# in Re Patti J. Wagner, as Guardian of Jenny Wagner, an Incapacitated Adult > Texas Court of Appeals, 1st District (Houston) · September 8, 2015 URL: https://www.frixlaw.com/law-library/cases/4068071 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** September 8, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4068071 ## Opinion text 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) •nal goals, and needs necessary to allow Esperanm to continue to reside in the community and prevent her rc-institutionull~tion . ENROLLMENT lNFQBMATION Esperanza was enrolled in Four J's Communlly Living Centers Jnc. Home and Community Based Services program on Aueust 8, 2005 from Corpus Christi Stare School. Espcro.n:m is not adjudicated incompetent by the court ~cm, 1111d tbcrcforc, is- her own legaJ guardian. Esperama's Righls of the Individual were reviewed with her at the time of her enrollment and address 3gofo during this stnffing. Esperan?.a and her slate school IDT arranged for Esperanza to visit numerous HCS programs and she c;hosc Four J's Commwlity Living Ccntc.rs, lnc. 10 provide her HCS service!. £.5peron:z.a•s choice of residence MFalimcssed. She requested a 4-bed HCS ------ residence. Her preference was for a four-bedroom, two-bothroom home in a resid~n1ial neighborhood and the 8354 S. Meadow Bird Circle Drive home was ch~cn. The ~ PLAiNTJFF'S : EXHIBIT l &f tj 000438 NAME: Esperanza Arwla PAGE2 Individual Service Plan CASE NUMBER: 140 neighborhood offers access to community facilities such as the grocery store, post office, restaurants, recreation and shopping. BACKGROUND INFORMATION According to previous reports, Esperanza was born at home in Durango, Mexico with an attending midwife. The pregnancy was normal with no exposure to tobacco; alcohol or any other drugs. Birth was full term, labor and delivery was also normal. The breathing was spontaneous and the birth weight not recorded. No neonatal problems were noted. Developmental milestones were met at the following times: Esperanza crawled at eight months, spoke her first words as eighteen months, walked at two years ofage and was toilet trained at two and a half years of age. Mental retardation was first noted at the age nine as a result of a testing at school. At that time, she was assessed and placed in special education classes due to the handicapping condition of mental retardation. It is reported that Esperanza would fight with other children because she had difficulty understanding them. When Esperanza transferred to Middle School, she had irregular attendance and then stop going to school. While at Richmond State School, Esperanza was enrolled in Lamar Consolidated School District and attended classes there for four hours per day. The history obtained from Richmond State School reveals that at age 12, Esperanza was admitted to the hospital overnight for sexual abuse~ No further details of this incident were available nor the perpetrator ofthe abuse situation identified. Esperanza stated· that she began drinking beer at age 14 and indicates that she has had experience with tobacco, cocaine and other substances. Esperanza stated she has had multiple sexual partners. Records also indicatethatshehashad several sexually transmitted diseases ill the past and possibly has traded sexual favors for drugs. She is the third of seven children born to Margarita Arzola and Jose del la Luz Arzola. Mrs. Arzola worked as a housekeeper and Mr. Arzola worked as a construction worker, Her siblings are as follow: Felipe, Ernesto, Norma, Maricruz, Leobardo, and Pedro Arzola. Four of her siblings were placed in foster care. One family has adopted the two sisters and the two brothers by another family/ Esperanza's parents moved to Dallas from Mexico in 1992. (Family may still be residing in Dallas or may have returned to Mexico.) Records indicate that Esperanza was emotionally, physically, and sexually abused by both biological parents to the extent of their parental rights being terminated in November of J998. Esperanza accused her father of sexually abusing her on several occasions and Esperanza has no desire to resume relationship with her father. Records from TDPRS also indicated that Esperanza's mother, Margarita Arzola, may have prostituted Esperanza in the past, or at least, failed to protect her from engaging in risky sexual behaviors. Records from TDPRS indicated that they first became aware of a neglectful situation involving the Arzola children in 1993 following a report by a neighbor. According to the reports, Mrs. Arzola was aware that her husband was sexually abusing the children, but continuq4Jp. Y~i with him. At Esperimza' s previous placement, Richmond State School, they a'ffoweaperiodic phone contact between her and her parents, in spite of the requested restriction from the LAR, Dallas County Child 000439 NAME: Esperanza Ar.wla PAGE3 Individual Service Plan CASE NUMBER: 140 Protective Services. As a result, Esperanza exhibited sever bouts of self~abuse and depression. Reportedly, the parents would verbally assault Esperdflza, blaming her for their termination of parental rights and for the scrutiny of law enforcement into their home. In addition, her parents facilitated an unauthorized departure from Richmond, where they picked her up and took her back to the Dallas area. It was at this time when Esperanza became infected with herpes as a result of the sexual activitybetween her and her father. Esperanza reportedly was hospitalized in DeSoto, Texas in 1995 to treat sexual abuse. She had multiple contacts with Dallas Juvenile Justice Department for running away, evading arrest, and manifestation of prostitution, probation violation, and assault. She has a long history of multiple placements: • Letot Center 9/12-9/17/97 • YMCA Casa Del Los Amigos Shelter, eloping after three weeks placement • Returned to Letot Center • Buckner Center in Dallas 10/97, eloping after two or three weeks • Haven Residential Treatment Center until 11/4/97 • Kaufman County (Texas)Children's Emergency Shelter for ten days • East Texas Open Door (Marshall, Texas) tintil 4/17/98 • WiUoughly Juvenile Center in Marshall • Dallas County Juvenile Detention Center witil 7/13/98 • Richmond (Texas) State School 7/13/98-7/11/00 • Corpus Christi (Texas) State School l l/12/0J..,8/8/05 (placed at San Antonio [Texas] State Hospital 9/16-10/14/04 after using scissors to attemptto stab a staff member) DETERMINATION OF MENTAL RETARDATION The most current psychological evaluation dated 12/01/04 indicates that Esperanza was tested on 01108/98 utilizing the Woodcock-Munoz where she received a Broad Cognitive Ability LSTD Score of 45. The Wechsler Intelligence Scale for Children was used on 05115198. Esperanza's scores were as follows: VIQ of HCS and generic services. She is able to give informed consent or register complaints. She is able to exercise her rights by receiving and opening mail and expressing her wants and needs. The team agrees that Esperanza is capable of being her own legal guardian and the IDT has agreed that the Esperanza has an advocate, Luz Carver, who continues to assist Esperanza with her decision-making. Therefore, no application for a legal guardian is necessary at this time. CASE MANAGEMENT Case Management services were identified in the amount of 12 months during the previous IPC plan year. As at 08/03/08 12 months have been utilized for coordination of the development and implementation of Esperanza's ISP, coordination of the delivery of her IPC, coordination and monitoring of the delivery of her waiver and generic services, integration of various aspects of services delivered under the waiver and through other resources, recording of her progress, maintenance of her records and arrangement of transportation. DISCUSSION AND DELIBERATION: Case manager infom1ed the IDT that the 12 months allotted for case management last year were·utilized to monitor the following objectives: O The Case manager will monitor all services at least quarterly: Quarterly reviews were completed on October 2, 2007, January 3, 2008, April 2, 2008 and July 2, 2008. Services reviewed included Case Management, Residential Support Services, Nursing, Day Habilitation, Vision~ Annual Physical Examination, Dental, Lab work, Immunization, Weight and Blood Pressure, Psychiatry and Psychology. No significant problems were addressed during this year. Case manager addressed the issues as they arose. 0 The Case Manager will meet face to face with Esperanza ArLola at least monthly: The following Face to Face contacts were made this past year: • 09/01107-At the Riverside Hospital. • 10/1/07- At Four J activity Center. • l 1/01/07- At Esperanza's residence. • 12/01/07- At the Four J activity Center. • OI/02/08-At Esperanza's residence. • 02/01/08- At the Four J activity Center. • 03/01/08-At Esperamsis 1~35 Berctta CT residence. • 04/01/08- At Case Manager's office. • 05/01108- At Esperanza's residence. 000443 NAME: Esperanza Arzola PAGE? Individual Service Plan CASE NUMBER: 140 • 06/02/08 At the Four J activity Center. • 07101108 At Esperanza's Residence. • 08/01/08 At Case Manager's office o Case Manager will coordinate/monitor non-waiver services as needed when identified in the ISP to support a personal outcome: No non-waiver services this quarter. This plan year the IDT is recommending 12 months of Case Management of this IPC- period. Case Management will be utilized to provide for coordination of the development and implementation of Esperanw's ISP, coordination of the delivery of her IPC~ coordination and monitoring of the delivery of her waiver and generic services~ integration of various aspects of services delivered under the waiver and through other resources, recording of her progress, maintenance of her records and arrangement of transportation. RECOMMENDATION: J. Continue 12 mo!lthS of case management services for the implementatiop. of the services identified above. 2. Complete a mlementation and inservice of staff. • 2 Hours for attendance at II::J¥i£e\i'lfiig in order to review progress on behavior therapy progran1, review recommendations, discuss ideas for revisions, and discuss issues related to psychological well being. 