courts apply same standard ofreview to "non-findings"
How later courts described this case
- courts apply same standard ofreview to "non-findings"
- "Wisconsin, like the majority of states, holds mentally disabled defendants to the reasonable person standard of care."
- "In the face of these admitted facts, a failure to find any negligence on Cropper's part is against the great weight and preponderance of the evidence."
- "To establish cause in fact, or 'but for' causation, Gil-Perez must show that Southwest Key's negligence was a substantial factor in bringing about his injury and without which no harm would have been incurred."
Written by the judges who cited it.
The opinion
ACCEPTED
01-15-00774-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/8/2015 6:53:36 PM
CHRISTOPHER PRINE
CLERK
No. __________________
FILED IN
IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS
9/8/2015 6:53:36 PM
CHRISTOPHER A. PRINE
Clerk
IN RE PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER,
AN INCAPACITATED ADULT,
Relator.
Original Proceeding from the 269th District Court,
Harris County, Texas, Trial Court Cause No. 2009-40925
Honorable Dan Hinde, Presiding
RELATOR’S RECORD IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
VOLUME III OF III
TERRY & THWEATT, P.C. BECK REDDEN LLP
L. Lee Thweatt Russell S. Post
State Bar No. 24008160 State Bar No. 00797258
lthweatt@terrythweatt.com rpost@beckredden.com
Joseph D. Terry Constance H. Pfeiffer
State Bar No. 24013618 State Bar No. 24046627
jterry@terrythweatt.com cpfeiffer@beckredden.com
One Greenway Plaza, Suite 100 William R. Peterson
Houston, TX 77046-0102 State Bar No. 24065901
(713) 600-4710 wpeterson@beckredden.com
(713) 600-4706 (Fax) Parth S. Gejji
State Bar No. 24087575
pgejji@beckredden.com
1221 McKinney, Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 (Fax)
COUNSEL FOR RELATOR
INDEX TO RELATOR’S MANDAMUS RECORD
Page
Volume I
Plaintiffs’ Second Amended Petition (April 25, 2011) ...................................000001
Order Granting Leave to File Third Party Action (August 19, 2011) .............000010
Defendants’ Combined Third Amended Answer (October 5, 2011)...............000011
Second Amended Plea in Intervention (October 12, 2011) .............................000020
Defendants’ Motion for Leave to File Third Amended Answer & First
Amended Answer to Plea in Intervention, and Response to Plaintiff &
Intervenor’s Joint Motion to Strike (October 17, 2011) ..................................000029
Order Granting Leave to File Pleading Signed (October 17, 2011) ................000046
Plaintiff and Intervenor’s Joint Motion for Entry of Final Judgment
(November 18, 2011) .......................................................................................000047
Response to Plaintiff and Intervenor’s Joint Motion for Entry of Final
Judgment (December 13, 2011) .......................................................................000079
Plaintiff’s Brief in Support of Motion for Judgment (December 15, 2011) ....000096
Volume II
Intervenor’s Brief in Support of Motion for Judgment Based Upon
Jury Award (January 10, 2012) ........................................................................000148
Defendants’ Response to Plaintiff Wagner’s Brief in Support of
Motion for Judgment (January 11, 2012) ........................................................000169
Final Judgment (January 13, 2012)..................................................................000249
Motion for Judgment Notwithstanding the Verdict or In the
Alternative, Motion for New Trial (February 13, 2012) .................................000252
Volume III
Supplement to Defendants’ Motion for Judgment Notwithstanding the
Verdict Or, In the Alternative, Motion for New Trial (March 5, 2012) ..........000297
Intervenor’s Response to Defendants’ Motion for Judgment
Notwithstanding the Verdict Or, In the Alternative, Motion for New
Trial (March 6, 2012) .......................................................................................000312
Plaintiff’s Response to Defendants’ Motion for JNOV, New Trial and
To Modify, Correct or Reform the Judgment (March 7, 2012) .......................000322
Intervenor’s Brief on Defendant’s Challenge to the Factual
Sufficiency of the Jury Verdict that Esperanza Arzola Was Not
Negligent (March 16, 2012) .............................................................................000410
Plaintiff’s Brief on Jury’s Failure to Find Negligence in Question 1
(March 16, 2012)..............................................................................................000419
Defendants’ Brief on Jury’s Failure to Find Negligence on Esperanza
Arzola (March 23, 2012)..................................................................................000471
Order Setting Aside Final Judgment (March 27, 2012) ..................................000480
Motion for Reconsideration of Order Granting New Trial (April 10,
2012) ................................................................................................................000481
Defendants’ Response to Plaintiff’s Motion for Reconsideration of
Order Granting New Trial (May 1, 2012)........................................................000497
Reply in Support of Motion for Reconsideration of Order Granting
New Trial (May 3, 2012) .................................................................................000507
Order Denying Plaintiffs’ Motion for Reconsideration of Order
Granting New Trial (May 4, 2012) ..................................................................000515
Order Denying Motion to Dismiss (August 23, 2012) ....................................000516
Notice of Appeal of Anthonia Uduma (August 24, 2012)...............................000517
ii
Mandate ............................................................................................................000520
Hearing transcript of Pretrial Motions, Voir Dire, Statement of Facts
from October 17, 2011......................................................................................000522
Hearing transcript of Jury Trial from October 18, 2011 ..................................000875
Hearing transcript of Jury Trial from October 19, 2011 ..................................001195
Hearing transcript of Motion for Entry of Judgment from
January 13, 2012 ............................................................................................0001417
Verification
Respectfully submitted,
BECK REDDEN LLP
By: /s/ Russell S. Post
Russell S. Post
State Bar No. 00797258
rpost@beckredden.com
Constance H. Pfeiffer
State Bar No. 24046627
cpfeiffer@beckredden.com
William R. Peterson
State Bar No. 24065901
wpeterson@beckredden.com
Parth S. Gejji
State Bar No. 24087575
pgejji@beckredden.com
1221 McKinney, Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 (Fax)
TERRY & THWEATT, P.C.
L. Lee Thweatt
State Bar No. 24008160
iii
lthweatt@terrythweatt.com
Joseph D. Terry
State Bar No. 24013618
jterry@terrythweatt.com
One Greenway Plaza, Suite 100
Houston, TX 77046-0102
(713) 600-4710
(713) 600-4706 (Fax)
Counsel for Relator
iv
CERTIFICATE OF SERVICE
I hereby certify that on September 8, 2015, a true and correct copy of the
above and foregoing Relator’s Record in Support of Petition for Writ of
Mandamus was forwarded to all counsel of record by the Electronic Filing Service
Provider, if registered, otherwise by email, as follows:
Jim Plummer Michael D. Hudgins
Amar Raval Nicole James Petrelli
PLUMMER & KUYKENDALL THE HUDGINS LAW FIRM, P.C.
4203 Montrose Blvd., Suite 270 24 Greenway Plaza, Suite 2000
Houston, TX 77006 Houston, TX 77046
jplummer@plummerlawyers.com mhudgins@hudgins-law.com
araval@plummerlawyers.com npetrelli@hudgins-law.com
Counsel for Real Parties in Interest Counsel for Real Parties in Interest
/s/ Russell S. Post
Russell S. Post
v
NO. 2009-40925
PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT
OF JENNI WAGNER, AN §
INCAPACITATED ADULT, §
Plaintiff, §
§
v. § HARRIS COUNTY, T E X A S
§
FOUR J'S COMMUNITY LIVING §
CENTER, INC., ANTHONIA UDUMA, §
AND GODFREY UDUMA, §
Defendants. § 269TH JUDICIAL DISTRICT
SUPPLEMENT TO DEFENDANTS' MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR,
IN THE ALTERNATIVE. MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants, Four J's Community Living Center, I c. and Anthonia Uduma,
supplement their Motion for Judgment Notwithstanding the Verdict or, In the Alternative,
Motion for New Trial, as follows:
Defendants supplement their Motion for Judgment Notwithstanding the Verdict or,
In the Alternative, Motion for New Trial with the attached evidence:
1. Revised affidavit of Ms. Debra Little Smith;
2. Affidavit of Ms. Marianne Reat, Custodian of Records for Texas
Department of Aging and Disability Services, with attached Contract
#001007724.
Supplement to Motion for Judgment Notwithstanding
the Verdict or, In the Alternative, Motion for New Trial 1
000297
Respectfully submitted,
PLUMMER & KUYKENDALL
James C. Plummer
Texas Bar No. 16075700
4203 Montrose Boulevard, Suite 270
Houston, Texas 77006
Telephone 713 .522.2887
Facsimile 713 .522.3605
THE HOLMAN LAW FIRM, P .C.
sfDavid W. Holman
David W. Holman
Texas Bar No. 09902500
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Telephone 713 .400.4840
Facsimile 713.400.4841
Attorneys for Defendants
Supplement to Motion for Judgment Notwithstanding
the Verdict or, In the Alternative, Motion for New Trial 2
000298
CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2012:
This document was filed via Texas.gov electronic filing system, and the required
number of copies was forwarded to the Court by regular mail or express mail.
This document was forwarded to the following via Texas.gov electronic filing system
and/or electronic mail:
Attorneys for Plaintiff
Mr. L. Lee Thweatt Mr. Russell S. Post
Mr. Joseph D. Terry Ms. Constance H. Pfeiffer
TERRY & THWEATT, P.C. BECK, REDDEN & SECREST, LLP
One Greenway Plaza, Suite 100 1221 McKinney, Suite 4500
Houston, Texas 77046 Houston, Texas 77010-2010
Telephone 713.600.4710 Telephone 713.951.3700
Facsimile 713.600.4706 Facsimile 713.951.3720
Attorneys for Intervenor
Mr. Shelton Sparks
Ms. Tiffany Harvey
SHELTON SP ARKS & ASSOCIATES
706 Cordell Street
Houston, Texas 77009
Telephone 713.862.5533 Facsimile 713.862.4913
s/David W. Holman
David W. Holman
Supplement to Motion for Judgment Notwithstanding
the Verdict or, In the Alternative, Motion for New Trial 3
000299
APPENDIX
Tab Document
A Affidavit of Debra Little Smith (revised)
B Affidavit of Ms. Marianne Reat, Custodian of Records for Texas
Department of Aging and Disability Services, with attached Contract
#001007724
Supplement to Motion for Judgment Notwithstanding
the Verdict or, In the Alternative, Motion for New Trial 4
000300
A
Affidavit of Debra Little Smith (revised)
000301
.......\~'''
•~, ;JEXAS
~~Department of Aging COMMISSIONER
~"" and Disability S.ervices Chris Traylor
STATE OF TEXAS §
COUNTY OF TRAVIS §
Before me, the undersigned authority, on this day appeared Debra Little Smith, who being by me
duly sworn, deposed as follows:
1. ''My name is Debra little Smith. I am of sound mind and capable of making this
affidavit. I have personal knowledge of th~ facts stated herein and they are true
and correct.
2. I am the Manager for Waive.r Survey and Certification, which is a unit within
Regulatory Services at the Texas Department of Aging and Disability Services.
My job duties include managing tbe unit that certifies Home and Community-
based Services (HCS) and Texas Horne Living (TxHmL) contracts. RCS and
TxHmL are home aud community-based services waiver programs for persons
with intellectual or developmental disabilities adopted in accordance with Section
1915(c) of the federal Social Security Act.
3. Pursuant to my authority, I have investigated the status of Four J's Community
Living Ce.nter, Inc. Contract # 001007724 to determine its certification history.
This is the HCS contract that serves waiver contract area #5, which inelude·s
Harris County.
4. From that investigation, I found that this Four J's HCS contract has been certified
continuously by the State of Texas since the contract was issued on March 12,
2004. This means this Four J's HCS contra.ct was certified by the State of Texas
on September 4, 2008, and this HCS contract is certified by the State of Texas
today.
Notary without Bond
SWORN TO AND SUBSCRIBED before me on this the / ~ay o.f ~' 2012.
~~
T~
Notary Public, State of .
. '·
70l"W. 51stSt. * P.O. Box 149030 *Austin, Texas 78714-9030 * (512)438-3011 * www.dads,slil.te.i:ic.us
An Equ.?I Opporiunity EmplO'!f!t and Provider
000302
B
Affidavit of Ms. Marianne Reat,
Custodian of Records for Texas Department of Aging
and Disability Services,
with attached Contract #001007724
000303
STATE OF TEXAS §
§ DOCUMENT CERTIFICATION
COUNTY OF TRAVIS §
Before me, the undersigned authority, en this day appeared Marianne Reat, who being by me duly
.sworn, deposed as follows:
'"My name is Marianne Real. I am of sound mind, capable of making this affidavit, and personally
.acquainted with the 'facts herein stated. I am the Managing Attorney, Litigation Services Unit, Leg·a1
Services S~ctiqn for the Texas Department of Aging and Disability Services (DADS). The
:Commissioner of the Texas Department of Aging and Disability Services has delegated to me the
authority to serve as custodian of the documents referred to herein below for the Texas Department
of Aging and Disability Services.
Pursuant to this authority, I have attached hereto a true and correct copy of I pages:
Contract Records for
Four J's Community Living Centers, Inc.
Contract# 001007124
The Texas Department of Aging and Disability Ser\iices keeps the at'tached records in the regular
course of business. It was fn the regular course of business for an employee or representative of
the Texas Department of Aging and Disability Services or its predecessor agency, with knowledge of
the act or event, to make the record or to transmit information thereof to be.included in sucn re.cord,
and the record was made at or near the. time or reasonably soon thereafter; or, in the case of
documentation given to DADS by another entity; It was in the regular course of business for an
employee or representative ·of the Texas Department of Aging and Disability Serviees or its
predecessor agency to receive the. r~cord .and place it In files of the. Department. The attached
re·cords are exact dt1plicates of the originaJ, except where information may have been deleted or
redacted pursuant to -the requirements of law."
