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Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. v. Jack Thomas Altaras
Citation: Not availableDocket: 10-09-00236-CV
Court: Court of Appeals of Texas; April 14, 2010; Texas; State Appellate Court
Original Court Document: View Document
Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O. P.A. is appealing a trial court decision regarding a negligence lawsuit filed by Jack Thomas Altaras. Altaras had submitted an expert report from Dr. Bernard A. McGowen, which Gates objected to, along with a motion to dismiss; both were denied. Following an agreement to submit a supplemental report, Gates again objected and moved to dismiss after its submission, which the trial court denied. On appeal, the court found the expert report insufficient, leading to a reversal and remand. Gates contended that the expert affidavit did not reference Gates, P.A., arguing this meant a report was not filed for Gates, P.A., and thus, no extension to correct deficiencies was permissible. Altaras countered that since the claims were solely based on Gates' actions without direct liability claims against Gates, P.A., the omission was acceptable. The court agreed that the affidavit's deficiencies applied to both Gates and Gates, P.A., but did not need to determine if the affidavit constituted no report for Gates, P.A. In a motion for rehearing, Gates sought to dismiss claims against Gates, P.A., stating the affidavit did not address its conduct. The court denied this request, noting Altaras had argued no direct liability claims were made against Gates, P.A., which rendered mention of the association unnecessary. Additionally, Gates had not raised this "no report" argument in the trial court, leading the appellate court to decline addressing it for the first time on appeal. The motion for rehearing was ultimately denied. Cole has not been able to utilize her land for nearly two and a half years, leading her to claim damages of $5.00 per day due to loss of use. This amount is not based on fair rental value but rather on her frustration with the property's condition and the time spent dealing with related issues. During cross-examination, she clarified that her estimate of damages stemmed from the visual disarray rather than any rental value, which is the appropriate measure for such claims. The court found her testimony inconsistent, indicating that it lacked sufficient evidence to support her damage award. As a result, the court reformed the judgment to eliminate the recovery of damages due to the absence of evidentiary support while affirming the judgment as modified. Additionally, a procedural point raised by Nassar regarding the causation of Cole's damages was waived due to lack of timely objection.