000455 NAME: Esperanza Arzola PAGE19 Individual Service Plan CASE NUMBER: 140 DISCUSSIONS AND DELIBERATIONS= The team reviewed the psychologist Behavior Therapy Program. The team agreed that a Behavior Therapy Program targeting deceleration of aggression, self-injury, property destruction, and eloping would be implemented. The recommendations were accepted . •JUSTIFICATION FOR SERVICES: The team agreed that 6 hours of psychology services is justified based on Es,peranza's need for quarterly monitoring (4 hours) as well as attendance at IDT meeting in order to review progress on the behavior therapy program, review recommendations, discuss ideas for revisions. and discuss issues related to psychological well-being (2 hour). DENTAL Dental service was ordered in the am.ount of$240.00 for current lPC plan year. Through 08/1/08, $240.00 dental services have been utilized. The IDT has agreed that $300.00 of dental service would be on the IPC this plan year. On 10/10/07, Esperanza was seen by the. dentist Dr. Beans fordental examination and. cleaning. On evaluation the general condition ofteeth good, condi#on of gums fair, Mild gingivitis noted. Oral hygiene fair. Recall appointment given in 6 months. On 04/15/08, Esperanza was seen by the Dentist Dr. Beans for dental examination and cleaning. The general condition of teeth good, Conditions of gums fair.. Mild gingivitis noted. Oral hygiene good. A return visit given in 6 months. RECOMMENDATIONS: 1. Esperanza should complete a six moth dental exam/cleaning with· Dr. Bean, dentist, by 10/08 and as needed/recommended by the dentist through 08/2009. 2. Esperanza's IPC should reflect $300 for dental. DISCUSSION AND DELIBERATIONS: 'lne reviewed Esperanza's past dental record from Corpus Christi State School and recommendations were accepted. JUSTIFICATION FOR SERVICES: The team agrees that $300.00 for dental services is justified based Esperanza's need for dental exams and cleanings. It is routine community practice to obtain a cleaning and exam every 6 months in order to maintain and monitor good oral hygiene. Each dental examination and cleaning costs $150.00. Therefore two procedures will require $300.00. Esperanza does not have any other means to cover the cost of these services other than her personal funds. Therefore, this servic~Si~~treplace existing natural supports or other non-program sources as these supports and source are not available. 000456 NAME: Esperanza Arzola PAGE20 Individual Service Plan CASE NUMBER: 140 ADDITIONAL ISSUES ADDRESSED BY THE INTERDISCIPLINARY TEAM 1. Is Esperanza's current legal status appropriate in that she can make informed decisions regarding her health, safety, and welfare and express choice and preference as it relates to her service needs? Yes. An assessment of Esperanza's legal status was completed by the case manager on 8/1/08 and addressed by the IDT at the annual meeting. The IDT has agreed that Esperanza is capable of making informed deeisions regarding her health, safety, and welfare as well as expressed her choice and preferences. 2. ls Esperanza's HCS enrollment appropriate considering her choices and needs? Yes, Esperanza bas expressed her choice and needs and has agreed that she should be enrolled into HCS. The IDT agrees that the HCS program can meet Esperanza's needs as outlined in this report. 3. Is Esperanza's current residence type of Residential Support Services appropriate considering her choices and needs? Yes, Esperanza expressed her wishes to receive Residential Support Services in her present home to meet her needs and outcomes. In regards to her needs,. the residential type is appropriate with an awake staff to ensure her health, safety, and welfare as describe in this report. 4. Were Esperanza's preferences regarding the location of the home and furnishings in the home in which she resides promoted? Yes, Esperanza expressed her preferences for her to continue to live in her present home with her furnishing. She informed the team that everything regarding the residence was tO her liking. 5. Were Esperanza's preferences regarding a housemate promoted? Yes, Esperanza bas agreed to the current housemates living in her residence at this time. 6. Do the residence, neighborhood, and community in which Esperanza resides meet her needs and choices and provide an environment that assures her health, safety and welfare? Yes. Esperanza's needs arc met in her current environment. Esperanza does not have any special needs. The IDT reviewed the Environmental Safety Checklist completed on 6/12/08. The environment assures her health, safety and welfare. 7, Does Esperanza require any adaptive aids at this time? No. Esperanza does not require any adaptive aids at this time. 8. Does Esperanza require any minor home modifications at this time? No. Esperanza does not require any minor home modifications at this time. 9. Has the Interdisciplinary Team addressed the use of ongoing community services and resources to meet Esperanza's needs? Yes. The team has considered the use of ongoing community services and resources to meet as many of Esperanza's needs as possible in the same way and during the same hours as these generic services are used by the community at large. Esperanza's Medicaid card will be used for the purchase of her medications as needed. Esperanza's family is not able to provide ongoing routine services to her in place of HCS sen•ices. EsperanzarJg~-m» have any other friends, church, or community organizations that arc abteviO contribute to meeting her waiver needs. 000457 NA.t\1E: Esperanza Arzola PAGE21 Individual Service Plan CASE NUMBER: 140 10. Did the case manager infom1 IDT members about transfer options available, that they have a right to transfer Esperanza Arzola to another provider at anytime? Yes. The team reviewed and discussed with Esperanza Arzola and his JegaI Guardian the transfer options available. Esperanza Arzola and his IDT chose to remain with Four J's as the provider. CONSUMER'S STRENGTHS 1. Esperanza's health is stable. 2. Esperanza has an advocate. 3. Esperanza can perform most of her self-help skills. 4. Esperanza is toilet trained. 5. Esperanza is ambulatory. 6. Esperanza is able to feed herself. 7. Espemnza can read and write. TRAINING AND SERVICE OUTCOME I. RESIDENTIAL ASSISTANCE 'l'R.AJNING O'{JTCOMES A. RESIDENTIAL ASSISTANCE GOAL #I: Daily Living Skills OBJECTIVE #1: Esperanza will dr~ss up her bed once daily CRITERIA; with no mor:e than 4 verbal. prompts eac.h session., 20 of 30 successful sessions per month for 3 months. The number of promptings will. be reduced any quarter that Esperanza consistently meets criteria until she can accomplish the task independently. GOAL#II: Household Maintenance skills OBJECTIVE# I: Esperanza will tidy up her bedroom. CRITERIA: Once weekly with no more than 4 verbal prompts, 3 of 4 successful sessions per month for 3 months. The number of promptings will be reduced at the end of any quarter that Esperanza consistently meets criteria until she can accomplish the task independently. Il. DAY HABILITATION TRAINING OUTCOMES GOAL #1: AVOIDING AND RESOLVING CONFLICTS OBJECTIVE #1: Esperanza will ignore offensive behaviors of others, once daily independently, 10 of 20 successful sessions per month for 3 months. GOAL#2: EXERCISE SKILLS OBJECTIVE # 1: Esperanza will exercise in the a.m and p.m for 30 mins once daily with 4 verbal prompts, 10 of 20 successful sessions per month for 3 months. DEF201 000458 NAME: Esperanza ArLola PAGE 22 Individual Service Plan CASE NUMBER: 140 TRAINING AND SERVICE OUTCOMES III. SERVICE GOALS GOAL #1: PHYSICAL EXAM AND LABWORK STRATEGY: The nurse will ensure that Esperdllza obtains a physical with lab work by 09/2008. GOAL#2: PPD SKIN TEST STRATEGY: The nurse will ensure that Esperanza completes a PPD skin test by 09/2008. GOAL#3: WELL WOMAN EXAM STRATEGY: The nurse will ensure that Esperanza completes a well woman exam by 112009. GOAL#4: DENTAL EXAM AND CLEANING STRATEGY: The nurse will ensure that Esperanza completes a dental exam and cleaning by 10/2008 and as needed/recommended by the dentist through 08/2009. GOAL#S: PSYCHIATRIST STRATEGY: The nurse will ensure that Esperanza completes all follow~up visits with the psychiatrist as needed/recommended through 08/2009. G0AL#6: VISION EXAMINATION STRATEGY: The nurse will ensure that Esperanza obtains an annual vision exam by 05/2009. GOAL#7: DEPO~PROVERA lNJECTIONS STRATEGY: The nurse will ensure that Esperanza obtains·a Depo~Provera injection by l 0/05 and every three months thereafter through 08/2006. GOAL#8: SELF ADMINISTRATION OF MEDICATION ASSESSMENT STRATEGY: The nurse will complete a Self Administration of Medication Assessment for Esperanza by 7108. GOAL#9: PSYCHOLOGY QUARTERLIES STRATEGY: The psychology will complete quarterly reviews on Esperanza's BTP to address her targeted behavior through 08/2009. DEF202 000459 ESPERANZA ARZOLA #140- DOB 02/14/1983 DATE OF ADMISSION 08/08/05 16335 BERETTA COURT' MISSOURI CITY, TX 77489 ESPERANZA'S DIAGNOSIS Mild Mental Retardation, Dysthymia) Polysubstance Abuse, and Personality Disorder wjth features of Borderline, Histrionic and Antisocial, Morbid Obesity, Seizure Oisorder, andDeformity, right foot {calcaneal varus). Esperanza does have a history of seizure but has not had one since December 2002. Diet: Weight maintenance di~t with fresh fruit snack at I O.OOam. Important things to know about Esperanza: 1. Esperanza's health is stable. 2. Esperanzahas•an advocate. 3. Esperanza is toilettrained. 4. Esperanza is.fully ambulatory. 5. EsperaIIZa is able to feed herself. 6. Esperanza is a legally completed adult. 7. Espi:;ranza can verl?alize her wants and needs. 8. Esperanza has mild visual impainfient (20/25 bilateral visual acuity, related to hyperopia that can be corrected with glasses). 9. Esperanza has a moderate- to- severe mixed hearing loss for the right ear and moderate ...:.to-mild conductive hearing loss for th.e left ear. 10. Esperanza communicates in complex sentences and complies with complex requests in English and SpaniSh. 11. Esperanza independently performs all self- care tasks (i.e. dressing, bathing, grooming, and tooth brushing). although staff may occasionally be required to assist her to perfonn them. 12. Esperanza is toilet trained with occasional enuresis. 13. Esperanza actively participates in training and socjal activities, 14. Esperanza frequently initiates· interactions with staff and other consumers. 15. Esperanza has limited reading and writing skills. 16. Esperanza performs simple food preparation tasks. 17. Esperanza can travel independently on a city bus. DEF203 Likes and Dislikes~ 000460 Likes. l. Esperanza likes going to dances, parks and movies. 