this case is from a final order that disposes of all of Mr. Kovaly’s claims against Dr. Kuruvanka and Northwest Houston Cardiology, P.A., pursuant to a Motion for Summary Judgment filed by Dr. Kuruvanka and Northwest Houston Cardiology, P.A. and granted by the trial court. Notice of appeal was filed in accordance with Tex. R. App. P. § 25 and § 26. 4 APPELLEES’ ISSUE PRESENTED Reply To Issue Number One Whether the trial court correctly granted Dr. Kuruvanka’s Motion for Summary Judgment when Mr. Kovaly failed to file suit against Dr. Kuruvanka within the two year statute of limitations after failing to provide the adequate pre- suit notice and medical authorization that would have tolled the statute of limitations for seventy-five days? 5 STATEMENT OF THE FACTS This case involves medical negligence allegations against Dr. Kuruvanka and the Eni appellees for the care and treatment received by Shan Kovaly, while a patient at Houston Northwest Medical Center from August 28, 2012 through August 30, 2012. (CR 5) Mr. Kovaly was admitted to Houston Northwest Medical Center on August 28, 2012 complaining of chest pain. Id. Mr. Kovaly was thought to have suffered a myocardial infarction and underwent cardiac catheterization with angioplasty and stenting in the cardiac catherization lab. Id. Mr. Kovaly was discharged by Dr. Eni on August 30, 2012 with multiple prescriptions, for Lopressor, Pravachol, aspirin, Plavix, and Lisinopril, some of which were allegedly prescribed by Dr. Kuruvanka. Id. Each of the prescriptions contained the necessary information to allow the prescribed medication to be dispensed except for the quantity of tablets to dispense. Id. Mr. Kovaly presented the prescriptions as written to a Wal-Mart pharmacy on August 31, 2012; at which time, the pharmacy informed him they would be unable to dispense the medication because the quantity was not indicated on the prescription. Id. There is some discrepancy between the parties as to the availability of the defendants/appellees to clarify the omission over the next few days but records indicate on September 4, 2012, the Wal-Mart pharmacy dispensed Mr. Kovaly’s medication. (CR 36) That same day, Mr. Kovaly was readmitted to Houston Northwest Medical Center with 6 an apparent subsequent heart attack and clotting in his stent. (CR 6) Mr. Kovaly filed suit on November 11, 2015 and has alleged Dr. Kuruvanka was negligent and grossly negligent in his care and treatment of Mr. Kovaly on August 30, 2012 in failing to write a valid prescription for medically necessary medication and failing to contact the pharmacy or Mr. Kovaly to correct the prescription. (CR 6-7) On December 5, 2014, Dr. Kuruvanka filed his First Amended Answer pleading the affirmative defense that the suit was barred by the statute of limitations. (CR 15-20) On February 26, 2015, Dr. Kuruvanka filed a Traditional Motion for Summary Judgment on the basis that Mr. Kovaly’s claims were barred by the statute of limitations, similar in substance to the one filed by the Eni defendants on February 20, 2015. (CR 21-28, 35-45) On March 20, 2015, Judge Michael Landrum, of the 113th District Court, signed an order granting Dr. Kuruvanka’s (and the Eni defendants’) Motion for Summary Judgment and dismissing all of Mr. Kovaly’s claims. (CR 103) Mr. Kovaly now seeks appellate review of this issue. 7 SUMMARY OF THE ARGUMENT This suit is a health care liability claim governed by Chapter 74 of the Civil Practice and Remedies Code in which Mr. Kovaly seeks to recover damages for the development of a subsequent heart attack allegedly caused by his inability to obtain his medications resulting from Dr. Kuruvanka’s alleged failure to provide a valid prescription. Mr. Kovaly’s suit is barred by the Statute of Limitations because: 1. The statute of limitations for a Chapter 74 claim is 2 years. TEX. CIV. PRAC. & REM. CODE § 74.251(a) 2. Limitations can be tolled for 75 days only with proper notice and a statutorily compliant authorization. TEX. CIV. PRAC. & REM. CODE § 74.051 3. Plaintiff failed to provide pre-suit notice and in the alternative failed to provide a statutorily compliant authorization with his pre-suit notice and therefore failed to toll the limitations. (CR 35-45) 4. Plaintiff filed his lawsuit after the expiration of the statute of limitations. (CR 3-9) Therefore, Dr. Kuruvanka was entitled to summary judgment on all claims asserted by Mr. Kovaly. Mitchell v. Methodist Hospital, 376 S.W.3d 833 (Tex. App. – Houston [1st Dist.] 2012, pet. denied); Nicholson v. Shinn, 2009 WL 3152111 (Tex. App. – Houston [1st Dist.] 2009, no pet.). The trial court did not err in granting Dr. Kuruvanka’s Traditional Motion for Summary Judgment. 8 ARGUMENT AND AUTHORITIES I. Standard of Review A trial court’s ruling on a Motion for Summary Judgment is reviewed de novo. Bocken v. Entergy Gulf States, Inc., 197 S.W.3d 429 (Tex. App. – Beaumont 2006). When reviewing a Motion for Summary Judgment on appeal, the court looks at whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex. 1970); see Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App. – San Antonio 1998, pet. denied). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); TEX. R. CIV. PRO. 166a(c). A defendant moving for summary judgment on the affirmative defense of statute of limitations has the burden to establish the following: (1) Conclusively prove when the cause of action accrued; and, (2) Conclusively negate the application of any tolling provision pled by the Plaintiff. See Rhòne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 224 (Tex. 1999). II. Reply to Issue Number One The trial court did not err when it granted Dr. Kuruvanka’s Motion for 9 Summary Judgment. Mr. Kovaly failed to comply with Texas Civil Practices and Remedies Code § 74.051 by failing to provide adequate pre-suit notice with the required medical authorization resulting in him not being entitled to a tolling of the statute of limitations for seventy-five days. Therefore, his suit is barred by the statute of limitations and was appropriately dismissed by the trial court. A. C.P.R.C. Chapter 74 Requires Pre-Suit Notice And a Valid Medical Authorization to Toll the Statute of Limitation The Civil Practice and Remedies Code specifies that “Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court in this state based upon a health care liability claim.” TEX. CIV. PRAC. & REM. CODE § 74.051(a)(emphasis added). This notice must be accompanied by a medical authorization form for the release of protected health information and shall toll the applicable statute of the limitations period for up to 75 days. TEX. CIV. PRAC. & REM. CODE § 74.051(a)(c)(emphasis added); Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (holding that “[f]or the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form”). The authorization and tolling provision serves an important purpose: it allows the defendant to procure the plaintiff’s records from 10 plaintiff's current treating healthcare providers and those five (5) years prior to defendant's treatment in order to assess whether the claim has merit and whether the defendant should consider early, pre-suit resolution. TEX. CIV. PRAC. & REM. CODE §74.052; see also Carreras, at 68. Section 74.052 further mandates the form of the medical authorization which must accompany the notice of a health care claim under Section 74.051. TEX. CIV. PRAC. & REM. CODE § 74.052(c). In section 74.052(c), the Legislature directed the use of a specific form for authorizing health care providers to both obtain and disclose protected health information for the purpose of investigating, evaluating, and defending against health care liability claims. TEX. CIV. PRAC. & REM. CODE § 74.052(c) [providing that medical authorization “shall be” in the given form and then setting forth the form beginning with “I ____, (name of patient or authorized representative), hereby authorize ____ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the parameters set out below) the protected health information described below”]. Without such an authorization the statute of limitations is not tolled and therefore plaintiff’s petition must be filed within two years of the alleged breach. Carreras, at 73; Mitchell, at 837 (holding that the HIPAA-compliant form provided deviated from the section 74.052(c) form because it did not specifically identify Methodist as an entity authorized to obtain protected health information 11 and was thus inadequate to trigger the tolling period); Nicholson, at *5 (holding that the medical authorization forms deviated from section 74.052 in that they failed to authorize the health care provider to obtain and disclose protected health information. The failure to comply meant the claimant had not substantially complied with sections 74.051 and 74.052, and therefore the limitations period was not tolled). A statutorily required authorization must accompany the Notice or the Notice does not comply with Chapter 74 and the tolling provision does not apply. See Carreras, at 73. B. The Pre-Suit Medical Authorization Mr. Kovaly Gave to A Non-Party Does Not Satisfy The Requirements of Chapter 74 To Toll the Statute of Limitations In this case, like the claimants in Mitchell and Nicholson, Mr. Kovaly did not furnish a medical authorization to obtain medical records and the seventy-five day tolling period was not triggered. On July 23, 2013, Mr. Kovaly, through his counsel, sent Wal-Mart, the dispensing pharmacy, a Notice of Claim with an accompanying authorization. It should be noted that Wal-Mart is not, and never has been, a party to this suit. Neither Dr. Kuruvanka nor the Eni defendants, in the present case, received a Notice of Claim letter or any medical authorization. That form only granted Wal-Mart the authority to obtain and disclose Mr. Kovaly’s protected health information. Therefore, because the authorization did not provide Dr. Kuruvanka or the Eni defendants in the present case with authority to obtain 12 protected health information pursuant to §74.052(c)(A), the authorization did not comply with the statutory requirements and, accordingly, Mr. Kovaly’s “notice” did not serve to toll the limitations period as to Mr. Kovaly’s claims against Dr. Kuruvanka. See Mitchell, at 837; Nicholson, at *5. As such, Dr. Kuruvanka was not afforded the opportunity to access Mr. Kovaly’s medical records in order to ascertain whether the claim had merit and/or whether they should consider pre-suit resolution. The purpose of the statutory requirement is not fulfilled if the potential parties to the lawsuit are deprived of the opportunity to investigate and evaluate and/or potentially settle the claim. Nicholson, at *5 C. Pre-Notice Was Not Given to Any Party In This Case