Harold Gaskill, III, MD and Harold Gaskill, M.D. P.A. v. VHS San Antonio Partners, LLC D/B/A Baptist Health System and D/B/A North Central Baptist Hospital, Baptist System, North Central Baptist Hospital, Graham Reeve, David Siegel, William Waechter, Jaydeep Shah ( 2014 )

ACCEPTED
04-14-00153-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/26/2014 4:47:45 PM
KEITH HOTTLE
CLERK
NO. 04-14-153-CV
FILED IN
In the Fourth Court of Appeals 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
San Antonio, Texas 12/26/2014 4:47:45 PM
KEITH E. HOTTLE
Clerk
Harold Gaskill, III, M.D. and Harold Gaskill, M.D., P.A.,
Appellants-Plaintiffs,
RECEIVED IN
4th COURT OF APPEALS
v. SAN ANTONIO, TEXAS
12/29/2014 8:40:00 AM
VHS San Antonio Partners, LLC d/b/a Baptist Health System andKEITHd/b/a North
E. HOTTLE
Clerk
Central Baptist Hospital, Baptist Health System, North Central Baptist
Hospital, Graham Reeve, David Siegel, William Waechter, and Jaydeep Shah,
Appellees-Defendants.
On Appeal From Cause No. 2013-CI-14959
In the 285th Judicial District Court of Bexar County, Texas
Honorable Janet P. Littlejohn, Presiding Judge
APPELLEES’ REPLY IN SUPPORT OF FIRST MOTION FOR
EXTENSION OF TIME TO FILE MOTION FOR REHEARING
Notwithstanding the de minimis impact a 14-day extension of time for
Appellees to file their motion for rehearing would have on the ultimate
adjudication of this litigation and notwithstanding Gaskill’s failure to identify any
prejudice to themselves from a 14-day extension, Gaskill offers a litany of
arguments why this Court should deny Appellees’ First Motion for Extension of
Time to File Motion for Rehearing. Gaskill’s arguments should be rejected.
Gaskill first argues that “[t]he Appellees are represented by a large firm with
offices all over the state and worldwide for that matter.” Resp. at 1-2. If that were
a valid argument, then large law firms, as a matter of law, would never be entitled
to request extensions to file a motion for rehearing or any other kind of extension
in any matter in our court system. Gaskill fails to cite any authority recognizing
one set of rules for large law firms and another set for smaller law firms.
Moreover, the fact that more than one attorney is working on this matter for
Appellees ignores the reality that different attorney(s) take the laboring oar on
different parts of a case based on experience and specialized expertise.
Gaskill next argues that “[l]ast year when it sought to expedite the hearing at
the trial, the Appellees/Defendants assembled voluminous pleadings, tried to set
hearings and performed an entire array of work between December 31, 2013 and
January 2, 2014” and “the holidays and other alleged matters did not pose an
impediment then.” Id. at 2. Appellees, however, were faced with the possibility
that Gaskill could argue that Appellees’ motion to dismiss was required to be ruled
on by January 3, 2014 under Texas Rule of Civil Procedure 91a. Thus, Appellees
were compelled to take all necessary measures during that time period to ensure
action could be taken on Appellees’ motion to dismiss by January 3, 2014. No
such potential deadline exists for Appellees’ motion for rehearing.
Gaskill next incorrectly argues that “Appellee had two weeks when this
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Court ruled and apparently made no effort to prepare its motion for
reconsideration.” Id. Appellees, however, filed their motion for extension of time
to file their motion for rehearing on December 23, 2014 – just six days after this
Court issued its decision in this case on December 17, 2014.
Gaskill next argues that Appellees’ motion for extension of time to file their
motion for rehearing is somehow reflective of an alleged pattern of delay in this
litigation. Id. at 2-3. Gaskill, however, does not argue, much less cite any
evidence, that Appellees violated any deadlines for filing their motion to dismiss or
for obtaining a ruling on their motion to dismiss or violated any discovery
deadlines below. Id. Appellees’ one prior motion for extension of time in this
appeal was to file their response brief on the merits. That motion for extension
was not opposed by Gaskill and was granted by this Court.
Gaskill next wonders why a motion for extension is necessary when “[t]his
case has been thoroughly briefed and argued” and it is unclear “what remains to be
‘reconsidered.’” Id. That is an argument addressed to the merits of Appellees’
forthcoming motion for rehearing, not the merits of Appellees’ motion for
extension of time to file the motion for rehearing. Appellees intend to address a
particular rationale for this Court’s decision in their motion for rehearing.
Appellees also intend to raise an additional issue regarding this Court’s decision to
remand the case to the trial court that was not previously addressed in Appellees’
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briefs on the merits because the issue, of course, was not raised until this Court
actually ruled that the case be remanded. Therefore, Appellees’ motion for
rehearing cannot simply be cut-and-pasted from its prior briefing.
Finally, Appellees incorrectly note that “[u]nder Tex. R. App. P. 49.7 this
court can deny the right to even file a motion for rehearing, or at a minimum
shortened [sic] the time for doing so.” Id. at 3. Rule 49.7 says no such thing.
While this Court can deny a motion for rehearing, Gaskill does not cite any
authority holding that this Court can preclude Appellees from even filing the
motion for rehearing in the first place. There certainly is no dispute that Rule 49.8
expressly authorizes parties like Appellees to file a motion for extension of time to
file a motion for rehearing, which is the motion currently before this Court.
CONCLUSION
For the reasons set forth above, Appellees respectfully request that this
Court grant Appellees’ First Motion for Extension of Time to File Motion for
Rehearing and grant a 14-day extension of time for Appellees to file said motion
from January 2, 2015 until January 16, 2015. Appellees further respectfully
request that this Court grant Appellees all other relief to which they are entitled.
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Respectfully submitted,
FULBRIGHT & JAWORSKI LLP
By: /s/ Warren S. Huang
Warren S. Huang
State Bar No. 00796788
warren.huang@nortonrosefulbright.com
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
FULBRIGHT & JAWORSKI LLP
Yvonne K. Puig
State Bar No. 16385400
yvonne.puig@nortonrosefulbright.com
Eric Hoffman
State Bar No. 24074427
eric.hoffman@nortonrosefulbright.com
98 San Jacinto Boulevard, Suite 1100
Austin, Texas 78701-4255
Telephone: (512) 474-5201
Facsimile: (512) 536-4598
Counsel for Appellees
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
counsel – in reliance upon the word count of the computer program used to prepare
this document – certifies that this motion contains 799 words, excluding the words
that need not be counted under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Warren S. Huang
Warren S. Huang
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a copy of Appellees’ Reply in
Support of First Motion for Extension of Time to File Motion for Rehearing was
served by electronic filing and electronic mail in compliance with Texas Rule of
Appellate Procedure 9.5 on December 26, 2014, upon the following:
Mr. Mark A. Weitz
WEITZ MORGAN PLLC
100 Congress Avenue, Suite 2000
Austin, Texas 78701
(Counsel for Appellants)
mweitz@weitzmorgan.com
/s/ Warren S. Huang
Warren S. Huang
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