2. Esperanza enjoys listening to the radio. 3. Esperanza enjoys watching movies. 4. Esperanza likes conversing with peers. 5. Esperanza enjoys playing video games. 6. Esperanza likes working on the computer. 7. Esperanza likes to wear her hair short 8. Esperanza likes to wear jeans, t~shirts and shorts. 9. Esperanza enjoys sports and likes to play basketball, volleyball, and kickball. 10. Esperanza enjoys cooking and can operate stove and microwave. 11. Esperanza enjoys Mexican, Chinese and sea food. 12. Esperanza likes going out to eat. Dislikes: 1. Esperanza dislikes being talked to disrespectfully. 2. Esperanza dislikes BBQ and oven fried chicken. 3. Esperanza dislikes having to wait for anything she requests. Behaviors: 1. Esperanza is non~compliant most of the time. 2. Inappropriate behaviors observed were elopement; fighting with staff and consumers, destroying property, and verbally abusing staffand peers. 3. Esperanw has a history of illicit drug use, sexual promiscuity, sexual abuse, suicidal attempts, pica, mood swings and non compliance. 4. Esper.mza participates in a behavior therapy program targeting deceleration of aggression, self injury, property destruction, and eloping DEF204 000461 TABB 000462 rte 01$lA IC J CllAI hr I 2otl9 15: 21 P. 0 I ANJJE RJ:BECCA ELLIOTT ! Dlatrfot dlerk i &tat. of TitQ• f Olfnty of Fort Bend Fa>c Number: 113.779.9759 • Attention: DR. KAREN GAi.LAHER~INCLAJR .I Oate: March I, 2009 • Number of p19H faxed lnclud~g thJa page: 8 OIVll/CRIMfNAkl~~~~ 4 ; )"'2.I I. Cause No. ... ~l tp ; STATe OF TEXAS v•. 9~ERANZAV.·ARZOLA i OTHER INFQRMA TION; : INDICTMENT AND M~OION . ORDER 81JOOE8TINCI INCOMPl!TENOY, MENTAL R6TAROATI AN NSANllY AND fU!QUE8T l'OR !XAMIN~ 1 • \ . From: Ot,._. Olt* Ot~ HlL\.YOAvd CBlMtJAJ..ftl TUftd I t Rtc:elVtd BY:-------'~------- 0.tit._ __ _ _ _ __ cpNPJDENJWJTY NOJIOE . Tiit 111t011MU011 contlllntd In lhlt f:lullnle me(u ga and 1~1AWfnD dOCUIMnlt la l•t•'Y PrMlt114 ind Olftfi4111ll1J lllfonneu.11 111\•ndtd olW lot 1ti1 utt orlli• llldfVldUll er.ntr'1)1 nll!IW ~"°"'· It you h•Y• rootfil•d \hit J•teoow Ill •'!Or. P-IH M 11t1mtdl1l•lr 110\iy '"by tlkpho111111C1~1tum tllo 011t111a1mM HllOto111 ol tlit 1d41. . . •hown bOklW '111 Vnlltd DtalOJ PC111t11 1ervlot, ll1•M~ou. . 301 J1ok1on Street RJc, rnood, Texu 77489 (281) 342. 3411 .. 000463 FOC DISTRICT ClERK Mar S 2009 15:26 P.02 S-1:17:1 ....,; {{f 1 1451l1D~) TIIE STATE OF TEXAS § IN TllE DISTIUCT COURT I v. I 268™ JUDIClAL DISTRICT ESPERANZA V. ARZOLA ' • § FORT BEND COUNTY, TEXAS MOTIQN SQGGE§JJN(i~O)fPE~)',M.JtNTAL R!'rABPA'fl9.tl AN!> RiiA&TYVJ!lii REO!mSI l.QB.EXAMIN6tION TO THE HONORABl..E JUDGE ~FSA.JD COURT2 Now comes Bspera~ v:, Al'zola 1 Defendant, Md ftles this motion suggesting inoompotonoy, mental retardation *d Jnsanity and request ibt exam!nt\tion of Bsperanz.a V. Arz:ola. Dofendsnt. will respect to the. issue of'thc compatenoy, mental rctardstJoD , and insanity of Dofondant t() stand trial herein, und $owa as follows: 1. There Js an wuc in ·~ oausc regarding whother Dcflmdant la 0 compotcnt" to stand crial herein, as such term is ciafined by Article 46B.003 of tho Texas Code of Crtminal Prooedute. Il l. Request is hereby rruide that one or more disi.n~ated experts be appointed aa provided by Article 46B of the Texas Code of Cnminal Prooedure to examine Defendant with . ; . . regard to the comtietency of Def\lndab.t to stand trial p.nd DtJfendari.i•s m6nud status and lnsanlty. 3. Request Is further made for Defendant to be examined by a psychiatrist OMlJEB FOR ASETTI!Ui On - - - - - - - - - - • 2009, tho Dofbndant filed a Motion Susgesting Inc¢mpctoncyJ Mental .Retardation 1d Josentty .and Request for Bxa.minatlon. The Court finds that the party is entltl~d to a he.arm~ on this matter, and it fs THEREFORE OR.PER.ED that a. hearing on. this motion is eet for_~;------~ at _ _ __ JUDGE PRESIDING 2 lI l I } I 000465 rec OISTRI Cf ClCRK Mer 6 2009 lS:?9 . .... ~­ ' v ~l~t~ Q/~7/ N0.51170 THE STATE OF TEXAS § IN THE DISTRICT COURT § v. t l68T" JUDICIAL DISTRICT I ESPERANZA V. ARZOLA 0 trORT BIND COUNTY, TEXAS ORDQ , 2009, camo to be oonsfdored E3petwa V. As:;ola's Motion Sussostlng Incompolouoy~ Mental . o\'aluetiona. Q UJ -u. ..J 3 000466 fBC OISTRICT CLERK Mar 6 2009 15:29 P.05 vs. o.o~n.t 02/14 1983 UN wo.1 00135041 ARSON INTEND DAMAGE niQ'llY oJl,>;l\oi:i DA Jlli1J\Y NO.I 08253002 HAB:I'l'~T/P4ACE .OF WOR.SHIB / Fi CJ\UBll NO; 6. .MW!8'r DJl'Rt 09/06/2008 Di '1'1\ZO:t' COin\~ NOi · . SD• September o~, 2008 . G. J. ·WITNijSSES I IN T~E N~E •AND SY AUTHOR!'rY QF TtlE STA'tE OF '.rS-XAS: i . The dU.ly o~gani·~ec\ Or~.nd Jurfr · o.f . f:ort ~.~n~ County, T~X~e,, prtlse1:1ta in t: .e Dia.tric·t COUl;t of For~ Bend 'C('.\Linty, T~xt'u1, that in ·Fort aenQ. co1..mty·; Texa , 2SP.IPANZA A2Z:OLA, nerea.fter s~yled the Defena1mt, h~reto.for-~ o.n or about S~pt~er 04, 2ooe, di.d then ~d t.here ! ~ PARAORAP~ A start a fire with intent to de.mage or destroy a hnbitation owned or occupied by .Ant.onia Ueci er 04 1 . 2009 1 did th~n ~nd ther~ intentionally, know1n$ly, a reck.leaely cause bodily injurr to JENNY WAGNER by starting a fire with \ oigarette lighter to a pJ.ece o'f. paper on· a bed i.nside a :t"esid.ence located 16,335 Beretta tt., Missouri C!ty, Texas, in wnic~ Jenny Wagner was looat \ at the time which the eaid fi~e was ignited, and. tba defendant did then a thfl)re u.ee and exhibi.t a deadlyt weapon, to-witi f.~re and a oiga.rette l:ighte , that in the manner of its use (Ind intended use was capable of causing aerie a b~dily injury or death, durin~ the commission of said assault. u::i ~- • \ ; 0 • p.; I 9 ~. l::tV1' i = \ \ Suite 100 Houston, TX 77046 Russell Post, Esq. Connie Pfeiffer, Esq. Beck, Redden & Secrest, 11..P 1221 McKinney St., Suite 4500 Houston, TX 77010 James C. Plummer -2- 000518 'b. 5213 Local Rule Notice of and Assignment of Related Case In Original Proceedings As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the following related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals: X None D Caption: Trial court case number: Appellate court case number: [Signature of certifying attorney or prose party] [Date] Note: See Local Rules for the definitions of "underlying case,') "related," and "previously filed." 000519 y MANDATE Court of Appeals First District of Texas NO. 01-12-00796-CV ANTHONIA UDUMA, Appellant V. PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN INCAPACITATED ADULT, Appellee Appeal from the 269th District Court of Harris County. (Tr. Ct. No. 2009-40925). TO THE 269TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS: Before this Court, on the 27th day of August 2014, the case upon appeal to revise or to reverse your judgment was determined. This Court made its order in these words: This case is an appeal from the interlocutory order signed by the trial court on August 23, 2012. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that there was no reversible error in the trial court’s order. Accordingly, the Court affirms the trial court’s order. The Court orders that the appellant, Anthonia Uduma, pay all appellate costs. 000520 The Court orders that this decision be certified below for observance. Judgment rendered August 27, 2014. Panel consists of Justices Jennings, Sharp, and Brown. Opinion delivered by Justice Sharp. WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this behalf and in all things to have it duly recognized, obeyed, and executed. September 4, 2015 Date CHRISTOPHER A. PRINE CLERK OF THE COURT 000521 1 1 REPORTER'S RECORD VOLUME I 2 TRIAL COURT CAUSE NO. 2009-40925 3 4 ) PATTI J. WAGNER, as ) IN THE DISTRICT COURT 5 Guardian of JENNY ANN ) WAGNER, an Incapacitated ) 6 Adult ) ) OF HARRIS COUNTY, TEXAS 7 V. ) ) 8 FOUR J'S COMMUNITY LIVING ) CENTER, INC., ANTHONIA ) 9 UDUMA and GODFREY UDUMA ) 269TH JUDICIAL DISTRICT 10 11 12 ------------------------------ 13 PRETRIAL MOTIONS, VOIR DIRE, 14 STATEMENT OF FACTS 15 ------------------------------ 16 17 18 19 On the 17th day of October, 2011, the following 20 proceedings came on to be heard in the above-entitled 21 and numbered cause before the Honorable Dan Hinde, Judge 22 presiding, held in Houston, Harris County, Texas; 23 Proceedings reported by machine shorthand. 24 Annette Peltier, CSR, RPR, CLR Deputy Official Court Reporter 25 Harris County, Texas Cause No. 2009-40925, Wagner Vs. Four J's, et al 000522 Volume 1 2 1 A P P E A R A N C E S 2 FOR THE PLAINTIFF, PATTI J. WAGNER, as Guardian of JENNY ANN WAGNER, an Incapacitated Adult: 3 MR. L. LEE THWEATT 4 TBA NO. 24008160 MR. JOSEPH TERRY 5 TBA NO. 24013618 Terry & Thweatt, P.C. 6 One Greenway Plaza, Suite 100 Houston, Texas 77046 7 Phone: 713.600.4710 8 FOR THE INTERVENOR: 9 MR. SHELTON SPARKS 10 TBA NO. 06507160 Shelton Sparks & Associates 11 706 Cordell Street Houston, Texas 77009 12 Phone: 713.862.4913 13 FOR THE DEFENDANTS: 14 MR. JAMES C. PLUMMER 15 TBA NO. 16075700 Plummer & Kuykendahl 16 4203 Montrose, Suite 270 Houston, Texas 77006 17 Phone: 713.522.3605 18 19 20 21 22 23 24 25 Cause No. 2009-40925, Wagner Vs. Four J's, et al 000523 Volume 1 3 1 I N D E X 2 VOLUME I 3 Page Vol. 4 Announcements......................... 4 1 Pretrial Motions...................... 12 1 5 Voir Dire by the Court................ 54 1 Juror Instructions to the Panel....... 60 1 6 Voir Dire by the Plaintiff............ 67 1 Voir Dire by the Intervenor........... 88 1 7 Voir Dire by the Defendant............ 115 1 Jury Seated........................... 227 1 8 Jury Instructions..................... 231 1 Plaintiff's Opening Statement......... 242 1 9 Intervenor's Opening Statement........ 254 1 Defendant's Opening Statement......... 265 1 10 Plaintiff's Witnesses 11 PATTI WAGNER Direct Examination by Plaintiff... 275 1 12 Direct Examination by Intervenor.. 304 1 Cross-Examination by Defendant.... 312 1 13 Redirect Examination by Plaintiff. 325 1 14 Adjournment........................... 352 1 Court Reporter's Certification........ 353 1 15 EXHIBITS PREADMITTED 16 Plaintiff's 1-33, 35-37, 39-40, 43-37, 50-53...... 48 1 17 Intervenor's 18 1, 2, 4-8, 10, 11, 15-24.............. 49 1 19 Defendant's 2-4, 7, 10-12, 15, 16, 18-25, 36, 37, 20 59, 64, 66-68, 70..................... 50 1 21 22 23 24 25 Cause No. 2009-40925, Wagner Vs. Four J's, et al 000524 Volume 1 4 1 THE COURT: All right. This is Cause 2 Number 2009-40925, Patti J. Wagner, as Guardian of Jenny 3 Wagner, an Incapacitated Adult, et al, versus Four J's 4 Community Living Center, Inc., et al. 5 Can I have appearances, please, for the 6 record? 