.
~!/}1tU1 d.~·/1--vv.~-~ i
( /..!l_tl-f.
Marianne Reat
Custodian of Records
SWORN TO ANO SUBSCRIBED before me on this the .2nd day of February, 2012.
LAURA MULL
Nota.ry Public, State of Texas
~otary Public
STATE Or TEXAS
Commission Exp.11·02·2014
' Notary without Bond
000304
Medicaid Provider Agreement
For The Provision Of
HCS Program Services
Component Number 86V Vendor Number 001007724
The Texas Department of Mental Health and Mental Retardation or its successor (the Department)
and Four J's Community Living Centers, Inc. (the Program Provider) hereby enter into this
.Medicaid Provider Agreement for the Provision of Horne and Community-Based Services (HCS)
Program Services (this Agreement) for the considerations set forth herein.
This Agreement is effective the 12th day of March, 2004, and will continue in force until terminated
in accordance with the tenns of this Agreement.
I.
The Department is the Texas state agency responsible for operating the HCS Program administered
under §1915(c) of the Social Security Act.
The Program Provider is provisionally certified or ce1tified by the Depaitment as a qualified HCS
Program provider to provide HCS Program services to individuals enrolled by the Depaitmentin the
HCS Program (Individuals) residing in those counties within the Department's Waiver Contract Area
5 (WCA 5) that ai·e set forth under Vendor# 001007724in the Depaitment' s Automated Enrollment
and Billing System (the counties served).
II.
The Program Ptovider agrees to:
A. Provide the following HCS Program service components, defined in Attachment A, as authorized
by each Individual's Individual Plan of Care (IPC):
1) Case Management;
2) Counseling and Therapies;
3) Nursing Care;
4) Residential Assistance;
5) Day Habilitation;
6) Supp01ted Employment;
7) Adaptive Aids;
8) Minor Home Modifications;
9) Dental Services; and
10) Respite Care;
to Individuals, up to the number set forth under Vendor# 001007724, CARE Screen# C70, in the
Department's Automated Enrollment and Billing System. These service components will be
provided in accordance with applicable state laws and rnles, including but not limited to the 25
Texas Administrative Code (I'AC) Chapters 409 and 419; applicable federal laws and regulations,
including but not limited to the Code of Federal Regulations (CfR) Title 42, Parts 440, 441, 455 and
456;
B. Provide Case Management using only one or more persons employed by, not contracting with,
the Program Provider;
C. Maintain continuous certification from the Depaitment as a qualified HCS Program provider;
2004
000305
HCS Provider Agreement
Page2 of7
D. Keep its application for participation in the HCS Program current by informing the Department
in writing of any changes to the information contained in its application, including but not limited
to, the counties served, changes in ownership or control, federal tax identification number, and
addresses, at least ten days prior to making such changes;
E. Upon request by the Department, execute, submit to the Department and comply with the
Department's computer security agreement;
"
F. Accept the cm1ent HCS reimbursement rate or the rate as it may hereafter be amended, as
payment in full for perfo1mance under this Agreement, and to make no additional charge to the
Individual, any member of the Individual's family, or any other source, including a third party payor,
except as allowed by federal and state laws, rules, regulations and the Medicaid State Plan. In
addition, the Program Provider agrees that, in accordance with 42 CFR §433.145 and Human
Resources Code §32.033, an Individual assigns to the Depaitment his or her rights to payments and
recovery from third parties;
G. Manage an Individual's personal funds at the request of the Individual. This includes
maintaining a financial account for Individuals who entrust personal funds to the Program Provider
and maintaining a separate detailed record of all deposits and expenditures for each Individual. The
Individuals' personal funds will not be commingled with the Program Provider's funds;
H. Submit claims for payment, including electronic claims, in accordance with billing guidelines
and procedures promulgated by the Department. The Program Provider certifies that infmmation
submitted regarding claims will be tlue, accurate, and complete, and that such infmmation can be
verified by source documents from which data entry is made by the Program Provider. Further, the
Program Provider understands that payment of the claim will be from federal and state funds and that
any falsification or concealment of a material fact may be prosecuted under federal and state laws;
I. Allow the Depmtment to adjust payments made to the Program Provider, without notice, for
plior overpayment or underpayment to the Program Provider, except as provided in paragraph II.J;
J. Refund to the Department any "ove1payment" (as defined in 42 CFR §433.304) to the Program
Provider. Such refund will be made within 60 days following the Program Provider's discovery of
the overpayment or the Program Provider's receipt of a notice of such discovery from the
Depmiment, whichever is sooner;
K. Cooperate with and assist the Depaitment and any state and federal agency charged with the duty
of identifying, investigating, sanctioning, or prosecuting suspected fraud and abuse;
L. Disclose information on ownership and control, information related to business transactions and
information on persons convicted of crimes in accordance with 42 CFR Part 455, Subpart B, and
provide such information on request to the Department, the Texas Department of Human Services
or its successor (TDHS), Texas Health and Human Services Commission (HHSC), the Texas
Department of Health or its successor (TDH), the Texas Depruiment of Family and Protective
Services (DFPS), the Texas Attorney General Medicaid Fraud Control Unit (AG Medicaid Fraud),
or the United States Department of Health and Human Services (USHHS);
2004
000306
HCS Provider Agreement
Page3 of7
M. Provide the following information to the Department, through the Department's Automated
Enrollment and Billing System, each calendar quarter and when the information changes:
1) The Program Provider's business address and telephone number;
2) The name of the Program Provider's chief executive officer;
3) A telephone number at which the Program Provider's chief executive officer or designated
representative can be reached during and after normal business hours; and
4) The name, if any, physical address and telephone number of all residences of Individuals in
which HCS Program services are provided and in which the Program Provider or the
residential assistance provider hold a property interest;
N. As provided by 42 CFR §431.107, keep any records necessary to disclose the extent of services
provided by the Program Provider to Individuals (including Individuals' clinical records) and, on
request, provide to the Depai1ment, HHSC, AG Medicaid Fraud, or USHHS, any such records and
any information regarding payments claimed by the Program Provider under this Agreement;
0. Provide any information, records, or copies thereof, required by this Agreement at no cost to the
state or federal authority requesting such information or records;
P. Keep all records required by paragraph II. N. of this Agreement until one of the following occurs,
whichever is the latest:
1) six years elapse from the date the records were created;
2) any audit exception or litigation involving the records is resolved; or
3) for records concerning an individual under 18 years of age, the individual becomes 21
years of age.
Q. Allow representatives of the Department, or the local mental retm·dation authority as its designee,
HHSC, TDHS, TDH, DFPS, AG Medicaid Fraud, and USHHS, full and free access to the Program
Provider staff, Individuals, and all locations where the Program Provider delivers HCS Program
services;
R. Allow the AG Medicaid Fraud and HHSC to conduct interviews of the Program Provider's
employees; subcontractors and their employees, witnesses, and Individuals without the Program
Provider's representative or the Program Provider's legal counsel present unless the person
voluntarily requests that the representative be present. The Program Provider's employees,
subcontractors and their employees, witnesses, and Individuals must not be coerced by the Program
Provider or the Program Provider's representative to accept representation by the Program Provider
and the Program Provider agrees that no retaliation will occur against a person who denies the
Program Provider's offer of representation. Nothing in this Agreement limits a person's right to
counsel of his or her choice. Requests for interviews are to be complied within the form and manner
requested. The Program Provider wiJI ensure by contract or other means that its employees and
subcontractors over whom the Program Provider has control cooperate fully in any investigation
conducted by the AG Medicaid Fraud and/at HHSC. Subcontractors are those persons or entities
who provide medical goods or services for which the Program Provider bills the Medicaid program
or who provide billing, administrative, or management services in connection with Medicaid-covered
services;
2004
000307
HCS Provider Agreement
Page 4of7
S. Comply with applicable state laws and mies, including but not limited to 25 TAC Chapters 409
and 419, and 1 TAC Chapter 355, Subchapter F; applicable federal Jaws and regulations, including
but not limited to 42 CFR Parts440, 441, 455, and 456, and 45 CFR Parts 46, 80, 84, 90, and 91;
T. Comply with the HCS Service Definitions & Billing Guidelines and any amendments thereto,
and the HCS Provider Manual and any amendments thereto, after such manual is provided to the
Program Provider;
U. Comply with the Civil Rights Act of 1964, §504 of the Rehabilitation Act of 1973, the
Immigration Reform and Control Act of 1986, and the Americans with Disabilities Act of1990;
V. Comply with the Texas Health and Safety Code, §85.113 relating to workplace and
confidentiality guideli_nes regarding AIDS and HIV;
W. Comply with Executive Order (E.O.) 11246, Equal Employment Opportunity, E.O. 11375,
Amending Executive Order No. 11246, Relating to Equal Employment Opportunity, and 41 CFR Part
60, Office ofFederal Contract Compliance Programs, Equal Employment Opportunity, Department
of Labor;
X. Comply with 42 United States Code (USC) §7401 et seq., the Clean Air Act, and 33 USC §1251
et seq., the Federal Water Pollution Control Act, and all applicable standards, orders and regulations
issued pursuant to those acts;
Y. Comply with 31 USC §1352, Limitations 011 Use of Appropriated Funds to Influence Certain
Federal Contracting and Financial Transactions, and 45 CFR Pait 93, New Restrictions 011
Lobbying. In accordance with these provisions, the Program Provider will: (a) execute and submit
to the Department, Form 2047, Ce11ification Regarding Federal Lobbying, upon execution of this
Agreement; (b) execute and file with the Deprutment, Standard Fo1m-ILL, Disclosure Regarding
Lobbying, if applicable; and (c) require compliance with 31 USC §1352 and.45 CFR Patt 93 by
participants in lower tier transactions, if applicable;
Z. Comply with 45 CFR Prut 76, Govemmemwide Debamzent and Suspension (Nonprocurement)
and Govemme1itwide Requiremellts for Dmg-Free Workplace (Grants). In accordance with these
regulations, the Program Provider will: (a) execute and submit to the Department, Form 2046,
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier
Covered Transactions upon execution of this Agreement; (b) provide written notice to the
Department if at any time the Program Provider learns that its ce1tification is e1TOneous when
submitted or has become erroneous by reason of changed circumstances; and (c) require compliance
with 45 CFR Part 76 by participants in lower tier covered transactions;
AA. Comply with the Hea1th Insurance Pmtability and Accountability Act of 1996 (HJPAA);
specifically, the Standards for Privacy of Individually Identifiable HeaJth Information, 45 CFR Parts
160 and 164, Standards for Electronic Transactions, 45 CFR Parts 160 and 162, and Secmity
Standards, 45 CFR Parts 160, 162, and 164;
BB. Comply with all HCS Policy Letters promulgated by the Department that are received by the
Program Provider after the effective date of this agreement;
CC. Notify the Deprutment in writing at least 10 days prior to declaring bankruptcy; and
2004
000308
HCS Provider Agreement
Page 5 of7
DD. Rep01t to the Department, through the Department's Automated Enrollment and Billing
System, within 30 days following the end of each calendar month, the reportable data, by type, for
that calendar month. The types of reportable data are descdbed in Attachment B.
III.
By execution of this Agreement, the Program Provider certifies and agrees:
A. That the Program Provider is cu1Tent in its payment of any required Texas franchise tax. If the
Program Provider becomes delinquent in the payment of .its Texas franchise tax during the term of
this Agreement, payment to the Program Provider may be withheld by the Comptroller of Public
Accounts until such delinquency is remedied;
B. That; under Texas Family Code §231.006, the Program Provider is not ineligible to receive the
payments specified in this Agreement (Texas Family Code §231.006 states that a child supp01t
obligor who is more than 30 days delinquenfin paying child support and a business entity in which
the obligor is a sole proprietor, prutner, shareholder, or owner with an ownership interest of at least
25% are not eligible to receive payments from state funds under a contract to provide property,
materials, or services, or receive a state-funded grant or loan.);
C. That the Program Provider has not been excluded or debmTed from participation in any state or
federal health care program, including any Title XVm (Medicare) or Title XIX (Medicaid) program,
under the provisions of §1128(a) or (b) of the Social Security Act [42 U.S.C.§1320a-7(a) or (b)) or
Executive Order 12549. The Program Provider will notify the Depaitment within 10 days of the date
it receives notice that any action is being taken against the Program Provider or any individual or
entity defined under the provisions of§ 1128(b)(8) or (15) which could result in exclusion of the
Program Provider from a Medicaid Program; and
D. That the Program Provider will provide wdtten notice to the Department if, during the te1m of
this Agreement, the Program Provider learns that any of the certifications made by the Program
Provider in this Agreement are or have become inaccurate.
IV.
The Department agrees to:
A. Pay the Program Provider, in accordance with applicable state and federal laws, rules, and
regulations, the cmTent HCS reimbursement rate or the rate as it may hereafter be amended, for HCS
Program services provided to hldividuals; and
B. Provide an administrative hearing to the Program Provider, in accordance with state and federal
laws, rules, and regulations, concerning an adverse action taken by the Department.
v.
