HBA Appellate Practice Section

August 20, 2009


July 16, 2009 – August 20, 2009

Presented by:

Amy Hefley

Baker Botts L.L.P.



Larsen v. Santa Fe Independent School District, No. 14-07-01038-CV (July 28, 2009) (Justice Boyce).

Significance: Exhausting administrative remedies is not a jurisdictional prerequisite to a claim for retaliatory discharge under § 451.001 of the Texas Labor Code, which prohibits employers from terminating or discriminating against employees who file workers’ compensation claims.

Holding: The trial court properly exercised subject matter jurisdiction over the § 451.001 retaliatory discharge claim of a school district police officer who did not exhaust his administrative remedies before bringing suit.

Facts: Erik Larsen worked on an at-will basis as a police officer for the Santa Fe Independent School District (the “District”). After suffering an on-the-job injury, Larsen took a leave of absence and began receiving workers’ compensation benefits. When Larsen was unable to return to work after exhausting all leave available under the District’s Leave and Absence Policy, the District terminated his employment. Although the District had an administrative grievance procedure for its at-will employees, Larsen did not invoke it. Instead, he filed suit, asserting that the District terminated his employment in retaliation for his filing of a workers’ compensation claim, in violation of § 451.001 of the Texas Labor Code. The District filed a verified plea to the jurisdiction asserting that Larsen failed to exhaust his administrative remedies, which the trial court denied. The District subsequently filed a traditional motion for summary judgment challenging the merits of Larsen’s § 451.001 claim on several grounds, which the trial court granted. On appeal, the District reasserted its jurisdictional challenge. After noting that the Texas Supreme Court had expressly left open the question of whether a terminated school district employee must exhaust administrative remedies before pursuing a retaliatory discharge suit under § 451.001 in Van Independent School District v. McCarty, 165 S.W.3d 351 (Tex. 2005), the court of appeals held that § 451.001 itself did not establish an exhaustion requirement. The court further determined that nothing in the Education Code required an at-will employee to exhaust administrative remedies before filing a retaliatory discharge claim under § 451.001. Because no law established an exhaustion requirement on the particular facts of the case, the court concluded that the trial court properly exercised subject matter jurisdiction over Larsen’s claims. The court ultimately held that summary judgment was proper because Larsen failed to establish that the District’s Leave and Absence Policy was enforced differently with respect to a similarly situated employee.

Rosemond v. Al-Lahiq, No. 14-08-00550-CV (August 4, 2009) (Justice Frost).

Significance: The trial court has authority to determine the date on which a plaintiff’s medical expert report was received by the defendant and must dismiss a plaintiff’s healthcare-liability claims upon determining that his or her medical-expert report was untimely.

Holding: The trial court did not abuse its discretion in dismissing the plaintiff’s healthcare-liability claims when the evidence was conflicting as to whether plaintiff’s counsel faxed the medical expert report before it was due.

Facts: Ulysses Rosemond filed healthcare-liability claims against a hospital and physician Maha Khalifa Al-Lahiq. Dr. Al-Lahiq moved to dismiss Rosemond’s claims, asserting that Rosemond failed to serve a medical expert report within 120 days of filing his claims as required by section 74.351 of the Texas Civil Practice and Remedies Code. Rosemond’s trial counsel responded with an affidavit in which she swore that she faxed a medical expert report two days before the expiration of the 120-day deadline and received a transmittal reflecting that the report was delivered “o.k.” to the fax number for Dr. Al-Lahiq’s attorney. Applying Texas Rule of Civil Procedure 21a, the court of appeals determined that the affidavit of plaintiff’s counsel gave rise to a rebuttable presumption that service was effected. Dr. Al-Lahiq rebutted that presumption, however, with an affidavit from his attorney’s information technology administrator, who swore that he reviewed the firm’s electronic logging system, received fax log, and incoming electronic faxes and found no record of a fax from plaintiff’s counsel. The court of appeals held that, in light of this conflicting evidence, the trial court had the authority to determine the date on which the report was received. By granting Dr. Al-Lahiq’s motion, the trial court impliedly found that the expert report was not faxed on time. Accordingly, the trial court was required to dismiss the plaintiff’s claims.


Cassidy v. TeamHealth, Inc., No. 01-08-00324-CV (July 23, 2009) (Justice Jennings).

Significance: Physicians and physicians’ associations may not use the Declaratory Judgment Act to create a quasi cause of action to enforce the Medical Practices Act, which does not itself create a private cause of action.

Holding: Neither physicians nor physicians’ associations had standing to challenge a contract between a hospital and a corporation to provide hospital staffing and management services that allegedly constituted the unlawful corporate practice of medicine in violation of the Medical Practices Act.

Relevant Facts: Doctors Crystal Cassidy and Richard Ybarra, who both practice emergency medicine in Memorial Hermann Healthcare System hospitals (“Memorial”), and two emergency medicine physicians’ associations—The American Academy of Emergency Medicine (“AAEM”) and The Texas Academy of Emergency Medicine (“TAEM”)—filed a declaratory judgment action against Memorial, TeamHealth, Inc. (“TeamHealth”), and ACS Primary Care Physicians Southwest, P.A. (“ACS”), among others. Plaintiffs alleged that Defendants had engaged in the unlawful corporate practice of medicine in violation of the Medical Practices Act and sought a declaration that three contracts were void: (1) a contract between TeamHealth and Memorial that allowed TeamHealth to provide emergency room staffing and management services at Memorial’s hospitals; (2) a proposed contract between Cassidy and ACS, an entity that Plaintiffs alleged was merely a shell professional association used by TeamHealth to disguise the for-profit nature of its business; and (3) an executed contract between Ybarra and ACS. The trial court granted Defendants’ pleas to the jurisdiction, which challenged Plaintiffs’ standing. The court of appeals affirmed, holding that (1) Cassidy and Ybarra lacked standing to seek a declaration with respect to the Memorial-TeamHealth contract because they were not parties to it; (2) AAEM and TAEM lacked associational standing to seek a declaration with respect to the Memorial-TeamHealth contract because none of their members were parties to it; (3) Cassidy lacked standing to seek a declaration with respect to the proposed Cassidy-ACS contract because that contract never came into being; and (4) the Ybarra-ACS contract did not confer standing on Plaintiffs to obtain a declaration that Defendants’ conduct violated the Medical Practices Act, which does not itself create a private cause of action.