7 MR. THWEATT: Good morning, Your Honor. 8 Lee Thweatt and Joe Terry for the plaintiff, 9 Patti Wagner, and on behalf of her daughter, 10 Jenny Wagner. 11 THE COURT: All right. 12 MR. SPARKS: Shelton Sparks and 13 Tiffany Harvey for the Intervenor. 14 THE COURT: All right. 15 MR. PLUMMER: Jim Plummer and 16 Amar Raval for the defendants, Four J's Community -- 17 Community Centers, and Anthonia Uduma. 18 THE COURT: All right. Thank you. 19 MR. PLUMMER: And our legal assistant, 20 Ms. Trevino. 21 THE COURT: Thank you. 22 All right. Plaintiffs ready for trial? 23 MR. THWEATT: Yes, Your Honor. 24 THE COURT: Intervenors ready for 25 trial? Cause No. 2009-40925, Wagner Vs. Four J's, et al 000525 Volume 1 5 1 MR. PLUMMER: Yes, Your -- 2 THE COURT: Excuse me. Intervenors 3 ready for trial? 4 MR. SPARKS: Yes, Your Honor. 5 THE COURT: Defense ready for trial? 6 MR. PLUMMER: Yes, Your Honor. 7 We do have a motion that -- 8 THE COURT: We're going to take that up 9 in a moment. All right? 10 All right. First things first. I 11 think we've already talked about this, the time limits. 12 I've set this for four days. So each side will get 13 seven hours to present their own witnesses and 14 cross-examine the opposing side's witnesses. 15 Let's talk here briefly: Mr. Thweatt, 16 Mr. Sparks, how much time do you need for voir dire? 17 MR. THWEATT: Your Honor, my partner, 18 Joe Terry's going to be handling voir dire. 19 MR. TERRY: 35, 40 minutes, Your Honor, 20 will be fine. 21 THE COURT: And is that just for 22 yourself or to be split with Mr. Sparks? 23 MR. TERRY: Just for myself, Your 24 Honor. 25 MR. SPARKS: Judge, I think no more Cause No. 2009-40925, Wagner Vs. Four J's, et al 000526 Volume 1 6 1 than 20 minutes. 2 THE COURT: How much time do you need, 3 Mr. Plummer? 4 MR. PLUMMER: Judge, I believe 35, 40 5 minutes will be fine. 6 THE COURT: All right. What I'll give 7 is 50 minutes for plaintiffs and intervenors to split 8 and 50 minutes, equal time, for you. 9 Do y'all want any warnings, a 10 five-minute warning or anything like that? 11 MR. TERRY: Sure, Your Honor. That 12 would be fine. 13 THE COURT: Well, do you want a 14 five-minute warning? 15 MR. TERRY: Yes, sir. 16 MR. SPARKS: Yes, sir. 17 THE COURT: Do you want a warning, 18 Mr. Plummer? 19 MR. PLUMMER: Yes, Your Honor. Five 20 minutes will be fine for me. 21 THE COURT: Mr. Thweatt, how much time 22 do you need for opening statement? 23 MR. THWEATT: I think about 40 minutes 24 would be -- 25 THE COURT: You need 40 minutes on this Cause No. 2009-40925, Wagner Vs. Four J's, et al 000527 Volume 1 7 1 one? 2 MR. THWEATT: I'll cut it down to 30, 3 Judge. 4 THE COURT: Mr. Sparks? 5 MR. SPARKS: 20 minutes. 6 THE COURT: All right. I'll give 7 plaintiffs and intervenors 45 minutes total. 8 Do y'all, again, want a warning of any 9 kind? 10 MR. SPARKS: Yes. 11 MR. THWEATT: Yes. 12 THE COURT: 45 minutes sufficient, 13 Mr. Plummer? 14 MR. PLUMMER: More than sufficient, 15 Your Honor. 16 THE COURT: Do you want a warning? 17 MR. PLUMMER: Yes, Your Honor. 18 THE COURT: Five minutes. 19 MR. PLUMMER: Five minutes is plenty. 20 THE COURT: And we'll worry about the 21 time limits for closing argument when we get there. 22 Just to let y'all know what to expect: 23 With our new jury facility right next door, we expect -- 24 I expect to get the jury here by about 9:30, maybe, at 25 the latest, 9:45. So we've got a lot of work to do in Cause No. 2009-40925, Wagner Vs. Four J's, et al 000528 Volume 1 8 1 the next 40 minutes because I don't make them wait. 2 As soon as we get the jury cards, they 3 will be distributed to you. If we're still in the 4 middle of arguing motions in limine and whatnot, they'll 5 be handed to you. If we're done, obviously, you'll have 6 more time to do that. But we'll get those cards to you 7 as soon as we get them. 8 Once they arrive in the hall, they need 9 some time to use the restroom and whatnot. We'll break 10 what we're doing here, and I will go out and greet them 11 in the hallway informally to welcome them to the court, 12 thank them for their service, and encourage them to 13 speak up during voir dire. That will give y'all a few 14 extra minutes to go over their cards. 15 Then we'll bring them in. Counsel will 16 conduct their voir dire examination from that podium 17 that's standing right there. The court reporter will be 18 over kind of behind where Mr. Plummer is, along the rail 19 to the gallery. So I can't have y'all walking back and 20 forth back there, especially since my court reporter, 21 unfortunately, is injured. I don't want anyone tripping 22 over her injured foot. 23 So you'll conduct your voir dire from 24 that podium. We'll do the entire panel examination. 25 Don't worry about motions to strike for cause during the Cause No. 2009-40925, Wagner Vs. Four J's, et al 000529 Volume 1 9 1 panel examinations. Just do your panel examination and 2 then we'll take a break for the panel while we'll call 3 back any jurors who you need to bring back for an 4 individual interview. 5 What will happen is when Mr. Plummer's 6 done with his panel examination, I'll call the lawyers 7 up here, then I'll ask you to give me just the numbers 8 of any jurors that you need to call back for an 9 individual interview. So be thinking about that. Don't 10 wait until I call you up to start thinking about who 11 y'all need to talk to again. 12 Unless I ask for an explanation, you 13 don't need to give me an explanation. Just give me the 14 numbers. Then we'll do the break while we're bringing 15 them back in one by one. 16 Again, don't worry about motions to 17 strike for cause during the individual interviews. 18 Let's just get all those individual interviews taken 19 care of. Then after that, we'll worry about motions to 20 strike for cause. 21 I'll ask you again, each -- each party, 22 give me the numbers of any jurors that you're moving to 23 strike for cause. Again, unless I ask you for an 24 explanation, don't start giving me your argument 25 because, basically, I want to see if there are any Cause No. 2009-40925, Wagner Vs. Four J's, et al 000530 Volume 1 10 1 double or triple strikes of people who, you know, looks 2 like everybody agrees on. 3 Then I'll ask you, okay, do you agree 4 on any of plaintiff's, do you agree on any defendants', 5 and then we'll argue the ones that are in dispute. 6 After that, you'll get about 10 to 15 7 minutes to do your peremptories, and I will bring the 8 jury back in and impanel the jury. 9 I've brought -- I've ordered a panel of 10 48 jurors; so it will start from Juror Number 1 to my 11 extreme right on the front row of the gallery, all the 12 way to Juror Number 16 on the front row to my extreme 13 left. We start with Juror Number 17 on the second row 14 and go all the way to Juror Number 32, and then Juror 15 Number 33 on the far right, all the way to Juror Number 16 48. So that's how we'll handle that. 17 One thing we do here, you're going to 18 find out, if you haven't already figured out, I value 19 the jury's time very highly and I try to make sure that 20 we use their time as efficiently as possible. So we're 21 going to be working very hard to make sure that as much 22 of the time during the day is spent with them in the 23 box, presenting witnesses, evidence, and argument to 24 them, as possible. 25 Sometimes, obviously, we have to Cause No. 2009-40925, Wagner Vs. Four J's, et al 000531 Volume 1 11 1 have -- we have to have conferences outside the presence 2 of the jury. We have some unique technology here that 3 allows us to do that without having to shuffle the jury 4 back and forth to the jury room or without requiring us 5 to whisper up here under our breaths and it also allows 6 us to have the conferences on the record. It's a white 7 noise system. 8 What will happen is I will turn on the 9 white noise system, y'all will come up here, you'll 10 speak directly and in a regular voice towards this 11 microphone here. I'll speak towards my microphone. The 12 court reporter will be able to record it. 13 Meanwhile, the speakers over the jury 14 box will be broadcasting white noise; so all the jurors 15 can hear is white noise. I've interviewed every jury 16 after every trial I've had in this court to make sure it 17 works; and every time they told me they could not 18 understand what was being said between the lawyers and 19 the judge during these conferences. It's an amazing 20 timesaver, and it allows us to get through that stuff 21 pretty quickly. This is what it sounds like, 22 incidentally. 23 All right. I didn't look too closely 24 at your charges. If y'all are all in agreement on the 25 charge, that's one thing; it will be easy. If y'all Cause No. 2009-40925, Wagner Vs. Four J's, et al 000532 Volume 1 12 1 haven't agreed on the charge, I'll need you to each 2 e-mail your latest version of the charge to Mr. Garibay 3 in Word format so that I can put the charge together as 4 quickly as possible. His e-mail is on the website, the 5 Justex website; so it should be pretty easy. Make sure 6 you cc the opposing counsel and whatnot. 7 I know we've got some motions to take 8 care of. Before we do that, have y'all discussed your 9 motions in limine, your exhibits, your deposition 10 objections to winnow down what's truly in dispute and 11 what y'all can agree on? 12 MR. THWEATT: Yes. 13 PRETRIAL MOTIONS 14 THE COURT: All right. The first one 15 we're going to take up is Plaintiff and Intervenor's 16 Joint Motion to Strike Defendant's Combined Third 17 Amended Answer and Defendant's First Amended Answer, 18 Plea in Intervention. 19 And I gather that what I was handed 20 just before we started, entitled Defendant's Motion for 21 Leave to File Third Amended Answer and First Amended 22 Answer to Plea in Intervention, is also on the table. 23 Do I understand that correctly? 24 MR. PLUMMER: Correct, Judge. 25 THE COURT: All right. Let's start Cause No. 2009-40925, Wagner Vs. Four J's, et al 000533 Volume 1 13 1 with the Motion to Strike. 2 Mr. Thweatt, do you want to present 3 this or, Mr. Sparks, are you going to present this? 4 MR. THWEATT: I'll be happy to present 5 it, Your Honor. 6 As the Court has seen from our motion 7 submitted, we object to the untimely filing of the 8 defendant's amended answers submitted on October the 9 5th, 2011. The Court's pleadings deadline in this case 10 expired on December the 3rd, 2010; and the discovery 11 cutoff expired back in February of 2011. 