The Department and the Program Provider mutually agree that:
A. Payment by the Department to the Program Provider under this Agreement is contingent upon
the Program Provider's maintaining certification as a qualified HCS Program provider, availability
of appropriated funds and federal financial participation, operation of the HCS Program by the
Department, and the Program Provider's compliance with the tenns of this Agreement. No payment
2004
000309
HCS Provider Agreement
Page 6 of7
will be made to the Program Provider under this Agreement for HCS Program services provided to
persons who are not eligible for or enrolled by the Depaitment in the HCS Program at the time such
services are delivered;
B. This Agreement is subject to all state and federal laws, mies, and regulations relating to fraud
and abuse in health care and the Medicaid Program;
C. This Agreement may be terminated:
1) by agreement between the Department and the Program Provider;
2) by the Program Provider upon sixty days wdtten notice to the Depruiment of the Program
Provider's intent to terminate this Agreement;
3) by the Department for reasons set forth in federal or state laws, rnles or regulations;
4) by the Department if the Program Provider fails to comply with the te1ms of this Agreement,
including but not limited to failure of the Program Provider to maintain ce1tification as a
qualified HCS Program provider;
5) by the Department or the Program Provider, subject to the equitable settlement of their
respective obligations, if federal or state laws, rules, or regulations are enacted, amended,
repealed, or judicially interpreted so as to render the fulfillment of this Agreement by either
party unfeasible or impossible and the Department and the Program Provider cannot agree
upon amendments to this Agreement necessary to comply with such changes to laws, rules
or regulations;
6) by the Department if a cettification made by the Program Provider in this Agreement is false
or becomes inaccurate; or
7) by the Depa11ment for good cause;
D. The Department will notify the Program Provider in writing if the Department decides to
terminate this Agreement. The Department will provide the Program Provider an opportunity for
a heating to appeal the Department's decision to tetminate this Agreement. If the Program Provider
makes a timely request for a heating, the Depmtment will not terminate this Agreement pending sµch
hearing. If the final determination of a heating is favorable to the Depmtment, termination of this
Agreement will be effective on the date specified in the Depatiment's notice of te1mination or as
specified in the decision of the administrative law judge;
E. If the Department decides to temtinate this Agreement, the Depmtment will withhold payments
to the Program Provider under this Agreement in accordance with Texas Human Resources Code,
§32.034, as of the date specified for such withholding in the Department's notice of termination.
If the Program Provider requests a hearing to appeal the Department's decision to tetminate this
Agreement, and the final decision of the hearing is favorable to the Department or if the Program
Provider does not request a hearing, payments withheld under this paragraph will not be made to the
Program Provider;
F. The Deprutment may place payments due to the Program Provider under this Agreement on
vendor hold for reasons set fo11h in federal or state laws, mles or regulations, or if the Program
Provider fails to comply with the tetms of this Agreement;
G. Nothing in this Agreement will be constrned to require the Department to enter into a new
agreement with the Program Provider, or to renew or extend this Agreement;
2004
000310
HCS Provider Agreement
Page7 of7
H. If the Department amends·the HCS Service Definitions & Billing Guidelines, the RCS Bitling
and Payment Review Protocol or the HCS Provider Manual, it will notify the Program Provider of
such amendments. The Program Provider will ucknowledge the receipt of such amendments t>y
executing and submitting the fonn provided by the Department by certified mail to the address
indicated on sucb fonn. The Department may place payments due to the Program Provider under
this Agreement on v.endor hold as provided in paragraph V.F. of this Agreement if the Program
Provider fails to ex~ute and submit such fonn within twenty (20) days of the date of the notice;
I. Assignment by the Program Proviaer of this Agreement must be in accordance with 25 TAC
§419.710;
J. In the event any provision o.f this Agreement becomes unenforceable or void, such will not
invalidate any other provision of 1his Agreement;
K. The venue for miy cause of action initiated by the Department or the Program Provider related
to this Agreement will be Trnvis County,_Texas; and
L. Any notice, f;t.C:knowlec1gment, or disclosure required to be given to the Department by the
Ptogram Provider under this Agreement will be delivered in person or by certified mail, retum
-receipt requested, to the following person and address:
Associate Director for Vendor Operations, Medicaid Administration
Texas Department of Mental Health and Mental Retardation
P.O. Box 12668
Austin, Tex.as 78711-2668
Any ·notice 1·equired to be given to the Program Provider by the Department ~nder this Agreement
will be in writing, ta, the most current b1,1siness address provided by the Program Provider on its
-application for participation in the HCS Program and, except the notice .referenced in p,aragraph
V.H., delivered in person. or by certified mail, return receipt requested;
TEXAS DEPARTMENT OF MENTAL
HEALTHANDMENTALRE A1l
b, &if
(Date) (Authorize ignature) (Date)
•<N:~i;mrJ·for
Vendor Operations
Medicaid Administration trN THo IJJ ~-
(Typ:e/Print Name)
.\1 ~ t< Mt\--
t\~.ck91
(Titl.e)
2004
000311
Filed 12 March 6 P8:26
Chris Daniel - District Cleric
Harris County
ED101 J016163934
By: Chariie R. Tezeno
CAUSE NO. 2009-40925
WYLETTE TAYLOR, AS GUARDIAN § IN THE DISTRICT COURT
OF DERRICK LEON JAMES, an §
Incapacitated Adult §
Intervenor, §
§
v. § 269TH JUDICIAL DISTRICT
§
§
FOUR J'S COMMUNITY LIVING §
CENTER, INC., AND ANTHONIA §
UDUMA §
Defendants. § HARRIS COUNTY, TEXAS
INTERVENOR'S RESPONSE TO DEFENDANT'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A
MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Intervenors, by and through their attorney of record, SHELTON
SPARKS, who ask this Court to deny Defendant's Motion to sign a Judgment Notwithstanding
the Verdict or Motion for New Trial.
A. INTRODUCTION
1. Intervenor is An Incapacitated Adult male and Wylette Taylor is his Guardian.
2. Defendant, Four J's Community Living Center, Inc. is a corporation authorized to
do business in the State of Texas.
3. Defendant, Anthonia Uduma, is an individual who owns 100% of the stock in
Four J's Community Living Center, Inc. and is the property owner at 16355 Beretta Court,
Houston, Texas 77489.
4. Intervenor sued Defendant, Anthonia Uduma, for Premises Liability in failing to
correct known dangerous conditions on the property owned by her that she maintained
000312
control over that the jury found were the proximate causes of the injuries suffered by Tanya
James, Deceased, prior to her death.
5. Intervenor sued Defendant, Four J's Community Living Center, Inc., for
negligence in failing to provide Tanya James with adequate supervision during the fire when
they knew she needed help hand over hand to remove her from an emergency and for failing
to ensure their caretaker was adequately trained in the proper fire and emergency evacuation
protocols.
B. FACTS
6. After the trial on the merits, the court submitted this case to the jury; the jury
returned a verdict for Intervenor. A copy of the Court's Charge reflecting the answers of the
jury is attached to this motion as Exhibit A.
7. On January 13, 2012, this Court entered Final Judgment. A copy of the Final
Judgment is attached as Exhibit B.
C. ARGUMENTS AND AUTHORITIES
8. The court should not grant a Motion for Judgment Notwithstanding the Verdict
unless a direct verdict would have been proper, Tex. R. Civ. P 301. Accordingly, the facts of
this case as presented by the evidence did not warrant a directed verdict and the court
properly submitted the case to the jury. The Court should view a Judgment Notwithstanding
the Verdict under a No-Evidence Standard, meaning we credit evidence favorable to the jury
verdict if reasonable juror could and disregard contrary evidence unless reasonable juror
could not. Tanner v. Nationwide Mut. Fire Ins. Co. 289 S. W.3d 828, 830 (Texas 2009).
9. The Court should not disregard the jury's answer to a question unless there is no
evidence to support it. Tiller v. Medurro, 121, S. W.3d. 709, 713 (Tex. 2003); Wal-Mart
Stores, Inc. v. Miller, 102 S. W.3d. 706, 709 (Tex. 2003). If more than a Scintilla of Evidence
2
000313
supports the finding, the court cannot disregard the jury's answer to the question. Mancorp,
Inc. Culpepper, 802 S. W.2d 226, 228 (Tex. 1990).
10. The Defendants are hereby requesting the Court to disregard the jury's answer to
Question No. 1 regarding their findings to whether Esperanza Arzola's acts were "negligent."
The jury found there were not.
11. Defendants allege her actions were criminal in nature and that she had committed
arson and as a result, there was no evidence Four J's or Mrs. Anthonia Uduma knew or
should have known she would commit arson. There was no foreseeability of whether
criminal conduct previously occurred on the premises. How recently and frequently the
criminal conduct occurred how similar the other criminal conduct was to the action on
August 4, 2008. Timberwalk Apartment, Partners Inc. v. Cain 972 S. W. 749, 756 (Tex.
1998).
12. The jury heard testimony from several witnesses that Mrs. Arzola was a very
troubled woman who had a history of committing violent and dangerous acts to herself and
others. The jury heard testimony from the caretaker that she was afraid of her and knew her
to have destroyed property on numerous occasions at Berretta Court. They heard testimony
about her aggressive actions when she needed her medication adjusted and how she had
attempted suicide on more than one occasion. They heard testimony about the Defendant's
knowledge of her being a smoker and how she had ready access to a cigarette lighter at the
Day Hab Center where she was taken to and brought back from by Defendant, Four J's five
(5) days a week.
13. The jury also heard testimony from Dr. Susan Gallagher that Mrs. Arzola may not
have had the requisite mental capacity to form the intent to commit the crime of arson.
14. The jury made the determination that the fire was not the proximate cause of the
injuries to Tanya James, but the fact of a lock being on the back door fire exit which was
dead bolted, and having the inexperienced employee who neglected to remove Tanya James
from the property was the proximate cause of her injuries.
3
000314
D. ANTHONIA UDUMA'S CONTROL OVER THE PROPERTY
15. There is sufficient evidence that was presented to the jury who found Anthonia
Uduma 40% liable for the damages to Tanya James.
16. The Court should not disregard the jury's answers to Question No. 1 unless there
is no evidence to support it. Wal-Mart Stores, Inc. v. Miller, 102 S. W.3d, 706, 709 (Tex.
2003). If more than a Scintilla of Evidence supports the finding, the Court cannot disregard
the jury's response to Question 1 and Question 2, holding Anthonia Uduma individually
responsible.
17. Over the course of the trial, the jury heard numerous witnesses testify that the
property located at 16355 Beretta Court was owned by Anthonia Uduma but leased to Four
J's Community Living Center, Inc. The jury was also aware that Mrs. Uduma was the sole
owner of the property and 100% owner of corporation.
18. The jury heard the testimony of several employees and vendors that Mrs. Uduma
maintained control over the Fire Safety Control System on the property and that she was the
only person who Omni Alarm System, Inc. dealt with or interacted with whenever there was
a system problem or when it was time to schedule the annual system evaluation. Anthonia
Uduma was the only person who made the decision on what type of system was in place on
the property.
19. The jury heard from two (2) former employees who stated that whenever there
was an in-service on fire safety, it was Mrs. Uduma who conducted the fire safety training.
They testified that she was the one who instructed them not to attempt to "leave out of the
back door, that it was dead bolted but to attempt to take Mrs. Wagner out of a window." This
is in spite of the fact that the back door with the deadbolt was a designated fire exit.
20. The jury heard from Mrs. Amuche Udemezue; that on numerous occasions she
was instructed to sign off on fire safety drill sheets showing the time period to evacuate the
residence was less than three (3) minutes when in reality it took longer and the time
incorrectly recorded.
4
000315
21. The jury heard from Mrs. Uduma that the reason there was no overhead sprinkler
system in the house was because they could document the time showing the residence could
be evacuated within three (3) minutes.
22. The jury also heard that whenever it was time for the Fire Marshal to inspect the
property, Mrs. Uduma insisted that she be the one to escort him throughout the house and
made sure the back door key to the deadbolt fire exit was available.
23. The jury found, per its response to Question 1 and Question 2, that Mrs. Anthonia
Uduma was negligent and determined her percentage of liability to be 40%. Far more than a
Scintilla of Evidence was present that Mrs. Uduma maintained control over the entrances and
exits of the property and the fire alarm system on the property. In fact, a preponderance of
evidence was submitted to the jury and they so found. Restatement (Second) Torts§ 360,
361 (1965). Johnson v. Endsley, 926 S.W. 284, 285 (Tex. 1996), Osti v. Saylor 991 S.W.2d
322 (Tex. App-Houston) [1st Dist.] 1999.
E. CHAPTER 74 APPLICABILITY
24. On the day of trial, the Court allowed Defendant to amend their pleadings to bring
forth their affirmative Defense of Chapter 74. The Court inquired into whether Four J's was
licensed, certified or chartered by the State of Texas. Defense counsel stated that they were
and the Court asked whether the verification was attached to its Motion for Leave?
Defendant stated it was not. Defendant further stated we will "get that for the Court this
morning and we certainly have testimony to bring, your honor."
25. When Intervenor closed its examination of Mrs. Anthonia Uduma, Defendant
reserved its questioning of her until its case in chief. Prior thereto, no questions or evidence
had been presented to the jury that Four J's or Mrs. Uduma were a healthcare provider.
5
000316
26. When Defendant, Anthonia Uduma, was on the stand in their case in chief, no
evidence was provided to the jury regarding Four J's being a licensed, certified, or chartered
by the State of Texas to provide healthcare.
27. The Defendants called two other witnesses who were employees of Four J's and
no testimony was provided by them to this jury about Four J's being a licensed healthcare
provider.
28. The MLIIA defines, "healthcare providers, any person, partnership, professional
association, corporation, facility, or institution duly licensed, certified, or registered, or
chartered by the State of Texas to provide healthcare ..... "
29. With regard to the assertion that a Defendant meets the definition of a healthcare
provider because it is certified by the State of Texas, the movant has the Burden of Proof to
present evidence to establish that it is certified by the State of Texas. City of Van Alstyne v.
Young 146 S. W.3d 846, 849 (Tex. App.-Dallas 2004).
30. If the record in the case contains no evidence to show Four J's Community Living
Center Inc. is duly licensed, certified or registered or chartered by the State of Texas to
provide healthcare, it cannot be determined whether it is a healthcare provider such that the
Chapter 74 protections are applicable. Brown v. Villegas, 202 S. W.3d 803 (Tex. App-San
Antonio 2006). In the absence of their evidence, we cannot determine whether Four J's meets
the definition of a healthcare provider. Id. 807.