Kovaly is relying on the De Checa v. Diagnostic Ctr. Hosp. case to argue adequate pre-suit notice was provided in this matter; however, that reliance is misplaced. In De Checa, the plaintiffs served pre-suit notice of their claim on other health care providers who were not involved in the proceeding within two years of accrual and served pre-suit notice on the defendant physicians within two years and seventy-five days. In De Checa, pre-suit notice was given to a co- defendant in the case. De Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935 (Tex. 1993). In De Checa, the plaintiffs served pre-suit notice of their claim on other health care providers who were not involved in the proceeding within two years of accrual and served pre-suit notice on the defendant physicians within two years 13 and seventy-five days. Id. at 937. However, this case is distinguishable because in De Checa case, the defendants actually received pre-suit notice and here they did not. The only pre-suit notice that can be purported to be given in this case is the notice Mr. Kovaly’s counsel sent to Wal-Mart on July 23, 2013. Neither Dr. Kuruvanka nor the Eni defendants had any involvement in that case and Wal-Mart has had no involvement in this present case. No party to the present case ever received a Notice of Claim letter; thus, Mr. Kovaly is likely relying on the Notice of Claim provided to Wal-Mart as notice to the defendants in this case. Although notice to one has been repeatedly held to be notice to all parties of a suit, Mr. Kovaly seeks to extend this concept to parties of independent lawsuits. The notice Mr. Kovaly provided to Wal-Mart was in an entirely separate and independent suit than the present suit; therefore, that notice is not sufficient to provide constructive notice to Dr. Kuruvanka. Mr. Kovaly litigated that matter through to conclusion at the trial court level and never attempted to join or include Dr. Kuruvanka in that suit, as a party. Should Dr. Kuruvanka have been joined to the Wal-Mart suit, he does not dispute that the notice requirement (but not the medical records authorization requirement) would have been satisfied; however, that is not how Mr. Kovaly chose to proceed. Instead, he filed a separate and independent suit that did not include Wal-Mart and failed to provide any of the defendants in the present suit 14 with any pre-suit notice. Because Mr. Kovaly failed to provide pre-suit notice to any defendants in this case, the statute of limitations was not tolled. CONCLUSION AND PRAYER The trial court did not err in granting Dr. Kuruvanka’s Motion for Summary Judgment because Mr. Kovaly’s suit is barred by the Statute of Limitations. The statute of limitations for a Chapter 74 claim is 2 years. Limitations can be tolled for 75 days only with proper notice and a statutorily compliant authorization. Mr. Kovaly failed to provide a statutorily compliant authorization with his pre-suit notice and therefore failed to toll the limitations. Mr. Kovaly filed his lawsuit after the expiration of the statute of limitations. Therefore, Dr. Kuruvanka was entitled to summary judgment on all claims asserted by Mr. Kovaly. Wherefore, Appellees Tulsidas Kuruvanka, M.D. and Northwest Houston Cardiology, P.A. pray this Court AFFIRM the Trial Court’s order granting Appellees Motion for Summary Judgment, grant Appellees costs of appeal and grant them all other appropriate relief. 15 Respectfully submitted, EDWARDS & ASSOCIATES __/s/ James B. Edwards_____________ James B. Edwards SBN: 06453600 jbe@malpracticedefense.com Stacy T. Garcia SBN: 24085323 stg@malpracticedefense.com 12603 Southwest Freeway, Suite 200 Stafford, Texas 77477-3809 Phone: 281-277-4940 Fax: 281-277-4974 ATTORNEYS FOR APPELLEES TULSIDAS KURVANKA, M.D. AND NORTHWEST HOUSTON CARDIOLOGY, P.A. 16 CERTIFICATE OF SERVICE I hereby certify the foregoing instrument has been sent to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this 3rd day of December, 2015. Steven R. Davis Joel Sprott Davis & Davis Kristin Blanchard 440 Louisiana St., Suite 1850 Sprott, Newsom, Lunceford, Houston, Texas 77002 Quattlebaum & Messenger steve@davis-davislaw.com 2211 Norfolk Street Phone: 713-781-5200 Houston, Texas 77098 Fax: 713-781-2235 sprott@sprottnewsom.com Appellant’s Trial Counsel Phone: (713) 523-8338 Fax: (713) 523-9422 Iain Simpson Appellees’ Trial Counsel Simpson, P.C. 1333 Heights Blvd., Suite 102 Diana L. Faust Houston, Texas 77008 Cooper & Scully, PC iain@simpsonpc.com 900 Jackson Street, Suite 100 Phone: 281-989-0742 Dallas, Texas 75202 Fax: 281-596-6960 Diana.faust@cooperscully.com Appellant’s Appellate Counsel Phone: (214) 712-9500 Fax: (512) 712-712-9540 Appellees’ Appellate Counsel ____/s/ James B. Edwards_________ James B. Edwards 17 Certificate of Compliance I hereby certify that the foregoing Appellant’s Brief is computer generated, that those portions required to be counted by Rule 9.4(i)(1), Texas Rules of Appellate Procedure, contain _3,633___ words according to the word-count function of the application used to create it, and that it complies with the word- count requirements of Rule 9.4, Texas Rules of Appellate Procedure. It is printed in 14-point typeface, except for the footnotes, which are in 12-point typeface. ___James B. Edwards_________________ James B. Edwards 18 APPENDIX 19 3 4 5 6 7 35 36 37 38 39 40 41 42 43 44 30 31 32 33 34