12 Under Rule 63, there has to be -- well, 13 Rule 63 very plainly permits late amendments, provided 14 leave is sought. I would note that there was no leave 15 sought until this morning, I believe. 16 And I believe in our motion we've 17 stated the surprise that these late amendments present 18 to us. 19 Essentially, Judge, we're having a 20 dispute about whether this is a Chapter 74 medical 21 malpractice case or not. We don't believe that the 22 facts of this case to this point in any of the pleadings 23 or the depositions that have been exchanged indicate 24 that it is a medical malpractice case. 25 It's a case about fire. It does not Cause No. 2009-40925, Wagner Vs. Four J's, et al 000534 Volume 1 14 1 involve the delivery of medicine. There's no doctor or 2 nurse or the administration of any kind of healthcare at 3 issue in this case. 4 We were surprised to see that 5 Chapter 74 was being invoked. Mr. Plummer has noted in 6 his response that I did file on behalf of plaintiff 7 expert reports that were submitted, basically to guard 8 against the possibility that this Court might consider 9 it as a Chapter 74 claim. 10 Just the fact that this case involves a 11 Chapter 74 healthcare provider does not, by necessity, 12 mean that it's a Chapter 74 claim. And the remedy for 13 not filing expert reports in a case that can be 14 considered a healthcare liability claim -- we don't 15 believe that it is; but if the Court later determined 16 that it was, would be dismissal with prejudice. 17 So we have a catch 22 decision to make 18 there. We made it. Nonetheless, just because we have 19 made it -- we certainly did not submit expert reports 20 that were filed by any physician, any nurse, nothing 21 like that. What we submitted were expert reports from a 22 gentleman who works at the Center for Mental Retardation 23 here in Houston and the fire -- the former fire chief 24 here in town. 25 We just don't believe that these Cause No. 2009-40925, Wagner Vs. Four J's, et al 000535 Volume 1 15 1 defenses should be applicable. They're way late on 2 this, nobody's conducted discovery on this, and the 3 reason for that is because the discovery deadline and 4 all the deadlines that you enforced in your Motion for 5 Summary Judgment -- or their Motion for Summary 6 Judgment, which you denied, is untimely. 7 I well remember the first time I was 8 before you, Your Honor, in this case. You emphasized to 9 me the importance of deadlines in this case; and we've 10 tried to comply with those since then, especially so. 11 Beyond that, everything is stated in 12 our motion; and we don't think that these answers ought 13 to be -- or these defenses should be before this Court. 14 THE COURT: How does asserting the 15 damage caps in Chapter 74, which is basically, I 16 think -- isn't that the effect that allowing the answers 17 to have -- that it's the only consequence of allowing 18 the answers, is it raises this prospect of the damage 19 caps? Is there anything else that Chapter 74 would do 20 to change this case? 21 MR. THWEATT: That's certainly one of 22 them. 23 I'm not exactly clear from their 24 answer. They say that the plaintiff and intervenor 25 failed to comply with the other provisions of Cause No. 2009-40925, Wagner Vs. Four J's, et al 000536 Volume 1 16 1 Chapter 74. I'm not exactly sure what they mean by 2 that. They haven't defined exactly what they mean in 3 their answer or -- and, for that reason, I don't know 4 what the other consequences could be. 5 I do know that there is a section -- 6 and we've cited this in our motion -- that a Chapter 74 7 case requires a physician to testify on causation. 8 There's a section in the code of that. 9 We did not designate a physician 10 because we don't believe that this is a Chapter 74 11 healthcare liability claim; and the only way we could 12 overcome that prejudice now, Judge, is to ask for more 13 time. We're not going to do that. I don't expect the 14 Court would grant that anyway at this late point. 15 That's certainly one way that we could be prejudiced and 16 they would be prejudiced, potentially, if the Court 17 determines, or a later Court determines on appeal, 18 determines that expert testimony's required to establish 19 causation in this case. 20 Maybe it won't be, and maybe it will 21 be. But that's an open question that could have 22 potential implications after this trial concludes; so it 23 is a big issue for us. It's something that, on the 24 current state of the evidence in the pleadings, could 25 not have been anticipated; and that's certainly one of Cause No. 2009-40925, Wagner Vs. Four J's, et al 000537 Volume 1 17 1 the reasons why we objected to it. 2 And I think I've highlighted that as a 3 potential reason in the draft order -- 4 THE COURT: Okay. Well, I'm trying to 5 get down to the brass tacks of what the consequences of 6 allowing an amendment to assert Chapter 74 would be 7 since, obviously, they've long since waived any right to 8 move to dismiss for an inadequate expert report. 9 So I mean, you know, you've argued that 10 it reshapes the litigation. You've told me that it may 11 require you to present a -- a specific kind of expert on 12 causation, and there's the damage caps. 13 Is there anything else of consequence 14 to the effect of Chapter 74 on this case if they're 15 allowed to keep this amendment? 16 MR. THWEATT: Yes, there is. 17 We have two defendants in this case. 18 Ms. Anthonia Uduma is being sued in her capacity as a 19 property owner; and she owns -- she was the 100 percent 20 owner of the property that burned and we also have her 21 company that she owns 100 percent, Four J's Community 22 Living Center, Inc. 23 Let's assume for the sake of argument, 24 Your Honor, that the jury comes back and they say it's 25 50/50 or they say it's more of a liability case against Cause No. 2009-40925, Wagner Vs. Four J's, et al 000538 Volume 1 18 1 Four J's than it is against Ms. Uduma. 2 In that case, in addition to the caps, 3 we're going to have to reshape the way we're going to 4 present our evidence to make sure that more liability is 5 placed on Ms. Uduma so that she is jointly and severally 6 liable for any verdict that this jury renders. 7 And that's -- that's a different animal 8 than coming in here and just trying a premises case, 9 just trying a Chapter 74 case against the defendant, 10 Four J's Community Living Center, Incorporated. 11 And we'll do our best to do that, 12 Judge; but, I mean, they submitted this October the 5th. 13 And, you know, 12 days before trial it is not -- we 14 couldn't have conducted any discovery, as it was. But 15 that -- Mr. Sparks and I have discussed it is going to 16 require a reshifting of emphasis during the evidentiary 17 portion of this trial to establish the liability, not 18 just damages, to make sure that most of the liability is 19 established on Ms. Uduma so that she's jointly and 20 severally liable because, if not, it may be a pure 21 victory. 22 We might have -- let's say the jury 23 comes back and says 90 percent on Four J's. Well, then 24 we're left with a damage award that's capped and another 25 defendant who's only ten percent on the hook for -- if Cause No. 2009-40925, Wagner Vs. Four J's, et al 000539 Volume 1 19 1 at all because of joint and several liability. 2 So that's a pretty significant 3 strategic shift, in our view. It does have consequences 4 for both the plaintiff and the intervenor. I'm hoping 5 I've made that argument on behalf of both of us. 6 If there's anything else that needs to 7 be added... 8 MR. SPARKS: Yes. 9 THE COURT: Anything to add? 10 MR. SPARKS: No, sir. 11 THE COURT: All right. Mr. Plummer, 12 your response? 13 MR. PLUMMER: Judge, first of all, you 14 know, I don't dispute the late filing. I mean, I -- we 15 acknowledge that. 16 When we took over, we looked at the 17 file. And years ago what we -- they said, I would have 18 agreed with, that this is not a Chapter 74 case. But it 19 is now -- under the current Court's interpretation of 20 Chapter 74, this is clearly a Chapter 74 case. 21 I gave the Court -- and I'll give the 22 Court another copy. I've given counsel a copy of a 23 July, 2011, opinion by the Texas Supreme Court involving 24 a nursing home that was sued because of a spider bite. 25 And the Court determined -- and Cause No. 2009-40925, Wagner Vs. Four J's, et al 000540 Volume 1 20 1 particularly the language in defining a health liability 2 claim -- that not just medical negligence applies, but 3 safety issues in the statute apply. Okay? And that 4 included that nursing home that does similar work as us. 5 Now, Mr. Thweatt has also commented -- 6 and I want to direct this quickly -- about the dismissal 7 with prejudice result. 8 The Court's correct that they have 9 timely filed expert reports. There's no requirement, as 10 I understand it, for any doctors' opinions or any 11 healthcare providers' opinions. The special issues that 12 they've crafted are appropriate, as far as I can tell on 13 these facts in this case. Okay? So there would not be 14 that result. 15 There is -- the only result I -- of 16 Chapter 74 would be the damage cap, number one, and 17 number two, there's the -- the -- we've raised 18 limitations against the intervenor and there's a -- 19 there's a portion of the limitations statute in the 20 Medical Liability Act that would apply, but we don't 21 think we need that on the facts of this case. I think 22 we're entitled to limitations -- to assert our 23 limitations to the defense and succeed on that, 24 regardless of which one applies. 25 But it is clearly a Chapter 74 case, Cause No. 2009-40925, Wagner Vs. Four J's, et al 000541 Volume 1 21 1 Judge. 2 And I want to give the Court two other 3 cases; Marks versus St. Luke's Hospital, which is 2008, 4 and Diversicare, which is 2005. I've highlighted all 5 these; and I think counsel has highlighted copies, also. 6 One's a nursing home; one's a bad bed 7 in a hospital. But they're all premises cases, just 8 like this. 9 THE COURT: And what is your argument 10 that Four J's falls within the statutory definition of a 11 healthcare provider? 