31. Defendants allege in their motion, "Plaintiff and Intervenor presented no evidence
that Four J's was not a healthcare provider." This vailed attempt to shift the Burden of Proof
is contrary to the law. If Defendants wanted to avail themselves of the protection of Chapter
74, it was their responsibility to present evidence to establish they met the statutory
requirement of a healthcare provider. Id. City of Van Alstyne v. Young 849.
6
000317
32. This case had been on the court's docket for months and there had been two (2), if
not more prior trial settings in which this case had not been reached. During this time,
nothing had been filed by Defendants alleging they were healthcare providers and since the
issue was not raised prior to Defendants amending their pleadings, a week before trial,
Plaintiff and Intervenor had no ability to develop any discovery to determine whether
Defendant was licensed by the State of Texas.
33. The list in the current definition of "healthcare providers" is not exclusive, so to
determine if an entity qualifies as a healthcare provider, then it must be determined whether it
is duly licensed, certified, or registered or chartered by the State of Texas to provide
healthcare. Christus Health v. Beal, 240 S. W.3d (Tex. App.-Houston) /1st Dist.] 2007. The
record must contain evidence that Four J's is licensed by the State of Texas, it does not.
There is no testimony from Anthonia Uduma or any other corporate representative that it was
licensed. San Antonio Extended Medical care, Inc. v. Vasquez, 04-09-00546-cv (Tex Ca 4).
34. Defendants are incorrect in their assertion that the evidence establishes without
controversy that Four J's or Anthonia Uduma are healthcare providers under Chapter 74. In
open Court, Defendant's made a judicial admission that Anthonia Uduma was not healthcare
provider, and as such, waived his trial amended pleadings asserting that she was.
35. It is very controversial that Four J's and Anthonia Uduma are healthcare providers
and the record does not reflect that they are. Intervenor Objects to the Admission of the
Revised Affidavit of Mrs. Debra Little Smith being admitted. Intervenor Objects to the
Admissions of the Affidavit of Mrs. Marianne Reat being Admitted. The statements
contained therein are hearsay and involve controversial matters. It is an attempt by
Defendants to raise and introduce disputed issues of fact some 100 days after the verdict. In a
jury case, no evidence on a controversial matter shall be received after the verdict. Tex. R.
Civ. P. 270, The State of Texas v. Harrington; Et al 407 S.W.2d 467 (Tex. 1966).
7
000318
F. THE LEGAL SUFFICIENCY OF THE EVIDENCE RELATING TO TANYA
JAMES' PHYSICAL PAIN AND MENTAL ANGUIS
36. At the trial in this case, the jury was informed by testimony of several witnesses
that Tanya James had suffered severe bums over major portions of her body. The jury was
informed about the time between the paramedics arriving at the Berretta Court property and
the time she died at Memorial Herman Hospital. They were informed that she was
unconscious, and under heavy pain medication. They were also informed that she was
intubated, had IV's in her arms, and photos were also introduced into evidence showing her
condition in the hospital prior to her death.
37. Accordingly, it is clear that an award of mental anguish damages will survive a
legal sufficiency challenge when Plaintiffs have introduced direct evidence of the nature,
duration, and severity of their mental anguish, thus establishing a disruption in Plaintiffs
daily routine. Parkway v. Woodruff, 301 S. W.2d 434, 444, (Tex. 1995)
38. Such evidence whether in the form of the Plaintiffs own testimony, or that of
third parties or experts, is more likely to provide the fact finder with adequate details to
access mental anguish claims. Id. 444.
39. The jury determined that the time duration Tanya James suffered with the
physical and mental anguish as a result of the second and third degree bums over major
portions of her body was adequate for them to base their award on her damages.
40. The high degree of physical pain and mental anguish the jury was able to
adequate with her suffering was more than "mere worry, anxiety, and vexation." Id. 444.
41. This jury was not left to speculate about the existence of compensable severe
physical pain and mental anguish that was the result of the negligence of Defendants.
42. The Court should not disregard the jury's award when sufficient evidence was
provided the jury to justify the award. J.B. Custom Design & Bldg. V. Clemson 794 S. W.2d
38, 43 (Tex App-Houston) [1st Dist.] 1990, No Writ.
8
000319
G. INPROPER JURY ARGUMENT
43. In the case of Improper Jury Argument, the complainant must prove, (1) an error,
(2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such
as an objection, a motion to instruct, or a mistrial, (4) was not curable by an instruction, a
prompt withdrawal of the statement or a reprimand by the judge, (5) that the argument by its
nature, degree, and extent constituted reversible harmful error, (6) the arguments probable
effect on a material findings, (7) an importantly, a reversal must come from an evaluation of
the whole case which begins with voir dire and ends with the closing argument. From all
these factors, the complainant must show that the probability from the improper argument
caused harm greater than the probability that the verdict was grounded on the proper
proceedings and evidence. Aultman v. Dallas Ry. & Term Co. 152 Tex. 509, 260, S. W.2d
596 (1953), Standard Fire Insurance Co. v. Reese, 584 S. W. 835 (Tex. 1979).
44. The complainant, by failing to object and press for an instruction at the time of the
argument waives his complaint. Turner v. Turner 385 S. W.2d 230 (Tex. 1964) Maston v.
Texas Employers Ins. Assin, 160 Tex. 438, 331 S. W.2d. 907, 910 (1960).
45. The appellate attorney is attempting to bring racial prejudice into this case when it
has no bearing. Defendant's trial attorney is African American and had he felt there was
some attempt to marginalize his clients based on race or nationality, he would have objected
and gotten a ruling from the Court. He did not because the closing argument did not !
46. The Court should not sign a judgment Notwithstanding the Verdict or a Motion
for New Trial because all answers rendered by the jury was based on substantial evidence to
support it.
H. CONCLUSTION
47. The Court should not grant a Motion for Judgment Notwithstanding the Verdict or
a Motion for New Trial unless a directed verdict would have been proper. Tex. R. Civ. P.
9
000320
301. Further, more than a Scintilla of Evidence was submitted to the jury to support their
findings and the Court should not disregard their verdict.
PRAYER
FOR THESE REASONS, Intervenors ask the Court to Deny the Defendant's Motion for
Judgment Notwithstanding the Verdict or in the alternative, their Motion for New Trial.
Respectfully submitted,
Shelton Sparks & Associates L.L.C.
By: _ _ _ _ _ _ _ _ _ _ _ __
SHELTON SPARKS
Texas Bar No. 06507160
706 Cordell Street
Houston, Texas 77009
Telephone (713) 862-5533
Facsimile (713) 862-4913
Attorney for Intervenors
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY THAT ON march 6, 2012 a true and correct copy of the forgoing
document was served on the following via facsimile, U.S. mail, and/or electronic mail:
Plummer & Kuykendall - James C. Plummer Beck, Redden & Secrest, LLP - Russell S. Post
4203 Montrose Boulevard, Suite 270 1221 McKinney, Ste. 4500
Houston, Texas 77006 Houston, Texas 77010
Facsimile: 713-522-3605 Facsimile: 713-951-3720
Phone:713-522-2887 Phone:713-951-3700
Terry & Thweatt, P.C. -Lee Thweatt The Holman Law Firm, P.C. - David W. Holman
One Greenway Plaza, Ste. 100 24 Greenway Plaza, Ste. 2000
Houston, Texas 77046 Houston, Texas 77046
Facsimile: 713-600-4706 Facsimile: 713-400-4841
Phone: 713-600-4710 Phone:713-400-4840
SHELTON SPARKS
10
000321
Filed 12 March 7 P6:16
Chris Daniel - District Clerlc
Harris County
ED101J01.6766226
CAUSE NO. 2009-40925 By: Charlie R. Tezeno
PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF
WAGNER, AN INCAPACITATED ADULT, §
§
Plaintiff, §
§
§ HARRIS COUNTY, TEXAS
~ §
§
FOUR J's COMMUNITY LIVING CENTER, INC.; §
ANTHONIA UDUMA; and GODFREY UDUMA, §
§
Defendants. § 269TH JUDICIAL DISTRICT
PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTIONS FOR JNOV, NEW TRIAL
AND TO MODIFY, CORRECT OR REFORM THE JUDGMENT
Plaintiff Patti J. Wagner ("Ms. Wagner"), appearing as guardian of Jenny Ann Wagner
("Jenny Ann"), files this response to Defendants' post-judgment motions and supplements.
FACTUAL BACKGROUND AND SUMMARY OF ARGUMENT
This Court accepted briefs and heard extensive arguments before signing a judgment on
the verdict. Those arguments focused on Defendants' duties and whether to apply a statutory cap
on noneconomic damages. See TEX. C1v. PRAC. & REM. CODE§ 74.30l(a). Because Defendants
have no new legal arguments on these issues, there is no need to reconsider them now.
Defendants do offer new evidence in an attempt to conclusively prove, at this late date,
that Defendant Four J's was a "certified" health care provider. They are entitled to make a bill,
as they promised to do at the conclusion of the hearing on judgment formation, but they are not
entitled to prove their defensive theory months after trial. Defendants cite no rule of procedure
that authorizes (much less obligates) the Court to alter its judgment based on this new evidence.
Defendants' other arguments are standard preservation points that can be swiftly rejected.
They have one meritorious point about an interest calculation, and we attach a new judgment that
recalculates pre-judgment interest.
000322
ARGUMENT
I. Defendants Offer No New Legal Arguments To Justify JNOV or a New Trial.
Defendants present the same arguments this Court considered before signing a judgment,
as they are certainly entitled to do at this stage. They developed their arguments the first time,
and their post-judgment papers confirm there is nothing else to say.
This Court showed great diligence when these arguments were first presented,
considering lengthy briefs, holding a hearing, and asking pointed questions. At the end of the
hearing the Court announced that "I am persuaded to grant the motion for entry of judgment.
I am not persuaded to apply the caps. I am not persuaded to exclude Ms. Uduma from liability."
Tab A at 69.
At that hearing, the Court denied Defendants' request to take judicial notice of websites
that had been attached to their filings, Tab A at 69, and the Court denied Defendants' request to
reopen the evidence to allow Defendants to present "the certification." Id. When this Court
afforded Defendants an opportunity to make a bill, they started to do so and then declined,
announcing that they would "present the Court with it later." Id. at 70-71. Defendants explained
that they wanted more time to get the certificate in admissible form and would present it later.
Id Now they present new evidence, presumably for purposes of their bill.
II. Defendants' New Evidence Cannot Be Considered Now.
Defendants do not formally move to reopen the evidence, nor do they formally request
that the Court take notice of new evidence under a rule of civil procedure. They simply attach
new evidence and ask for a new ruling. To the extent that the Defendants are making their bill,
as the Court invited them to do, they are free to make a record. But there is no procedural basis
for the Court to consider new evidence at this point-which is why Defendants cite no authority.
They are entitled to make their record, but they are not entitled to any relief at this late date.
2
000323
A. The new evidence has never been previously offered, and it would be
inappropriate to consider it now.
Nearly two months after this Court signed a judgment, Defendants offer new evidence in
the form of two affidavits that state they were signed on February 2, 2012 and March 1, 2012.
This newly created evidence is far too late to be considered.
First, this Court has already denied a motion to reopen the evidence under Rule 270.
Recall that Defendants did not make a Rule 270 motion before verdict, as the rule requires for
"evidence on a controversial matter." See TEX. R. CIV. P. 270. Then, at the January hearing,
Defendants did not even make a Rule 270 motion until after the Court signed a judgment.
Defense counsel confessed that they did not "want to get into the position of asking [the Court]
to reopen the evidence to show the certification." Id. at 53. But after the Court announced its
rulings on the record, Defendants asked that the evidence be reopened. The Court denied that
request for the reasons argued extensively before the Court. See Tab A at 69-70.
Defendants have not cited Rule 270 in their post-judgment motions, evidently because
they are simply making the bill they promised. But make no mistake: By attaching and relying
on new evidence, they are in substance asking for the same relief the Court has already denied.
Defendants do not cite Rule 270 or formally ask that the evidence be reopened because they are
too late under the plain language of the rule.
The plain language of Rule 270 prohibits the untimely admission of evidence on
controversial matters: "[I]n a jury case no evidence on a controversial matter shall be received
after the verdict of the jury." TEX. R. CIV. P. 270. The language of the rule is not discretionary;
in cases tried to a jury, the trial court is bound by the mandatory term "shall." Defendants can
offer these affidavits for purposes of their bill, but they cannot reopen the evidence now.
3
000324
Likewise, Defendants do not ask the Court to take judicial notice of their new affidavits,
as they did with the websites in the January hearing, because a new affidavit offered many weeks
after trial is obviously not a proper basis for judicial notice. See TEX. R. Evm. 201(b).
Defendants only argue that the affidavits are "admissible under the public records rule."
Motion for JNOV or New Trial at 13 (citing TEX. R. Evm. 803(8)). It is unnecessary to consider
whether either affidavit fits within this hearsay exception, because neither Rule 803 nor the cases
Defendants cite offers any basis to admit an affidavit into the record four months after the trial.
The admissibility of the affidavits may be relevant to their bill, but not to their request for relief.
Defendants' admissibility arguments simply highlight that we are several steps removed
from trial admissibility questions. The issue now is whether Defendants can lose a verdict, lose a
judgment and only then attempt to create a more robust record on their affirmative defense.
At this late stage, the only basis to consider new evidence is Rule 324, which does not apply.
B. The affidavit is not newly discovered evidence under Rule 324.
Rule 324(b) requires parties who seek to rely on "newly discovered evidence" to file a
motion for new trial. But to make a claim for a new trial based on "newly discovered evidence,"
the movant is obliged to allege, inter alia, that "(I) the evidence has come to its knowledge since
the trial, [and] (2) its failure to discover the evidence sooner was not due to lack of diligence."
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Thus, diligence is an
"essential element." Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983), overruled on
other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). "Newly discovered evidence is
evidence that was not, and could not have been, discovered using reasonable diligence."
Patriacca v. Frost, 98 S.W.3d 303, 307 (Tex. App.-Houston [1st Dist.] 2003, no pet.). The test
looks to whether the movant had notice before trial that the evidence existed-not whether the
movant had notice that the evidence was necessary to its case.
4
000325
Here, there can be no dispute that Defendants' new affidavits are not newly discovered.
The affiants purport to review or authenticate documents that Defendants would certainly have
known about before trial. At the very least, Defendants could have obtained the underlying
documents or the affidavits before trial had they exercised reasonable diligence. To their credit,
Defendants do not argue that the affidavits are newly discovered or explain their diligence in a
verified motion, tacitly conceding that their lack of diligence is undisputed. See In re A.G.C.,
279 S.W.3d 441, 454 (Tex. App.-Houston [14th Dist.] 2009, no pet.).
In this respect, Plaintiffs note that Defendants attempted to supplement their motions with
new affidavits filed on March 5, 2012, but those affidavits are untimely. A motion for new trial
must be filed within 30 days of the judgment, TEX. R. C1v. P. 329b(a), and may not be amended
as a matter of right unless the amendment occurs within 30 days after the judgment is signed.
TEX. R. C1v. P. 329b(b). Thus, the supplements and the attached affidavits are untimely.
Because there is no valid procedural basis to admit new evidence at this very late stage,
this Court's rulings should not be revisited. Defendants are entitled to make a bill for the record,
but they are not entitled to any new relief. The same reasons that persuaded the Court to sign a
judgment on the verdict should persuade the Court to deny Defendants' post-judgment motions.
This is particularly true where the new evidence fails the newly discovered test. That ruling will
be entitled to deference, as the Supreme Court requires every reasonable presumption to be made
in favor of trial court orders refusing new trials. Jackson, 660 S.W.2d at 809-10.
III. Defendants' Miscellaneous Other Arguments Should Be Rejected.
Defendants also offer boilerplate arguments about the sufficiency of the evidence and the
excessiveness of certain damage findings. Defendants must make these arguments to preserve
their rights to appellate review, but it is not necessary for this Court to dwell on routine
preservation points. The Court has heard all the evidence, which amply supports the verdict.
5
000326
Defendants also argue that a new trial should be granted because Intervenor's counsel
offered "improper" jury argument. Specifically, they contend that Intervenor's counsel appealed
to racial or national prejudice when he asked the jury to send a message to "these people."
Motion for JNOV or New Trial at 10. They make this argument in one paragraph and with no
enthusiasm because it is entirely without merit.
Everyone who was present during closing arguments knows that this general reference to
one's trial opponents had no racial subtext whatsoever. The motion takes it badly out of context.
We will resist the temptation to editorialize about the circumstances of this trial and the identity
of the lawyers and litigants involved; suffice to say that the notion this reference was designed to
appeal to racial prejudice is impossible to take seriously.
Further, Defendants do not use the words "incurable" argument, but that is the standard
because there was no contemporaneous objection, motion to instruct, and motion for a mistrial.
See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). The cases in which
incurable appeals to prejudice required a new trial illustrate the stark contrast to this case. E.g.,
Living Ctrs. v. Penalver, 256 S.W.3d 678, 679 (Tex. 2008) Gudgment against nursing home
reversed because plaintiff compared defense attorney's attempts to limit damages to the Nazis'
WWII T-4 Project, in which the elderly and infirm were subjected to human experiments before
they were killed). Referring to one's trial opponents as "these people" is a neutral reference,
completely devoid of appeal to prejudice or bias. Further, there is no basis to believe that these
words caused an improper verdict. "There are only rare instances of incurable harm from
improper argument," Reese, 584 S.W.2d at 839, and this case is not one of them.
6
000327
IV. The Court Should Sign an Amended Judgment that Corrects the Interest Awards.
Defendants correctly note that prejudgment interest should not be calculated on awards of
future damages. Because the interest awards were inadvertently calculated on the total verdict,
Plaintiffs have corrected these calculations and attach an Amended Final Judgment. See Tab B.
This amended judgment is otherwise identical to the prior judgment in all material respects.
CONCLUSION & PRAYER
Based on the reasons offered here and in prior filings and hearings on these same issues,
which are incorporated by reference, Plaintiff Patti J. Wagner respectfully prays that this Court
deny Defendants' post-judgment motions and sign the proposed Amended Final Judgment.
Plaintiff respectfully requests any and all additional relief to which she may be entitled.
Respectfully submitted,
BECK, REDDEN & SECREST, L.L.P.
By: Isl Russell S. Post
Russell Post
State Bar. No. 00797258
Constance H. Pfeiffer
State Bar No. 24046627
1221 McKinney, Suite 4500
Houston, TX 77010-2010
(713) 951-3700
(713) 951-3720 (Fax)
L. Lee Thweatt
State Bar No. 24008160
Joseph D. Terry
State Bar No. 24013618
TERRY & THWEATT, P.C.
One Greenway Plaza, Suite 100
Houston, TX 77046-0102
(713) 600-4710
(713) 600-4706 (Fax)
ATTORNEYS FOR PLAINTIFF PATTI J. WAGNER,
AS GUARDIAN OF JENNY ANN WAGNER, AN INCAPACITATED ADULT
7
000328
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2012, a true and correct copy of the foregoing Brief in
Support of Motion for Judgment was properly forwarded to the following counsel of record in
accordance with the Texas Rules of Civil Procedure through the Texas.gov electronic filing
system or bye-file or fax addressed as follows:
James C. Plummer
PLUMMER & KUYKENDALL
4203 Montrose Blvd., Ste. 270
Houston, TX 77006
(713) 522-3605 -Fax
David W. Holman
THE HOLMAN LAW FIRM, P.C.
24 Greenway Plaza, Ste. 2000
Houston, TX 77046
(713) 400-4841 - Fax
Attorneys for Defendants,
Four J's Community Living Center, Inc.
and Anthonia Uduma
Shelton Sparks
Tiffany Harvey
SHELTON SPARKS & ASSOCIATES
706 Cordell St.
Houston, TX 77009
(713) 862-4913 -Fax
Attorneys for Intervenor
Isl Russell S. Post
Russell S. Post
8
000329
TABA
000330
1
VOLUME 1 OF 1
REPORTER'S RECORD
2 CAUSE NO. 2009-40925
3 PATTI WAGNER, AS GUARDIAN * IN THE DISTRICT COURT OF
OF JENNY ANN WAGNER, AN *
4 INCAPACITATED ADULT *
Plaintiff *
5 *
And *
6 *
WYLETTE TAYLOR AS GUARDIAN *
7 OF DERRICK JAMES, AN *
INCAPACITATED ADULT *
8 Intervenor, *
*
9 vs. * HARRIS COUNTY, T E X A S
*
10 FOUR J'S COMMUNITY LIVING *
CENTER, INC., ANTHONIA *
11 UDUMA AND GODFREY UDUMA *
Defendants. * 269TH JUDICIAL DISTRICT
12
13
HEARING ON MOTION FOR ENTRY OF JUDGMENT
14 JANUARY 13, 2012
15
16 On the 13th day of January, 2012, the
17 following proceedings came on to be heard in the
18 above-entitled and numbered cause before the Honorable
19 Dan Hinde, Judge Presiding, held in Houston, Harris
20 County, Texas. Proceedings reported by stenographic
21 machine shorthand.
22
23
24 KATHLEEN KEESE,CSR
Official Court Reporter
25 269th District Court
000331
2
A P P E A RAN C E S:
2
3 Mr. L. Lee Thweatt
SBN: 24008160
4 Mr. Joseph D. Terry
SBN: 24013618
5 TERRY & THWEATT, P.C.
One Greenway Plaza, Suite 100
6 Houston, Texas 77046-0102
713.600.4710
7
Mr. Russell S. Post
8 SBN: 00797258
Mr. Robert H. Ford
9 SBN: 24074219
BECK REDDEN & SECREST
10 1221 McKinney, Suite 4500
Houston, Texas 77010
11 713.951.3700
12 COUNSEL FOR PLAINTIFF
13
14 Mr. Shelton Sparks
SBN: 06507160
15 SHELTON SPARKS & ASSOCIATES, L.L.C.
706 Cordell Street
16 Houston, Texas 77009
713.862.5533
17
Ms. Tiffany C. Harvey
18 SBN: 24067343
THE LAW OFFICE OF TIFFANY HARVEY
19 706 Cordell Street
Houston, Texas 77009
20 83 2 . 498 • 7076
21 COUNSEL FOR INTERVENOR
22
23
24
25
000332
3
AP PE AR AN C E S:
2
Mr. James C. Plummer
3 SBN: 16075700
Mr. Amar Raval
4 SBN: 24046682
PLUMMER & KUYKENDALL
5 4203 Montrose Blvd., Suite 270
Houston, Texas 77006
6 713.522.2887
7 Mr. David W. Holman
SBN: 09902500
8 THE HOLMAN LAW FIRM, PC
24 Greenway Plaza, Suite 2000
9 Houston, Texas 77046
713.400.4840
10
COUNSEL FOR DEFENDANTS
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
000333
4
I N D E X
VOLUME 1 OF 1
2 JANUARY 13, 2012
3
4 Page
5 PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6 Calling of case . . . . . . . . . . . . . . . . . . . . . . . 5
7 Appearances of Counsel 5
8 Plaintiff and Intervenor's Joint
Motion for Entry of Judgment . . . . . . . . . . . . . . . . 6
9
10 Ruling of the Court . . . . . . . . . . . . . . . . . . . . . . . . . 69
11 Court Reporter's Certification . . . . . . . . . . . . . . 75
12
13 * * * * * * * *
14
15
16
17
18
19
20
21
22
23
24
25
000334
5
P R 0 C E E D I N G S
2 THE COURT: The Court calls Cause Number
3 2009-40925. Patti J. Wagner versus Four J's Community
4 Living Center, Inc.
5 Can I have appearances of counsel for
6 the record, please.
7 MR. POST: Your Honor, on behalf of the
B Plaintiff, Ms. Wagner, Russell Post.
9 MR. THWEATT: Lee Thweatt, Jim Terry on
10 behalf of the Plaintiff, Ms. Wagner.
11 MR. FORD: Robert Ford on behalf of
12 the Plaintiff, Ms. Wagner.
13 MS. HARVEY: Tiff any Harvey for the
14 Intervenor.
15 MR. SPARKS: Shelton Sparks for the
16 Intervenor.
17 MR. HOLMAN: David Holman on behalf of
18 the Defendants.
MR. PLUMMER: Jim Plummer on behalf of
20 the Defendants, Your Honor.
21 THE COURT: Good afternoon. I
22 appreciate y'all's patience, as a couple of the
23 earlier hearings went a little longer. So thank you
~ for your patience.
~ We're here on the Plaintiff and
000335
6
Intervenor's Joint Motion for Entry of Judgment.
2 We've got a lot of substantial briefing on this. I
3 have read the motion and the response and the reply
4 and looked at the cases. So that's just to give y'all
5 a heads up on that. But this is the Plaintiff and
6 Intervenor's motion, so I will let you all proceed
7 first.
8 MR. POST: Your Honor, I appreciate it
9 and I'm happy to proceed in whatever way is simplest
10 for the Court. We have a very straightforward motion
11 for entry of judgment on the verdict. It seems to me
12 it might make sense to allow Mr. Holman to present his
13 substantive challenges, and it may be more efficient
14 for the Court for us to respond to his argument.
15 But I'm happy to proceed whichever way the Court would
16 prefer.
17 THE COURT: Would you like to go first,
18 Mr. Holman?
19 MR. HOLMAN: Sure.
20 THE COURT: All right.
21 MR. HOLMAN: Your Honor, we saw
22 their motion for entry of judgment on the verdict;
23 and there were a couple of problems that we saw
24 initially. Number one, if Chapter 74 applies, then
25 the damages must be reduced, the noneconomic damages,
000336
7
must be reduced from $14 million down to $250,000 per
2 claimant. Number two, they were asking for judgment
3 against Ms. Uduma personally; and there is no basis
4 for judgment against Ms. Uduma personally. Let me
5 address those in order.
6 First, the question of whether
7 Chapter 74 applies. As you know, this issue was
8 raised pretrial. Mr. Plummer filed a motion to amend
9 his answers to allow him to assert Chapter 74, which
10 the Court recognized was relevant as to the damage
11 caps. They -- the Plaintiff and the Intervenor filed
12 motions to strike that amended answer, and the Court
13 took that up. The Court allowed that amended answer,
14 and so Chapter 74 is in the case.
15 Now, does Chapter 74 apply? We think
16 that there is no question Chapter 74 applies; and let
17 me go through the analysis, if I can. First of all,
18 there is in black and white in the Civil Practice and
19 Remedies Code a statement about what constitutes a
20 health care institution. And it says that a
21 health care institution is "a home and
22 community-based services waiver program for persons
23 with mental retardation adopted in accordance with
24 Section 1915(c) of the federal Social Security Act, as
~ amended."
000337
8
Now, there is no dispute in this record
2 that Four J's is a home and community-based services
3 program for the treatment of mentally retarded
4 persons, as authorized by DADS under the charter of
5 the State of Texas. The reason that there is no
6 dispute about that is that every single document
7 almost every single document discusses that Four J's
a is a home and community-based services program. There
9 is -- we presented the Court in our response to to
10 the brief filed by the Plaintiff, Wagner, we filed
11 excerpts from all the exhibits that talk about
12 Four J's being a home and community-based services
13 program, an HCS program, for mentionly retarded
14 adults.