12 MR. PLUMMER: Just like -- first of 13 all, they're governed by the Health and Safety Code and 14 the Texas Administrative Code, Section 40 -- I mean, 15 Title 40, Section 9.151. That's number one. And it 16 sets out the criteria for their -- the governance of 17 that operation of a group home. That's number one. 18 Number two, they do the same sort of 19 thing as a nursing home. There are people there who 20 don't necessarily have health problems but are attended 21 to healthwise, we deliver medications, we -- our -- our 22 customers and our clients are daily medicated, when 23 appropriate and as instructed by a physician. They get 24 psychotherapy. They get physical therapy. They get 25 vocational training. They get the same sorts of things Cause No. 2009-40925, Wagner Vs. Four J's, et al 000542 Volume 1 22 1 as people in a nursing home would, the difference being 2 that our clientele are mentally retarded and have 3 developmental disabilities, physical disabilities, and 4 in a nursing home folks are -- tend to be older and on 5 the decline. Okay? But other than that, it's the exact 6 same circumstance as a nursing home. 7 And the -- and the Court's opinion in 8 the initial case I've given the Court is directly on 9 point. 10 And then on the surprise issue, I 11 believe the way the expert reports were prepared -- and 12 we've attached the first two pages of those experts' 13 report. Each one says I have been informed by 14 Mr. Thweatt that this is the Chapter 74 claim and, 15 therefore, I'm doing my expert report consistent with 16 the requirements of Chapter 74. So there's no surprise, 17 none whatsoever. The proof is the same, that they have 18 to make in this case, as they would in a Chapter 74 19 case. And the issues, the jury issues, the issues that 20 go to the jury are exactly the same. 21 So I -- I am not sure -- perhaps had we 22 gone to trial without raising this, I would have waived 23 my entitlement to invoke Chapter 74; but the legislature 24 has been clear and the Supreme Court has been clear that 25 it applies in this context. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000543 Volume 1 23 1 Some people might call it expansive, 2 but it doesn't matter because that's what the Court 3 says. And we would ask the Court leave to file our 4 amended answers and assert the appropriate Chapter 74 5 against principally the damage cap. 6 THE COURT: Do you have a license, 7 certification, registration, or charter from the State 8 of Texas? 9 MR. PLUMMER: Yes, Your Honor. 10 THE COURT: Where is that? Is that 11 attached to your Motion for Leave? 12 MR. PLUMMER: It is not attached to my 13 Motion for Leave. What do we have -- in may be one of 14 our exhibits. 15 Our operation is approved by DADS. And 16 what's DADS again? The Department of Aging and 17 Disabilities. 18 We're also governed by -- we're a part 19 of the Home and Community-Based Services Program out of 20 the Department of Health. 21 THE COURT: I asked do you have a 22 license, certification, registration, or charter by the 23 State of Texas. 24 MR. PLUMMER: We have a charter as a 25 corporation, Judge. We have a license to operate our Cause No. 2009-40925, Wagner Vs. Four J's, et al 000544 Volume 1 24 1 group home. 2 I did not attach one to the -- to 3 the -- to the response, but I believe we may have 4 something that shares that with the Court. 5 Judge, let me give you what we have as 6 Exhibit 1 and Exhibit 3. These aren't the 7 certifications that license us to operate; but they are 8 certifications that identify our capacity, particularly 9 Exhibit 3 -- excuse me -- I think particularly 10 Exhibit 1. But we can certainly get that for the Court 11 this morning; and we certainly have testimony of that to 12 bring, Your Honor. 13 I also have, Judge, a copy of Chapter 9 14 of the -- of the Texas Administrative Code that also 15 governs us. 16 THE COURT: Mr. Thweatt, if bites from 17 bugs in one's bed are considered healthcare liability 18 claims, why isn't this -- why doesn't [sic] the facts 19 alleged in this case come under the Supreme Court's 20 understanding of the healthcare liability claim? 21 Mr. Thweatt: Because of this language 22 here, Your Honor, which the Supreme Court has -- has not 23 rejected. 24 I've cited this in our motion, the case 25 of Valley Baptist Medical Center versus Stradley, a case Cause No. 2009-40925, Wagner Vs. Four J's, et al 000545 Volume 1 25 1 out of the Corpus Christi Court of Appeals, similar 2 cases also out of the Austin Court of Appeals and the 3 Houston First Court of Appeals. 4 It says as follows: (Reading) We hold 5 that a safety claim can be categorized as a healthcare 6 liability claim only when it is against a healthcare 7 provider or physician or a claimed departure from 8 accepted standards of safety directly related to 9 healthcare. Holding otherwise and finding all safety 10 claims against healthcare providers or physicians to be 11 healthcare liability claims, regardless of whether they 12 directly relate to healthcare, would be an arbitrary and 13 legislatively unauthorized expansion of the healthcare 14 liability statute. 15 I think the other distinguishing 16 factor, Your Honor, in those cases that Mr. Plummer has 17 handed to you, there were not two defendants. There was 18 not a separate premises owner. In this case there is. 19 We have the owner of the company, 20 Ms. Anthonia Uduma, who owned this facility, personally 21 and 100 percent herself, and then we have this company. 22 And that's a very important factor that's different in 23 these cases that Mr. Plummer has cited. 24 THE COURT: Mr. Plummer? 25 MR. PLUMMER: Judge, with regard to Cause No. 2009-40925, Wagner Vs. Four J's, et al 000546 Volume 1 26 1 Ms. Uduma, I think he's correct. Chapter 74 wouldn't 2 apply. She's just a premises owner. She owns the 3 building. 4 With regard to the case cited by 5 counsel, the three cases that we've given the Court 6 prevail over that case. That was a court of appeals 7 opinion. 8 The spider bite case was clearly a 9 premises type case. 10 THE COURT: No. The Supreme Court held 11 it's a healthcare liability case. 12 MR. PLUMMER: I understand, but the 13 issue was maintaining the safety of the premises. 14 One of the allegations they said is you 15 didn't keep the premise free from insects, you didn't 16 use pesticides on a regular basis to protect against 17 that. That was the kind of issue that they raised. 18 And the Court said, sorry, safety, that 19 portion of the definition of a health liability claim 20 involving safety, an undefined term in the statute, is 21 broad. 22 And where you have a claim against a 23 facility that provides healthcare, in its context it 24 includes the broader premises issues related to safety. 25 And then the Diversicare case also says Cause No. 2009-40925, Wagner Vs. Four J's, et al 000547 Volume 1 27 1 the same thing, and that was decided by the Court in 2 2005. 3 And then, of course, the other one that 4 I mentioned and cited similarly involved claims that 5 traditionally we would not consider health liability 6 claims but the Court has read the statute broadly to 7 encompass them. It doesn't encompass Ms. Uduma. It 8 does encompass Four J's Community Center. 9 THE COURT: All right. Y'all give me 10 five minutes. I'll be right back. 11 (Break taken from 9:04 a.m. to 12 9:10 a.m.) 13 THE COURT: Mr. Thweatt, Mr. Sparks, do 14 y'all want a continuance? 15 MR. PLUMMER: No. 16 MR. THWEATT: No, Your Honor. 17 THE COURT: Mr. Sparks? 18 MR. SPARKS: No. 19 THE COURT: Okay. All right. Motion 20 to Strike is denied. The Motion for Leave is granted. 21 I'll ask you again: Do you want a continuance? 22 MR. THWEATT: No, Your Honor. 23 MR. SPARKS: No. 24 THE COURT: And I just wanted to make 25 sure -- I wasn't trying to game y'all or anything. I Cause No. 2009-40925, Wagner Vs. Four J's, et al 000548 Volume 1 28 1 believed you the first time, but I didn't want you to 2 think that how I was going to rule is going to depend on 3 whether he said you wanted a continuance or not. And 4 that's why I was asking again, just to make sure. 5 MR. SPARKS: Judge, could I be 6 correct -- you said the Motion to Strike was -- 7 THE COURT: Denied. 8 MR. SPARKS: -- denied? 9 THE COURT: Motion for Leave to amend 10 is granted. 11 MR. SPARKS: Then we do want a 12 continuance, Judge. 13 THE COURT: How much time do you need? 14 MR. SPARKS: 40 days. 15 THE COURT: 40 days? I don't know if 16 I've got trial time. 17 In light of the -- Mr. Sparks' request 18 for a continuance, which I am going to grant, 19 Mr. Thweatt do you have anything to say on how much time 20 you need for a continuance? 21 MR. THWEATT: Judge, may I confer with 22 Mr. Sparks? 23 THE COURT: Yes. 24 (Off the record conference.) 25 MR. THWEATT: Your Honor, one question Cause No. 2009-40925, Wagner Vs. Four J's, et al 000549 Volume 1 29 1 of clarification: Is your ruling applicable to both 2 defendants or just to Four J's Community Living Center 3 in light of Mr. Plummer's comments to the Court? 4 THE COURT: Mr. Plummer, are you -- 5 MR. PLUMMER: Judge, primarily to 6 Four J's. It doesn't apply to Ms. Uduma. 7 THE COURT: So you're not asserting 8 Chapter 74 as to Ms. Uduma? 9 MR. PLUMMER: Well, as the -- as the 10 owner of the property. 11 THE COURT: Well, what does that mean? 12 She's a defendant. Is -- are you going to claim any -- 13 any defenses, any rights, any applicability of 14 Chapter 74 to Ms. Uduma? 15 MR. PLUMMER: No, Your Honor. 16 THE COURT: All right. 17 MR. SPARKS: Then if that's the case, 18 we won't -- we won't need the continuance, Judge. 19 THE COURT: All right. Okay. So let's 20 move on. We've got to move quickly here. 21 First of all, I've got plaintiff's 22 Motion in Limine, defendant's Motion in Limine. I 23 didn't see an intervenor's Motion in Limine. 24 Did you have any Motions in Limine? 25 MR. SPARKS: No, we didn't, Judge. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000550 Volume 1 30 1 We'll adopt those from the plaintiff. 2 THE COURT: All right. Looking first 3 at the Motions in Limine of the plaintiff, which of 4 these do you contest, Mr. Plummer? 5 MR. PLUMMER: Mr. Raval will respond, 6 Your Honor. 7 THE COURT: Which do you contest? 8 MR. RAVAL: Your Honor, 23 and 24. 9 THE COURT: All right. So plaintiff's 10 Motions 1 through 22 are granted as agreed. 11 23, Mr. Thweatt? This is your motion, 12 isn't it? 13 MR. THWEATT: It is, Your Honor. I 14 think the facts in this case may show -- well, they will 15 show, if the Court permits it, that Ms. Wagner entered 16 into a foster care agreement with Four J's Community 17 Living Center after this fire; and we don't believe 18 that's relevant. 19 We also believe that such agreements 20 will improperly introduce collateral source into this 21 case. There's a number of issues related to Social 22 Security, Medicaid, those types of things, that could 23 flow from that; and that's the basis of our motion in 24 that regard. 25 THE COURT: How would the collateral Cause No. 2009-40925, Wagner Vs. Four J's, et al 000551 Volume 1 31 1 source evidence come into play if that agreement comes 2 into evidence? 3 MR. THWEATT: Well, there's been 4 description from Ms. Wagner in her testimony that 5 she received Social Security benefits. She's a 6 Medicaid -- her daughter's a Medicaid recipient. That's 7 what we're worried about here. 8 She's now the guardian, just at 9 Four J's used to be -- I'm sorry -- just as -- the 10 caretaker just as Four J's used to be. We don't want 11 the jury knowing about collateral source because of -- 12 THE COURT: But my question is: How 13 does the October 2nd, 2008, agreement raise collateral 14 source? I don't understand the connection to the 15 collateral source. 16 MR. THWEATT: Because it's referenced 17 within the agreement. 18 THE COURT: Okay. So the payments from 19 the Social Security. 20 MR. THWEATT: Yes. 21 THE COURT: I see. All right. 22 Response? 23 MR. RAVAL: Your Honor, I think we can 24 redact anything, as necessary, in the agreement. Second 25 of all, the main reason we're objecting to this -- for Cause No. 2009-40925, Wagner Vs. Four J's, et al 000552 Volume 1 32 1 one thing, we plan to discuss the agreement and 2 Ms. Wagner's care after the fire. It goes directly to 3 the issue of damages and mental anguish. 4 Second of all, we do plan on -- if not 5 the agreement itself, a portion of the agreement, it 6 talks about the rights of the patient and the rights of 7 the individual. That's something that predates the 8 fire. But specifically regarding this agreement, it 9 is -- we believe we can redact any issue about payment 10 and that it is relevant to her continuing care. 11 THE COURT: How is it relevant? What 12 material issue or fact is made more likely or less 13 likely by the admission of this agreement into evidence? 14 MR. RAVAL: The agreement is relevant 15 to show -- it goes to her damages. It goes to her 16 mental anguish damages, that -- and the testimony we 17 expect that is going to come forward about what her 18 behavior was like after the fire, what -- what her 19 sleeping patterns were, and other things. 20 The -- again, the agreement itself, 21 with payment redacted, we believe, is relevant to -- 22 THE COURT: How is the agreement itself 23 relevant? What does it matter that after the 24 agreement -- or after the fire there was an agreement 25 between Four J's and -- and Ms. Wagner? Cause No. 2009-40925, Wagner Vs. Four J's, et al 000553 Volume 1 33 1 MR. RAVAL: The fact that she was 2 willing to continue staying on with Four J's for a 3 period after the fire of about eight or nine months or 4 getting treatment and care from people connected to 5 Four J's is relevant to the damage issue. 6 THE COURT: How? I -- you're not -- 7 just telling me it's relevant isn't showing me it's 8 relevant. 9 How does that make any issue about 10 damages more likely or less likely? 11 MR. RAVAL: If -- if she were -- in 12 some way blamed Four J's for what happened, it is less 13 likely that she would have continued getting services 14 from employees or people connected to Four J's. She 15 continued to do so for a period after the fire of about 16 eight or nine months. 17 THE COURT: So the fact that she 18 continued to do business means that the plaintiff didn't 19 have any damages? 20 MR. RAVAL: No. It goes strictly to 21 the mental anguish damages, that if she blamed Four J's 22 for what happened in the fire, it's more likely that she 23 would have stopped employing them. She, in fact, 24 continued to employ them and use their services. That 25 is relevant to mental anguish. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000554 Volume 1 34 1 THE COURT: Mr. Thweatt, any response? 2 MR. THWEATT: Well, the testimony at 3 her deposition, Judge, was that she continued to use 4 them -- her services because, really, she didn't know 5 where else to turn, not because she was satisfied or 6 happy with the services that had been provided, 7 particularly up to the fire on September 4th, 2008. 8 So we certainly dispute that there's 9 any sort of ratification that -- of Four J's by our 10 client postfire, and we just feel like it's going to be 11 evidence that's not going to be contributing to any sort 12 of fact at issue. 13 What matters here is what happened on 14 September 4th, 2008, not what happened subsequent to 15 that. 16 THE COURT: All right. 23 is granted. 17 24, Mr. Thweatt? 18 MR. THWEATT: Your Honor, there was an 19 investigation into this fire by a State agency. I think 20 the outcome of that investigation was inconclusive, and 21 we don't believe that an agency's determination, even if 22 it were conclusive or -- or it found no negligence on 23 behalf of Four J's, is something that the jury should be 24 considering in this case. It's not relevant. Even if 25 it is somehow relevant, it's substantially more Cause No. 2009-40925, Wagner Vs. Four J's, et al 000555 Volume 1 35 1 prejudicial than probative. 2 A State agency is, in my mind, very 3 similar to a law enforcement agency investigating a car 4 accident. The Courts routinely exclude those unless 5 there's some sort of proper foundation laid for those, 6 and it's just -- it's just not something we think the 7 jury ought to be concerning themselves with in this 8 case. 9 THE COURT: So your -- the grounds of 10 your objection are what, relevance? 11 MR. THWEATT: Relevance, inadmissible 12 hearsay, and 403. That's what I cited. 13 THE COURT: Response? 14 MR. RAVAL: Intervenor is attempting in 15 their exhibits to admit parts of this [sic] statements 16 from some of the witnesses that were interviewed by the 17 State agency that conducted this investigation. 18 So some of these apparent hearsay 19 statements are being attempted to be admitted as 20 evidence. 21 Second of all, the report itself, we 22 agree, is not determinative of any issue with regard to 23 negligence but it's instructive to the jury. The fact 24 that the results were inconclusive shows that there's 25 not some kind of adverse finding against Four J's. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000556 Volume 1 36 1 The jury's entitled to understand that 2 there was an investigation done, people were 3 interviewed, what they said, what they told the -- what 4 the agency was told by these employees and other 5 witnesses, and what the end result was. 6 THE COURT: Why does it matter to the 7 jury -- since the end result was it was inconclusive, 8 why does it matter to the jury? How does it help the 9 jury? 10 MR. RAVAL: Otherwise, the jury may 11 make the inference that there was some kind of adverse 12 result. 13 THE COURT: Well, are you asking to 14 exclude the investigation or just the report? 15 MR. THWEATT: The report, the 16 investigation's conclusions, all of it. We don't want 17 any of it. 18 THE COURT: No evidence that there was 19 an investigation? 20 MR. THWEATT: That's correct, not by 21 the Texas Department of Aging and Disability Services. 22 MR. RAVAL: In addition, Your Honor, we 23 believe that their experts relied on this agency report 24 in making some of their conclusions. 25 MR. THWEATT: My experts haven't Cause No. 2009-40925, Wagner Vs. Four J's, et al 000557 Volume 1 37 1 testified. They haven't been deposed in this case, and 2 we're not sure what -- what they're going to say about 3 that at all. And we'll certainly abide by the Court's 4 ruling. 5 THE COURT: 24 is granted if -- and 6 this is just an order in limine. So if for some reason 7 you feel like a door has been opened or you need to get 8 into it, you can ask to approach the bench and we'll 9 take it up again. 10 MR. RAVAL: Yes, Your Honor. 11 THE COURT: All right. Turning to 12 defendant's Motions in Limine, which are in dispute? 13 MR. THWEATT: Your Honor, we've agreed 14 to defendant's Motion in Limine 2 and 3. I believe 15 there are five of them. 16 THE COURT: Well, I've got -- the 17 Motions in Limine from defendants I've got were filed 18 March 11th. Are these your latest and greatest? 19 MR. RAVAL: Your Honor, we filed an 20 amended Motion in Limine sometime last week. 21 THE COURT: And do you have a copy for 22 me? 23 MR. RAVAL: I do, Your Honor. 24 THE COURT: Okay. So you agree to 2 25 and 3? Cause No. 2009-40925, Wagner Vs. Four J's, et al 000558 Volume 1 38 1 MR. THWEATT: We do, Your Honor. 2 THE COURT: Mr. Sparks, is that 3 consistent with your view? 4 MR. SPARKS: Just a second, Your Honor. 5 Yes, sir. 6 THE COURT: Okay. So 2 and 3 are 7 granted as agreed. Start with Number 1. 8 MR. RAVAL: Your Honor, regarding 9 Number 1, it's our understanding that Ms. Wagner used a 10 wheelchair accessible van before the fire because of her 11 existing disabilities. If there's a request for damages 12 pertaining to or retrofitting a wheelchair accessible 13 van out of some kind of claim about injuries related to 14 the fire, it's our contention that was a preexisting 15 condition and that is not evidence of damages related to 16 this fire. 17 THE COURT: There's a dispositive 18 motion. That's denied. 19 4? 20 MR. RAVAL: Your Honor, one of the 21 witnesses that we've -- will appear will -- by 22 deposition is Dr. Karen Gollaher. She conducted a site 23 evaluation of Esperanza Arzola, the person who started 24 the fire in this case, one of the clients at the home. 25 Any conclusions or competency Cause No. 2009-40925, Wagner Vs. Four J's, et al 000559 Volume 1 39 1 evaluations by Dr. Gollaher strictly pertain to the 2 criminal trial and Ms. Arzola not being competent to 3 stand trial. That's not relevant to what happened -- 4 what goes on in this trial, and also we say it's overly 5 prejudicial under Rule 403. 6 THE COURT: How is it unfairly 7 prejudicial? 8 MR. RAVAL: A determine -- 9 determination that Ms. Arzola was unfit to stand trial 10 in a criminal trial has nothing to do with whether or 11 not she's a responsible third party in this case. It's 12 a different standard of proof. 13 THE COURT: So, she was declared 14 incompetent to stand trial? She wasn't -- she wasn't 15 diagnosed as criminally insane or anything like that? 16 Is that what you're saying? 17 MR. RAVAL: That's my understanding, 18 Your Honor. 19 THE COURT: Okay. 20 MR. RAVAL: And to this day, she has 21 not stood trial. 22 THE COURT: Response? 