15 Then there was -- we also presented the
16 Court with the reference to the testimony of Ms.
17 Wagner, who said that she was putting Jenny into
18 transferring Jenny to Four J's which was an HCS
19 program. We also presented the Court with references
20 to the testimony of other folks, such as Ms. Uduma,
21 Ms. Obichuku and Mr. Kern, all of whom testified about
22 HCS and HCS policies and also the regulation by DADS.
23 We also presented the Court with the
24 reference to Mr. Kern's expert report in which
25 Mr. Kern said Four J's is a home and community-based
000338
9
services program, services facility, HCS facility.
2 The Texas Administrative Code 40, Texas
3 Administrative Code 9.153 defines an HCS program as a
4 home and community-based services waiver program as
5 authorized by Section 1915(c) of the Social Security
6 Act.
7 THE COURT: What provision is that
s again?
9 MR. HOLMAN: That's 40,
10 Texas Administrative Code 9.153.
11 THE COURT: All right. 9.153?
12 MR. HOLMAN: Yes, sir.
13 THE COURT: Thank you.
14 MR. HOLMAN: Also we cited in our brief
15 the other administrative code provision which further
16 defines the HCS program; and that is 9.154(a), which
17 states, "The HCS Program is a Medicaid waiver program
18 approved by the Centers for Medicare and Medicaid
19 Services (CMS) pursuant to 1915(c) of the Social
20 Security Act. It provides community-based services
21 and supports to eligible individuals as an alternative
~ to the ICF/MR Program," which is the intermediate
23 facility program. That would be similar to the state
24 school program. "The HCS Program is operated by DADS
25 under the authority of HHSC." That's in the 40, Texas
000339
10
Administrative Code, Section 9.154(a).
2 Now, so there is no dispute that
3 Four J's -- and there was never any dispute in the
4 record of this case during the trial of the case
5 that Four J's operated as a home and
6 community-based waiver program under DADS.
7 It is clear under Section
a 7 4 . 0 0 1 ( a ) ( 11 ) ( I ) that 11
a home and co mm u n it y- bas e d
9 services waiver program for persons with mental
10 retardation adopted in accordance with Section 1915(c)
11 of the federal Social Security Act, 11
is a health care
12 institution. And then we turn to the next section
13 which defines a health care provider; and a health
14 care provider is defined as including, under
15 (12) (A) (vii), 11
a health care institution." So if you
16 are a health care institution you qualify as a health
17 care provider under Chapter 74. Thus, we don't think
18 that there is any dispute in the record and there can
19 be no dispute in the record that Chapter 74 applies to
20 Four J's and that Four J's is a health care provider.
21 And we have cited the Court to two cases that have
22 held in the same way. They have held that the
23 the -- the nature of this entity is a home and
24 community-based services program for mentally retarded
25 adults; and, therefore, it is a health care provider.
000340
11
Now, the more difficult question for you
2 is whether Ms. Uduma is a health care provider. Now,
3 on a blank slate, if this were being written on a
4 blank slate, there could be no question that as a
5 matter of law Ms. Uduma is a health care provider.
6 And the reason for that is that the statute in
7 unmistakeable terms says that an owner, a director, an
B employee of a health care provider is a health care
9 provider. We know from the undisputed testimony that
10 was given by both the Plaintiffs and the Defendants in
11 the trial of this case that Ms. Uduma is the owner of
12 Four J's and she is the CEO of Four J's and that she
13 is the president of Four J's. So she would qualify,
14 on a blank slate, as a health care provider under this
15 statute, no question.
16 The question arises because at the time
17 that the Court in pretrial was wrestling with the
18 issue of whether to grant the motion to amend,
19 the Court -- they raised the question about whether
20 Chapter 74 applied to Ms. Uduma because the
21 argument -- our argument was that she was being sued
22 as a premises owner. Mr. Plummer said, I agree with
23 you, I don't think Chapter 74 applies. And he
24 went further. He said, we are not going to assert any
25 remedies, any rights, defenses for Ms. Uduma under
000341
12
Chapter 74.
2 Now, they have taken the position that
3 that is a judicial admission and that bars him from --
4 bars Ms. Uduma from arguing that she is a health care
5 provider under Chapter 74. I was troubled by the
6 statements that Mr. Plummer made as well. And, you
7 know, I made no secret of that to Mr. Plummer when
8 I saw it because I thought: Well, gosh, you know, you
9 made these statements; the Court heard these
10 statements. But then I started looking into the law
11 of judicial admission. The law of judicial admission
12 is that you can judicially admit a fact but you can't
13 judicially admit a matter of law. The idea is, I
14 can't judicially admit, for example, that the Tort
15 Claims Act doesn't apply to the City of Houston.
16 That's not subject to judicial admission because it is
17 a question of law.
18 THE COURT: Step away from the Tort
19 Claims Act because that brings in the issues of
20 sovereign immunity which also brings in the issues of
21 j ur i sdict ion
22 MR. HOLMAN: Sure.
23 THE COURT: Give me a different example.
24 MR. HOLMAN: Let me give you a different
25 example. There is a case that we cited where there
000342
13
were deemed admissions, and one of the deemed
2 admissions was that the defendant breached the
3 contract. Another one of the deemed admissions was
4 that defendant owed a commission. And the
5 Court looked at that as judicial admission and said it
6 doesn't qualify as a judicial admission because it's
7 admitting a question of law. And you can't, in
a judicial admission, admit a question of law. So those
9 deemed admissions, the Court said, were of no effect.
10 We cited a number of other cases
11 THE COURT: So lawyers who make
12 arguments in court can't bind their clients as to the
13 concessions they make? Say you are in oral argument
14 and you concede that, well, Your Honor, yes, this law
15 does not apply in this context. They can't be bound
16 by that concession?
17 MR. HOLMAN: Well, you know, I -- and
18 that's what I had trouble with, as well. I mean,
19 frankly, I was -- I was troubled with the idea of
20 Mr. Plummer representing to you that Chapter 74 didn't
21 apply in that situation. What I did was I looked at
22 it under the concept of judicial admission. If -- if
23 I were to judicially admit, as, you know, Mr. Plummer
24 did, that Chapter 74 doesn't apply to Ms. Uduma
25 and Chapter 74 as a matter of law applies to
000343
14
Ms. Uduma, I don't think that judicial admission has
2 any effect. I think you can in certain circumstances,
3 you -- you can simplify your case by eliminating
4 certain claims and that sort of thing. Certainly, you
5 know, there are ways you can stipulate and abandon and
6 do Rule 11 agreements and all kinds of things.
7 THE COURT: What's your response,
a though, to Plaintiff and Intervenor's argument that,
9 well, if Mr. Plummer hadn't said that we would have
10 accepted the Court's offer to continue trial because
11 that did shape our trial strategy and the way we
12 approached presenting evidence and arguing to the
13 jury?
14 MR. HOLMAN: I, you know -- frankly, I
15 have no response to that. I think that -- that
16 probably -- were I arguing on their behalf, I would
17 probably argue judicial estoppel. I would say that,
18 you know, they relied upon that because he made that
19 statement and therefore he should be judicially
20 estopped from taking the contrary position. But, you
21 know, the argument that they made was judicial
22 admission; and, you know, frankly, I'm just addressing
23 the argument that they made.
24 I believe that what we have to do is
25 look at the statute. And, you know, if we are going
000344
15
to hold that Four J's is indisputably a health care
2 provider, which I think we have to do, then the
3 question is: Is the owner of Four J's subject
4 to Chapter 74 or not?
5 I think Mr. Plummer's problem was that
6 when he looked at it he was thinking that they were
7 suing her as a premises owner and that fell outside
B the statute. And, you know, I think there was some
9 confusion on his part, perhaps; but I don't think that
10 that changes the nature of how the statute applies.
11 But --
12 THE COURT: Well, let me just stop you
13 there.
14 MR. HOLMAN: Okay.
15 THE COURT: What record suggests that
16 they were not suing her as the premises owner?
17 MR. HOLMAN: Nothing.
18 THE COURT: Then why do -- why do
19 we care about whether Chapter 74 applies?
20 MR. HOLMAN: Well, because if she is
21 a health care provider then it becomes a health care
22 liability claim even though they are suing her as,
23 quote, a premises owner.
24 THE COURT: How is that? How is she a
25 health care provider as a premises owner?
000345
16
MR. HOLMAN: Because -- well, Four J's
2 is a health care provider. She, being an employee,
3 whatever, of Four J's is a health care provider. If
4 they sue her for her failure to provide safety for the
5 people that were the residents, the patients, then
6 that's a health care liability claim. You know, we
7 presented those -- all of these cases that talk about
8 health care liability claims and what constitutes a
9 health care liability claim. And there is a number of
10 cases, including the Marks case that they rely upon
11 and the Omaha Healthcare case, the spider bite case,
12 that the Court is familiar with, where the Court
13 said -- where they tried to make the distinction,
14 well, it's just a premises claim, it's not a health
15 care liability claim. And the Court said, no, it's a
16 health care liability claim because the central focus
17 of this claim, the underlying nature of the claim is
18 that you are suing them for failing to provide safety
19 for the residents.
20 THE COURT: So if someone -- let's take
21 a nurse. She owns her own house. Someone trips and
22 falls in the house and scrapes their knee. And she
23 goes, "Oh, wait. I've got the Bactine in my first aid
24 kit and the Band-Aid." She goes and disenfects it,
25 puts a Band-Aid on it. But, unbeknownst to the person
000346
17
who is injured, the house is infected with staph; and
2 he comes down with a staph infection. And he files a
3 premises liability case, defective condition, that the
4 house had a staph infection. The very fact that, just
5 because she is a nurse, she would not be subject to
6 the ordinary premises liability standards for whether
7 or not she was liable for, you know, failing to warn
a and make safe her staph-infected house?
9 MR. HOLMAN: Well, you know, I think if
10 you have a situation where you have a nurse and there
11 is a premises problem, somebody falling --
12 THE COURT: And add in that she works
13 for a hospital --
14 MR. HOLMAN: Okay.
15 THE COURT: -- a health care
16 institution.
17 MR. HOLMAN: Right. And somebody falls
18 down in her house. That is a, definitely, a premises
19 claim.
20 THE COURT: She is an employee of
21 the heal th care institution.
22 MR. HOLMAN: Yes.
23 THE COURT: She is a health care
24 provider.
25 MR. HOLMAN: But what you do is you look
000347
18
at the underlying nature of the claim. The
2 underlying nature of their claim is they're claiming
3 that these folks were residents of the entity which is
4 a health care provider and that these folks were not
5 provided safety.
6 The best case on this -- and, you know,
7 I discussed it in the brief; but, you know, it was
a discussed pretrial, which is the brown recluse spider
9 case. What happened is it's a nursing home, and a
10 spider bit one of the residents. And the plaintiff
11 sued saying, "Well, you didn't do proper pest control.
12 And, you know, you should have prevented spiders from
13 getting in here." And that's a premises claim.
14 The Court analyzed that and they said,
15 "Look, if somebody is in your in your facility and
16 they are in custodial care in your facility and you
17 are responsible for providing their fundamental
18 needs --" What are their fundamental needs? Health
19 and safety. And if your argument is you didn't
20 provide them safety, then that's a health care
21 liability claim. And that's what we're -- that's what
22 we're faced with here.
~ The arguments and all of
24 their arguments, the underlying nature of all their
25 arguments is: They were patients and you
000348
19
didn't provide them safety from the fire that
2 occurred. You didn't provide them protection from
3 this fire, protection from this harm. You didn't
4 provide for their fundamental needs. That's a health
5 care liability claim.
6 Now, whether they are suing Ms. Uduma as
7 a, quote, premises owner or not, the underlying
a nature of the claim is the same as far as Ms. Uduma
9 goes.
10 But let me address, if I may, because
11 this -- this feeds right into the other argument. Say
12 Chapter 74 doesn't apply to Ms. Uduma. What are we
13 left with? They want to sue Ms. Uduma individually.
14 They want to get liability against her, a
15 judgment against her personally as a, quote, premises
16 owner. And you have seen that. I mean, you have seen
17 that in their, in their pleadings. You have seen it
18 in their questioning of Ms. Uduma.
19 They said, "Ms. Uduma, you realize you
20 are being sued as a premises owner?" You saw that in
21 the charge conference and in the language, in the
22 language that they put in the charge about how they
23 wanted liability against her with respect to the
24 condition of the premises, so forth.
25 Can Ms. Uduma be liable as a premises
000349
20
owner in this situation? And I submit to you that the
2 case law states that she cannot be liable as a matter
3 of law.
4 Now, the case that I cite is the
5 same case that they cite. It's the landmark case.
6 It's the Johnson County Sheriff's Posse versus
7 Endsley. It's a Texas Supreme Court 1996 case. And
a what that case says is that a lessor has no duty to
9 protect one from dangerous conditions that occur on
10 the premises after the, after the place has been
11 leased. There is no duty. Once the lessor leases the
12 premises, there is no duty. And the Court said, the
13 reason for this is because she has relinquished
14 possession of the property; therefore, we will not as
15 a matter of law impose a duty on her.
16 Now, there are three exceptions to that
17 rule, that general rule. And the three exceptions are
18 burdens that the plaintiff has to prove, according to
19 the Endsley case. The only exceptions that they have
20 are these three: One, to show negligent repairs.
21 There is no allegation or proof of that. Number two,
22 concealed defects. No allegation or proof of that.
23 Or, third, that she retained control over a portion of
24 the premises on which the injury occurred. There is
25 no allegation or proof of that.
000350
21
Now, in their brief they alleged -- in
2 their brief they allege that she retained control of
3 the fire safety. And they tried to establish that by
4 showing that she took the fire marshal around and that
5 she was the one that dealt with the OMNI group that
6 did the fire alarms. The first problem with that
7 analysis is that there is no showing that she retained
8 any control over a portion of the premises after
9 she leased the property to Four J's. And there is no
10 evidence whatsoever about that, but the second problem
11 is that the evidence establishes the contrary of that
12 proposition.
13 She was asked directly about taking the
14 fire marshal around and "Didn't you do that as the
15 premises owner?" She said, "No. I had leased the
16 property."
17 They asked Mr. Overholt, "Well, didn't
18 you " I can't remember the exact words; but it was
19 something like, "What was your relationship with
20 Ms. Uduma?" He said, "I knew her as the principal of
21 Four J's. Did she ever mention to you that she was
22 the property owner?" He said, "I assumed that, but
~ she never used those words."
24 There is no evidence whatsoever that she
25 as the premises owner, apart from -- you know, as
000351
22
the premises owner retained any control over fire
2 safety as if they were retaining control over the
3 premises. So, under the Endsley case and the
4 Endsley case is clear -- there are no exceptions that
5 apply to the general rule. And the general rule is
6 that she has no duty as a lessor; and, therefore, she
7 has no duty and cannot be personally liable for this
a judgment.
9 Now, they have also cited and we cited
10 as well Restatement provisions 360 and 361. And I
11 think those are important too because the Restatement
12 provisions talk about retention of part of the land.
13 And both of those provisions talk about retention of
14 part of the land. That's the way that a lessor
15 becomes liable, if the lessor retains control over
16 part of the land. And there is no evidence whatsoever
17 that she ever retained control over part of the land,
18 as if, you know, the lessor would retain control over
19 common areas, for example.
20 Now, they have cited a case called the
21 Osti case. And, if I may, that's the only case that
22 they cited that they say supports liability in this
23 situation against Ms. Uduma. Osti was a case in which
24 the fellow was in a third-floor apartment that didn't
25 have any exits. And the Court said that's a
000352
23
structural issue. The lessor had a duty to provide a
2 fire escape, and the lessor didn't do it. So the
3 lessor can be liable for failing to provide a
4 fire escape because that's a structural issue.
5 We don't have that situation here.
6 There is no allegation that there is some kind
7 of structural problem wrong with the house, with the
a group home that she leased to Four J's.
9 THE COURT: Could it have been a back
10 door that would not open?
11 MR. HOLMAN: Well, it's a back door that
12 was locked, that had a dead bolt; but that's Four J's
13 problem. Four J's was the occupier of the premises.
14 Once she relinquished possession to Four J's, Four J's
15 was responsible for all of that stuff. There is no
16 allegation here that this was a third-floor apartment
17 without a fire escape.
18 So that -- that case stands for a
19 limited proposition that deals with structural
20 problems. And there are no such problems that are
21 alleged in and that case doesn't have any -- I
22 couldn't find any other cases that relied on that
23 case. But I found plenty of cases that relied on the
24 Endsley case that say that there is no duty on the
25 lessor in this particular type of situation.
000353
24
Now, the other thing that I saw was that
2 they have cited something in the brief called the
3 International Residential Code. And we tried to look
4 through the record of the trial and couldn't find any
5 reference to the International Residential Code. So I
6 don't know where that comes from or how it applies or
7 would be promulgated or how -- how it would apply to
a Ms. Uduma in this situation. It might apply to
9 Four J's because Four J's was the occupier of the
10 premises, but it wouldn't apply to Ms. Uduma
11 because she had already leased the premises to
12 Four J's.
13 Now, there is another argument that's
14 made about Ms. Uduma personally, which would apply, I
15 guess, if Chapter 74 didn't apply to Ms. Uduma
16 personally. And they say that, that she could
17 be liable personally as the agent of Four J's. And,
18 first of all, that was not what was tried. As the
19 Court knows they tried her being a premises owner.
20 That's how they framed their case. That's how they
21 told the jury that they were trying their case, that
22 she was being sued personally as a premises owner.
23 They never sued her as an agent.
24 They did have alterego allegations, but
25 they never tried those alterego allegations.
000354
25
There is a problem with them trying
2 to hold her personally liable as the agent of the
3 corporation. There is a series of cases -- Leitch
4 versus Hornsby, Chron Tri versus J.T.T., Texas Supreme
5 Court cases -- that said that if the corporate agent
6 is accused of violating the same duty that is owed by
7 the corporation then you can't hold the corporate
a agent personally liable. And there is a number of
9 cases that have followed that. And, you know, the
10 idea is that they have to have some independent duty
11 that was violated. And there was no evidence or proof
12 of some independent duty that was here. But more
13 importantly -- and I pointed this out at the end of
14 the argument -- is the illogic of it. If it's true
15 that Four J's is a health care provider whose damages
16 are limited to 250,000 per claimant and their argument
17 now is that Ms. Uduma was an agent of Four J's, under
18 the statute an agent of Four J's is also a health care
19 provider and would be subject to the damage caps. But
20 what they are saying in their brief is you should hold
21 that Four J's -- that damages are limited for
22 Four J's, but they are -- you can get unlimited
23 damages against Ms. Uduma as the agent of Four J's.
24 And that doesn't make any sense at all. And it
25 is certainly not the proper construction of the
000355
26
statute in that circumstance.
2 If they are saying that she
3 is personally liable as a premises owner, that's one
4 thing. We can deal with that argument. But if she
5 tries to say -- if they try to say she is an agent of
6 Four J's, that takes us right back into Chapter 74.
7 So what we are asking the Court to do
8 this is their motion for entry of judgment -- we are
9 asking the Court, if the Court enters judgment, to
10 reduce the damage caps to 250,000 per claimant. And
11 it's just the noneconomic damages, the 14 million,
12 reduce those down to 250,000 per claimant, pursuant to
13 74.301, which is the limitation on noneconomic
14 damages. And then, do not enter judgment against
15 Ms. Uduma personally because there is no basis for it.
16 THE COURT: Are you still persisting in
17 this argument that because there was no expert report
18 as to Ms. Uduma that the claims against her should be
19 dismissed?
20 MR. HOLMAN: No. No, we're not. I had
21 made that argument before I saw your comments in the
22 pretrial. And your comments in the pretrial made it
23 clear that that expert report argument was waived, and
24 we're not raising that anymore.
25 THE COURT: All right.
000356
27
All right. I've got a couple questions
2 for you.
3 One of the arguments that the Plaintiffs
4 make was that there was a lack of evidence that
5 Four J's was actually licensed at the time of the
6 fire. What evidence do you have in the record that
7 shows that Four J's was actually a licensed
a institution at the time of the fire?
9 MR. HOLMAN: I don't think that there is
10 a license on file. But -- and, as we said, the
11 undisputed evidence is that they were operating as an
12 HCS facility under the auspices of DADS. Everybody
13 admitted and all the documents admitted that they are
14 operating under, under the authority of DADS.
15 THE COURT: Don't you have to have a
16 license to operate under the authority of DADS?
17 MR. HOLMAN: Of course. The, the
18 situation in Texas is you can't operate a facility as
19 an HCS facility without a license. And, believe me,
20 if we -- if there was any dispute.about whether we had
21 a license -- which there wasn't throughout the
22 trial -- if there was any dispute, they would have
23 brought that up and said, you are violating the
24 regulations because you are operating this facility
25 without a license. There was never any evidence or
000357
28
any dispute that we were properly authorized to act as
2 an HCS facility. And all the documents support that.
3 THE COURT: All right. Those are my
4 questions.
5 Mr. Post.
6 MR. POST: Yes, sir. Your Honor, I
7 would like to begin with the Chapter 74 question
8 regarding Four J's. I think it's important to step
9 back for one moment and see the big picture of the
10 case, see how the issues interact, because Four J's
11 was found 60 percent responsible for this incident.
12 So it would be jointly and severally liable. Four J's
13 does not have any duty argument here. Four J's is
14 depending on its ability now to establish
15 the applicability of Chapter 74. If it fails in that
16 effort, then the Plaintiff and the Intervenor
17 are entitled to a joint and several judgment of the
18 uncapped damages with respect to Four J's. We still,
19 obviously, would want the judgment with respect to
20 Ms. Uduma personally. But that would essentially be a
21 roadmap to a decision of the case.
22 THE COURT: But that would be after
23 60 percent the percentage liability application,
24 right?
25 MR. POST: With respect to whom, Your
000358
29
Honor?
2 THE COURT: Four J's.
3 MR. POST: No. Four J's is jointly and
4 severally liable because
5 THE COURT: But I'm saying that --
6 you're not saying that you could get 14 million
7 against Four J's? You are saying 60 percent
a of 14 million?
9 MR. POST: That would include -- we
10 would be entitled to recover everything.
11 THE COURT: That's with the 6 0 percent
12 of --
13 MR. POST: Yes, because under Chapter 33
14 a defendant that is found more than 50 percent liable
15 is --
16 THE COURT: All right.
17 MR. POST: We wouldn't be entitled to
18 recover twice, obviously. We would never try to do
19 that.
20 THE COURT: It would be up to Ms. Uduma
21 then to seek contribution for --
22 MR. POST: Exactly. That's exactly
23 right.
24 THE COURT: I see.
25 MR. POST: Now, let me turn to the
000359
30
question of whether Four J's is entitled to invoke
2 Chapter 74 because this is a question of conclusive
3 evidence. It's not a legal question.
4 Mr. Holman has cited the statutes that
5 make an RCS program fall within the definition of a
6 health care institution; but the key is he has to
7 establish the factual predicate that Four J's at the
a time of this incident was, in fact, an RCS program.
9 We had a full trial. Mr. Holman says
10 repeatedly there was no dispute about this issue, but
11 this is not our burden. It is the Defendants' burden
12 of proof to prove that they are entitled to invoke
13 this statute. They had the burden to prove it, and
14 they did not prove it at trial. And they did not ask
15 for jury findings on it. And so, in this posture,
16 they had the obligation under Rule 279 to establish it
17 conclusively. If it's not conclusively established
18 that Four J's was a certified RCS program at the time
19 of this incident, that defense is waived and they
20 cannot invoke Chapter 74.
21 The proof that you see in their motion I
22 think underscores their full awareness that they did
23 not prove this fact at trial. The issue never came
24 up. When they filed their original response to our
25 motion for judgment, they simply asserted that they
000360
31
were an HCS program without proof. We filed our
2 response and pointed out that they hadn't established
3 that fact. They had a month in which to dredge the
4 record for that evidence. And they don't have
5 evidence that conclusively establishes that.
6 Here's what I want to emphasize. They
7 have given you four categories of evidence that they
a say establishes that they are an HCS program. None of
9 that evidence is conclusive. And it's important to
10 look at this carefully in light of the conclusive
11 evidence standard. Mr. Holman correctly cites a
12 couple of cases that have found HCS programs to be
13 health care institutions; but, importantly, in neither
14 of those cases was the Court faced with the question
15 of whether the defendant proved it was an HCS program.
16 This is that case.
17 Now, the first category of evidence that
18 they cite is a series of exhibits that referred to
19 Four J's as an HCS program. That was their
20 Appendix A. All that is is a series of internal
21 documents from Four J's that internally brand it as an
22 HCS program. But those documents don't say anything
23 about certification; they don't say anything that
24 establishes that, in fact, Four J's was certified at
25 the time of this incident; and, in fact, they don't
000361
32
conclusively establish even that it's an RCS program.
2 They simply say Four J's holds itself out as such. A
3 fact finder would not be obligated to believe that
4 evidence. At best, that would have been probative
5 evidence to put before the jury. But they didn't ask
6 the jury to make a finding, and that's not
7 conclusive evidence of anything.
8 In a moment, when I deal with the
9 Web site evidence, I'm going to walk you through the
10 way the administrative scheme works; and you will
11 see there is a certification procedure that
12 involves annual reviews, relicensing. And there is a
13 certificate that has to be issued. They haven't dealt
14 with any of that with these internal exhibits.
15 Their second category of evidence they
16 claim is trial testimony. I read every excerpt of
17 that trial testimony today. None of it says that
18 Four J's was a certified RCS program. Yes, there are
19 references to the procedures of RCS programs. Yes,
20 there are some references to a variety of regulatory
21 proceedings. But nothing in that testimony ever
22 specifically says RCS is a certified program. And
23 even if it did, it's within the province of the trier
24 of fact to believe or disbelieve contested testimony.
25 We would have a chance to impeach and cross-examine
000362
33
witnesses on that issue if they had ever put a witness
2 up who gave that testimony. So that can't be
3 conclusive evidence.
4 I would emphasize, among the excerpts
5 that they cited, from the October 18th trial testimony
6 was the testimony of the Plaintiff's expert Mr. Kern,
7 who at Pages 256 to 261 talked some about the
a certification procedure and the fact that there
9 are annual reviews and that an institution can loose
10 its certification. And so there is in fact converting
11 evidence in the record that would allow a fact finder
12 to question whether this institution was certified.
13 That's certainly not conclusive evidence as they have
14 to prove it.
15 The third category of evidence -- and
16 this is, I think, the real evidence of a guilty
17 conscience -- is they try to use the Plaintiff's
18 Chapter 74 expert report to prove that they were an
19 HCS program. As the Court knows, that expert report
20 is not in evidence; and so it cannot be used now to
21 establish their defenses as a matter of law.
22 Second, under Chapter 74, which they
23 are trying to rely on, no expert report can be used
24 for any purpose. They would not be trying to rely
25 on that expert report if they believed they had proved
000363
34
this defense as a matter of law at trial. They know
2 they didn't.