23 MR. THWEATT: Your Honor, she can't be 24 determined, according to Dr. Gollaher's testimony, as 25 criminally insane until there is a determination that Cause No. 2009-40925, Wagner Vs. Four J's, et al 000560 Volume 1 40 1 she's competent to stand trial. And Dr. Gollaher was 2 appointed by the criminal district court in Fort Bend 3 County to determine whether or not she was capable 4 mentally of understanding the charges against her, of 5 assisting with her defense, and Dr. Gollaher determined 6 that she was not. 7 From that point, she was sent to a 8 psychiatric institution, where she remains today, and 9 will be there forever until qualified personnel 10 determine that she's competent to stand trial. 11 So I just wanted to provide some 12 background on that for the Court. 13 They are -- they have designated 14 Esperanza Arzola as a responsible third party; and I 15 believe the evidence in this case, at least in the 16 depositions thus far, indicates that they believe she is 17 solely responsible for the fire. 18 Because of their position, we think 19 it's very important that the jury know -- I mean, I -- 20 if -- were I them, I'd be waving around the indictment 21 and the criminal charges throughout this trial. 22 If they're going to do that, I think we 23 need to be permitted to respond to that and to rebut it 24 with a showing that, look, that was a charge based upon 25 law enforcement, not upon any psychiatric or Cause No. 2009-40925, Wagner Vs. Four J's, et al 000561 Volume 1 41 1 psychological evaluation of this woman. 2 There's a lot that they knew about 3 Ms. Arzola before the fire, and we'll address that. 4 This issue is important to us, to show that, look, 5 they're trying to blame somebody who's been determined 6 incompetent to stand trial for something that they had a 7 duty to prevent and care for. And that's our position. 8 MR. RAVAL: May I respond, Your Honor? 9 THE COURT: Just a moment. I'm trying 10 to get my arms wrapped around this. 11 She's been declared incompetent to 12 stand trial. This declaration occurred sometime after 13 the fire. 14 MR. THWEATT: Correct. 15 THE COURT: You're saying that's not 16 relevant; is that right? 17 MR. RAVAL: That's correct, Your Honor. 18 THE COURT: Okay. Mr. Thweatt, how is 19 her postfire competency relevant to any of the claims or 20 defenses in this case? 21 MR. THWEATT: Because the psychologist 22 who made that determination, as part of the 23 decision-making process, reviewed her entire 24 psychological profile, much of which -- well, all of 25 which occurred before the fire. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000562 Volume 1 42 1 And then she also conducted an 2 interview in the prison. That's what occurred after the 3 fire. But the vast majority of it that she took into 4 consideration and referenced in her report was prefire 5 conduct, prefire behavior that Esperanza Arzola 6 described. 7 And most of that -- much of that came 8 from Four J's, Judge. She went and got it from 9 Ms. Arzola's defense -- criminal defense attorney who 10 had Four J's as a reference. So she considered that 11 when she made her determination; and we think because of 12 that, her determination is highly probative on the issue 13 of whether or not Ms. Arzola should be blamed or -- 14 responsible for this fire. 15 THE COURT: And do I understand your 16 argument is that really comes up because they're going 17 to -- you believe that Defense is going to try and 18 convince the jury that she is 100 percent to blame for 19 this or that, because there was a criminal act, they're 20 somehow absolved of liability for any of their 21 responsibility? I'm trying to understand. 22 MR. THWEATT: Well, I think the 23 pleadings -- the pleadings that they have filed, Judge, 24 say that the criminal act absolves them from punitive 25 damage responsibility. They've certainly have pled Cause No. 2009-40925, Wagner Vs. Four J's, et al 000563 Volume 1 43 1 that. 2 But in terms of the ultimate liability 3 question, Ms. Uduma has testified that she does not 4 believe that she personally is responsible for the fire 5 or that her company is -- is responsible for the fire. 6 And her testimony indicates unequivocally that Esperanza 7 Arzola is the reason why these injuries resulted. 8 THE COURT: I'm going to deny Number 4. 9 Your reply? 10 MR. RAVAL: Your Honor, related to that 11 issue, we believe it's irrelevant, where Ms. Arzola is 12 currently located. The fact that she is currently not 13 competent to stand trial or that she is awaiting the 14 ability to stand criminal trial or where she is is not 15 relevant to anything in this trial. 16 THE COURT: Response, Mr. Thweatt? 17 MR. THWEATT: I think the sole 18 evidentiary issue there, Your Honor, is that she is 19 still -- there was some suggestion by prior counsel for 20 the defendant that Ms. Arzola could be out on the 21 streets, the charges could have been dismissed. We 22 don't know exactly what happened to her. That was the 23 comment in a deposition, and that's just not true. 24 Ms. Arzola is presently 25 institutionalized; and the only evidentiary issue there Cause No. 2009-40925, Wagner Vs. Four J's, et al 000564 Volume 1 44 1 is that I don't want them suggesting to this jury that 2 she's never stood trial, she's never faced charges, 3 anything like that. It's a small point, but it depends 4 on how expansive that limiting motion is read by the 5 Court. That's my concern. 6 I don't want them suggesting that, you 7 know, there's never been a determination on whether she 8 did it or not and that kind of thing. That's my worry 9 there. 10 THE COURT: 5 will be granted. 11 Obviously, if for some reason we need to talk about her 12 current location, you can approach the bench, and we can 13 revisit that. 14 MR. THWEATT: Thank you, Your Honor. 15 THE COURT: By the way, Mr. Sparks, I 16 apologize. I didn't ask for your input on any of this. 17 Did you have anything to add on anything? 18 MR. SPARKS: I didn't, Judge. 19 THE COURT: I apologize. 20 MR. SPARKS: Except for the fact, 21 Judge, in the -- the issue regarding the competency and 22 the sanity. I think you may have raised what Mr. -- 23 Dr. Gollaher indicated under the Code of Criminal 24 Procedure is that in order for her to make a 25 determination of sanity, she'd first have to make the Cause No. 2009-40925, Wagner Vs. Four J's, et al 000565 Volume 1 45 1 determination that she was competent. 2 And if a determination of incompetency 3 is made, they can't even evaluate the issue of sanity. 4 So that situation was something she could not consider. 5 THE COURT: All right. Thank you. All 6 right. 7 Turning to exhibit lists... I've got 8 the exhibit list of plaintiff, Patti J. Wagner, as 9 guardian of Jenny Ann Wagner which was filed, looks 10 like, March 11th. 11 Is this your latest and greatest, 12 Mr. Thweatt? 13 MR. THWEATT: No, Your Honor. We have 14 an amended exhibit list. The only change, we've added 15 Exhibit 58. 16 THE COURT: Do you have a copy of your 17 latest and greatest for me? 18 MR. THWEATT: I do. 19 THE COURT: While he's doing that, I've 20 got the second amended exhibit list of intervenor, 21 Wylette Taylor, filed October 11th. 22 Mr. Sparks, is this your latest and 23 greatest? 24 MR. SPARKS: It is, Judge. 25 THE COURT: And then from Defense I've Cause No. 2009-40925, Wagner Vs. Four J's, et al 000566 Volume 1 46 1 got an October 13th first amended exhibit list. Is that 2 your latest and greatest? 3 MR. RAVAL: Your Honor, we have a 4 second amended; but the only difference is we withdrew 5 some exhibits. 6 THE COURT: Okay. Do you have a copy 7 of your second amended for me, or is it in your notebook 8 that you submitted? 9 MR. RAVAL: I believe it is. 10 THE COURT: Okay. That's fine. I got 11 it. I just want to make sure I'm up to speed. 12 All right. First things, we're going 13 to look at Plaintiff's exhibits. My practice is I admit 14 exhibits that are not objected to pretrial. If there's 15 an objection, usually we just do those exhibits the 16 old-fashioned way during the course of trial unless it's 17 truly one of those objections that I can rule on without 18 foundational testimony, like whether or not it was 19 responsive to a particular discovery request and, 20 therefore, should have been disclosed or whatnot. 21 So looking at the second amended 22 exhibit list of Plaintiff, can you tell me which ones 23 you do not object to? 24 MR. RAVAL: We agree to Exhibits 1 25 through 33, 35, 36, 37, 39 and 40, 43 through 48. Cause No. 2009-40925, Wagner Vs. Four J's, et al 000567 Volume 1 47 1 MR. THWEATT: By the way, I should have 2 said, we withdraw Plaintiff's Exhibit 48, Your Honor. 3 THE COURT: All right. Please 4 continue. 5 MR. RAVAL: 50, 51, 52, 53, and that's 6 all of them. We have objections to the remaining 7 exhibits. 8 THE COURT: Okay. Lois, will you let 9 the jury know we'll be about another ten minutes, 10 please. 11 Okay. So Plaintiffs agree to 1 through 12 33, 35 to 37, 39 to 40 -- I'm sorry. Defendants agree 13 to 1 to 33, 35 to 37, 39 to 40, 43 through 47, and 50 to 14 53? 15 MR. RAVAL: Correct, Your Honor. 16 THE COURT: All right. Then do you 17 want to offer those into evidence, Mr. Thweatt? 18 MR. THWEATT: I do. 19 THE COURT: Am I pronouncing that 20 correctly? 21 MR. THWEATT: It's Thweatt, Your Honor. 22 THE COURT: Excuse me. I'll get it 23 right by the end of trial. 24 MR. THWEATT: Thank you, Your Honor. 25 THE COURT: So 1 through 33, 35 to 37, Cause No. 2009-40925, Wagner Vs. Four J's, et al 000568 Volume 1 48 1 39 to 40, 43 to 47, and 50 to 53 are admitted. 2 (Plaintiff's Exhibits 1 through 33, 35 3 through 37, 39, 40, 43 through 47 and 50 through 53 are 4 offered and received in evidence.) 5 MR. RAVAL: Your Honor, we're also okay 6 with 58, the stipulation. 7 THE COURT: 58 is admitted. 8 (Plaintiff's Exhibit 58 is offered and 9 received in evidence.) 10 THE COURT: Okay. Next we'll look at 11 the Intervenor's. 12 MR. SPARKS: Judge, if I may, you asked 13 me about -- if the second was the latest and greatest. 14 Actually, I have a fourth that we need to disclose. I 15 want to give you that copy there. 16 THE COURT: Okay. Sure. Thank you. 17 All right. Looking at Intervenor's 18 fourth amended exhibit list, can you tell me which ones 19 you agree to? 20 MR. RAVAL: Your Honor, we're agreeing 21 to Exhibits 1, 2, 4 through 8, 10 through 12, and 15 22 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4068071. Public record. Not legal advice.