3 So that brings us to the key to their
4 case, and their whole defense now rests on this
5 one premise. They want you now to reopen the evidence
6 and take judicial notice of two Web sites which they
7 say now, two months after trial, are going to prove
a their defense. And I want to talk at some length
9 about what's wrong with that effort to rely on these
10 Web sites.
11 First of all, I don't think it's an
12 appropriate use of judicial notice to ask a Court to
13 judicially notice a fact that is essential to
14 establish an essential element of a theory of recovery
15 or defense after trial. What they are saying is we
16 can come in for the first time after trial and,
17 essentially, establish the element of our defense as a
18 matter of law. Rule 270 says that you cannot take
19 additional evidence on a controversial matter after
20 the jury has returned a verdict. And that's the
21 essence of what they are asking you to do here. And
22 it fits with the judicial notice rule because, even
23 when judicial notice is proper, it's proper only if
24 the fact that is being requested for judicial notice
25 is not within reasonable dispute. They have to
000364
35
conclusively establish that the fact exists that they
2 are asking you to take judicial notice of. And these
3 Web site excerpts simply won't do it.
4 If you turn to the actual documents that
5 they have attached, I want to point out a few problems
6 with these Web site excerpts. The Web site
7 excerpts don't say anything about whether Four J's is
a certified. That's the key fact, is whether Four J's
9 was in fact an RCS program in accordance with the
10 Social Security Act at the time of this incident.
11 Nothing in these two excerpts say that. In fact,
12 there is a detailed certification procedure
13 Robert, if you will give the Court a
14 copy of this.
15 (Referenced document tendered to the
16 Court and counsel.)
17 MR. POST: -- that an institution has to
18 go through to maintain its certification.
19 I'm going to try to do this efficiently.
20 I don't want to get lost in the regulations, but Tab A
21 is Section 9.151 of the Administrative Code. You will
22 see Paragraph 3 says this statute controls the process
23 for certifying an RCS program. Likewise, Tab B
24 says this subchapter applies to all RCS programs.
25 I think this is exactly the statutes
000365
36
that they are relying on.
2 THE COURT: Let me ask, this tab --
3 these are administrative codes?
4 MR. POST: Correct, Your Honor.
5 THE COURT: You were referring to a
6 statute.
7 MR. POST: Well, I'm loosely referring
8 to the Administrative Code as a statute. It is
9 technically regulatory, but it is the applicable
10 regulatory law here.
11 THE COURT: All right. Thank you.
12 MR. POST: Tab C, Your Honor, in
13 Paragraph (a) -- this is the language upon which
14 Mr. Holman relies. And I agree with him --
15 establishes that an HCS program is the Medicaid
16 waiver program that is referenced in Section 1915(c)
17 of the social Security Act. We don't quarrel with
18 that conclusion, but they have to establish that they
19 are a certified program.
20 Turn then to Tab D. Section 9.171 sets
21 forth the certification and review procedures.
22 Paragraph (a) makes clear a provider has to be in
23 continuous compliance with the program certification
24 principles.
25 Paragraph (c) points out that
000366
37
DADS conducts on-site certification reviews annually.
2 And Paragraph (d) provides that a certification lasts
3 for one year only, and it has to be renewed each year.
4 And so the fact that at one point in time this
5 institution was a certified HCS program does not mean
6 that it is "world without end, amen."
7 Turn then to Tab E, which discusses the
8 process for certification. Paragraph (a) assumes the
9 best case. If DADS does a certification review and
10 finds compliance with all certification principles,
11 the program is certified. But that's not the only
12 provision. This is an entire spectrum of what the
13 regulation calls sanctions that deals with the extent
14 of noncompliance. I want to point you to just a
15 couple of potential consequences.
16 They have the burden to show you
17 conclusively that they were certified; so, I'm not
18 going to try and go through this exhaustively. But
19 look, if you would, at the second page of this
20 provision at Paragraph (d), left-hand column, one-half
21 of the way down, "If DADS determines that a program
22 provider is out of compliance with between 10 and 20
23 percent of the certification principles at the end of
24 the review exit conference DADS does not certify
25 the program." That throws the program into a
000367
38
follow-up review process. At the end of which -- and
2 you can see this in Paragraph (2) -- "Based on the
3 results of the follow-up review," Subparagraph (B), if
4 corrective action has not been satisfactorily taken
5 DADS denies certification of the program and
6 implements other sanctions.
7 Without burdening the Court with a lot
8 of administrative parlance, I will tell you that if
9 you go through the rest of this provision you will see
10 heightening degrees of sanctions that, likewise, lead
11 to denials of certification. So it's not the case
12 that simply because one assumes that this program was
13 once an HCS program it is automatically and forever an
14 HCS program.
15 So what do we have then on these
16 Web sites? Again, the Web sites don't say anything
17 about whether HCS is in fact -- pardon me -- about
18 whether Four J's is in fact a certified HCS program,
19 particularly not on this date. They don't say
20 anything about whether certification was present at
21 the time. And I want to talk a little about the
22 details of what you see on the face here.
23 These Web site excerpts specifically
24 say, we're providing this as a service to provide a
25 list of providers. Look at -- at the bottom of the
000368
39
first page at the caution.
2 The caution says: This is simply a tool
3 we provide you to help you make a selection. This is
4 not a report of the agency's official business. This
5 is a public service to provide a list of potential
6 providers. And, importantly, look at the
7 last sentence of that caution. This site may
8 include some self-declared and unverified information.
9 The test the Supreme Court has laid out
10 for judicial notice is that the fact you are asked to
11 take judicial notice of must be, quote, verifiably
12 certain. That's what the Supreme Court said in the
13 Eagle Trucking case. This Web site says, we are
14 telling you some of the information on this list is
15 not verifiable. On its very face, it's not
16 appropriate for judicial notice.
17 When you look at the second attachment
18 that they have provided, you see a compliance history.
19 It is littered with noncompliance. We don't know what
20 action was taken by DADS at the relevant time. We
21 don't know what corrective steps were taken. We don't
22 know whether they were certified at the time.
23 Now, perhaps a fact finder could draw an
24 inference had this evidence been properly introduced
25 at trial that they were certified; but it's certainly
000369
40
not conclusive evidence that no reasonable mind could
2 dispute. And had they tried to put it on at trial, we
3 would have cross-examined them, not only about what is
4 on this document, but on the nature of the
5 investigations that took place, the review process
6 that took place, and whether there was in fact
7 a certification.
8 I want you to note in this respect the
9 dog that's not barking. They didn't put Ms. Uduma on
10 to testify that they were certified as an HCS
11 program. They haven't given you an official
12 certificate that says on this date they were
13 certified as an HCS program. Mr. Holman says, if I
14 hear him correctly, they don't have it.
15 This is categorically not
16 appropriate
17 MR. HOLMAN: I don't mean to interrupt,
18 but -- --
19 THE COURT: You will get a chance to
20 respond.
21 MR. HOLMAN: -- I never said that I
22 didn't have it.
23 THE COURT: You will get a chance to
24 respond.
25 MR. POST: They have to prove this fact
000370
41
conclusively. This evidence doesn't prove this fact
2 conclusively. And because they can't establish it,
3 they have to live with the consequences. They have
4 not established their right to invoke Chapter 74,
5 which means all the other questions related to
6 Chapter 74 are inapplicable.
7 Now I'm going to touch very briefly on
a Ms. Uduma's argument that she can invoke Chapter 74.
9 Mr. Holman says he meets the one argument that we
10 raised in our response that this was a judicial
11 admission made by defense counsel; but, of course, I
12 didn't make one argument in my response, I made three
13 arrangements in my response. I argued it was a
14 judicial admission, but I also argued that it was a
15 waiver because counsel made a stipulation to these
16 lawyers and to the Court that he would not assert a
17 defense. And even if you have a legitimate legal
18 position, a lawyer representing a client can choose to
19 waive that position; and defense counsel did that.
20 And you cannot overcome that by saying the evidence
21 was conclusive. He stipulated he would not assert
22 this defense, and he has to be bound by that
~ stipulation.
24 And the third argument I made, he needed
25 your leave to file an amended pleading asserting
000371
42
this defense on behalf of Ms. Uduma. You didn't give
2 him that leave because, when counsel on this side of
3 the table asked for a clarification of your ruling,
4 you looked at him and you said: Are you asking for
5 relief for Ms. Uduma? And he said no. He does not
6 have a ruling granting him leave to amend and assert
7 Chapter 74. He has waived that consciously. That
a means it's immaterial whether it's a judicial
9 admission.
10 Now, with respect to the judicial
11 admission point, Auld is the only case cited by the
12 parties that deals with the application of Chapter 74;
13 and Auld stands for the proposition that whether you
14 are a health care provider is a fact that can
15 be judicially admitted. And I believe it was admitted
16 here, but that question is not even before the Court.
17 I'm going to touch finally on the duty
18 question with respect to Ms. Uduma. I don't think
19 we're really in any disagreement about the law.
20 I agree with Mr. Holman's statement of the
21 basic principles. I also agree with his statement of
22 the exceptions with regard to the retention of
~ control.
24 The Osti case is the key case on this
25 point. It is a Houston 14th Court of Appeals case and
000372
43
it is in the fire safety context. And the Houston
2 court held that control remained with the property
3 owner with respect to safe egress from the property
4 and the tenant didn't have the obligation to provide a
5 safe fire escape. Mr. Holman tries to distinguish
6 Osti, but I submit he cannot distinguish it on its
7 facts. He says that a structural problem in the
8 premises is what Osti is all about. That's what this
9 case is all about. The dead-bolted fire exit without
10 the key is in violation of the applicable property
11 ordinances and creates a premises defect. It is a
12 structural defect. It is the same as a wall because
13 you couldn't exit. And, in addition, there was
14 evidence at this trial that there should have been
15 overhead sprinklers in this facility. That is another
16 structural defect that falls squarely within the Osti
17 rule.
18 The argument that's made today that the
19 control that Ms. Uduma exercised over the premises
20 with respect to the fire escape procedures and the
21 fire safety procedures definitely falls within control
22 of the property. And it was for the jury to decide
23 whether she exercised that control as the property
24 owner or as an agent of Four J's.
25 The jury was asked to apportion fault
000373
44
between Four J's and Ms. Uduma personally. The jury
2 made this resolution, that she had that control and
3 she acted negligently. And that finding should be
4 upheld.
5 THE COURT: Thank you. I have got a few
6 questions for you.
7 MR. POST: Of course, Your Honor.
8 THE COURT: All right. Just so that
9 we're all clear here, are Plaintiffs persisting in
10 argument that their claim against Ms. Uduma was in her
11 capacity only as the premises owner?
12 MR. POST: As opposed to, again,
13 capacity as the agent, Your Honor?
14 THE COURT: Or anything else.
15 MR. POST: Well, I hadn't even thought
16 about anything else.
17 THE COURT: Negligence. Negligent
18 activity. The only theory of recovery against
19 Ms. Uduma is against her in her capacity as the
20 premises owner?
21 MR. POST: I believe that is correct.
22 Let me confer with lead trial counsel, since I wasn't
23 at the t r i a l .
24 (Pa use. )
25 MR. POST: I think that's right, Your
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45
Honor.
2 THE COURT: Okay. Now, the -- is it the
3 Johnson case -- whatever Supreme Court case -- that
4 talks about a landlord's duty or lack thereof
5 MR. POST: Yes, Your Honor.
6 THE COURT: -- and sets out the three
7 exceptions? It talks about the exception for a
a landlord to retain control of a portion of the lease
9 premises. I think the standard thought is the common
10 areas in a condominium or in an apartment complex or
11 whatnot. And your -- as I understand, your argument
12 is that, well, Osti explains that that also addresses
13 control of access and departure, egress and exit --
14 access and egress -- it's been a long day;
15 excuse me -- of the property. Is that what you are
16 arguing?
17 MR. POST: That's right.
18 THE COURT: Okay. What -- what evidence
19 do I have that Ms. Uduma maintained control of any
20 structural changes to the property?
21 MR. POST: Well, Your Honor, I believe
22 that the testimony was that she, obviously, is the
23 property owner; that she made the decisions about the
24 fire safety systems, the systems that had been
25 installed, the systems that had not been installed
000375
46
with respect to sprinklers; that she was the
2 individual who worked with the fire marshal on the
3 OMNI systems on dealing with inspections; that she was
4 aware of the dead-bolted door. All of that
5 is evidence from which the jury could draw a
6 conclusion about the capacity in which she was
7 exercising control.
8 Essentially, the argument that's made by
9 Defendants is that she wore two hats; and, therefore,
10 when she undertook this activity, she was necessarily
11 wearing her Four J's hat. I don't think the evidence
12 of that proposition is conclusive. And so it's for
13 the jury to decide. The jury was asked: Do you find
14 Four J's liable? Do you find Uduma liable? And the
15 jury made that determination and apportioned fault.
16 And I think that the jury had enough evidence before
17 it to conclude that Ms. Uduma was acting in her
18 capacity as property owner when she was dealing with
19 these issues.
20 THE COURT: All right. Do you want to
21 make any responsive reply?
22 MR. HOLMAN: Yes, Your Honor.
23 First of all, Mr. Post started his
24 argument by saying that we have some duty to get jury
25 findings about our status as a health care provider.
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There is not a single case in Texas jurisprudence that
2 would ask a health care provider to get jury findings
3 on that. That's a matter of the Court's
4 interpretation of statute based on the undisputed
5 evidence.
6 THE COURT: Is there any case that says
7 it's a question of law as opposed to a question of
8 fact?
9 MR. HOLMAN: Well, there is cases that
10 talk about it being a construction of statute as a
11 matter of law. And we would submit that we have
12 undisputed --
13 THE COURT: What am I construing?
14 I'm just looking at the definition and applying it to
15 the party to determine whether they satisfied the
16 definition, right?
17 MR. HOLMAN: True.
18 THE COURT: Why isn't that a question of
19 fact?
20 MR. HOLMAN: Well, the question -- it's
21 not a question o
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