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									             NO. 13-09-00662-CV




      IN THE SUPREME COURT OF TEXAS




       IN RE FATIH OZCELEBI, M.D.



         Original Proceeding from the
County Court at Law No. 2, Hidalgo County, Texas


              RELATOR’S REPLY


              Gilberto Hinojosa
           State Bar No. 09701100
        MAGALLANES & HINOJOSA, PC
            1713 Boca Chica Blvd.
       Brownsville, Texas 78520-8140
         (956) 544-6571 (telephone)
          (956) 544-4290 (telecopy)

             Adolfo Campero, Jr.
           State Bar No. 00793454
         CAMPERO & BECERRA, P.C.
        315 Calle Del Norte, Suite 207
            Laredo, Texas 78041
         (956) 796-0330 (telephone)
          (956) 796-0399 (telecopy)



ATTORNEYS FOR FATIH OZCELEBI, M.D.
                       IDENTITY OF PARTIES AND COUNSEL

         Parties to Proceeding                               Counsel
Fatih Ozcelebi, M.D.,                       Gilberto Hinojosa
                                            Texas State Bar No. 09701100
Relator-Defendant.                          MAGALLANES & HINOJOSA, PC
                                            1713 Boca Chica Blvd.
                                            Brownsville, Texas 78520-8140
                                            Tel: (956) 544-6571
                                            Fax: (956) 544-4290

                                            Adolfo Campero, Jr.
                                            State Bar No. 00793454
                                            CAMPERO & BECERRA, P.C.
                                            315 Calle Del Norte, Suite 207
                                            Laredo, Texas 78041
                                            (956) 796-0330 (telephone)
                                            (956) 796-0399 (telecopy)

The Honorable Jaime J. Palacios,            Not represented by counsel.
County Court at Law No. 2, Hidalgo
County, Texas,

Respondent.

K.V. Chowdary, M.D., Individually and       Felipe Garcia, Jr.
as Representative of Valley                 Garcia – Williams Law Firm
Gastroenterology Clinic, P.A., and Valley   201 E. University Dr.
Gastroenterology Clinic, P.A.,              Edinburg, Texas 78542
                                            (956) 386-1900 (telephone)
Real Parties in Interest-Plaintiffs         (956) 386-1922 (telecopy)

                                            David K. Williams
                                            Garcia – Williams Law Firm
                                            201 E. University Dr.
                                            Edinburg, Texas 78542
                                            (956) 386-1900 (telephone)
                                            (956) 386-1922 (telecopy)




                                            i
                                              TABLE OF CONTENTS

                                                                                                                            Page

IDENTITY OF PARTIES AND COUNSEL ....................................................................... i

TABLE OF CONTENTS .................................................................................................... ii

INDEX OF AUTHORITIES .............................................................................................. iii

INTRODUCTION ............................................................................................................... 1

RESPONSE ......................................................................................................................... 2

I.             FACTS OF UNDERLYING CASE ................................................................... 1

II.            MANDAMUS RELIEF AVAILABLE
               AND STANDARD OF REVIEW ...................................................................... 2

III.           EXTRANEOUS MATTERS NOT IN THE RECORD
               OR SCOPE OF THIS APPEAL ......................................................................... 2

IV.            REAL PARTIES PUT CASE TO “SLEEP” ...................................................... 4

V.             RELATOR DILIGENTLY ADDRESSED
               ORDER IN TRIAL COURT AND FILED APPEAL ........................................ 4

VI.            SPECIAL EXCEPTIONS ORDER IS VOID ..................................................... 5

VII.           DEATH PENALTY ORDER IS VOID.............................................................. 7


CONCLUSION AND PRAYER ......................................................................................... 8

CERTIFICATE OF SERVICE ............................................................................................ 9

AFFIDAVIT ...................................................................................................................... 10

APPENDIX




                                                                 ii
                                            INDEX OF AUTHORITIES

                                                                                                                              Page
                                                             CASES

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) ....................... 2

In re Polaris Industries, Inc., 65 S.W.3d 746, 750-751 (Tex. App. – Beaumont 2001,
orig. proceeding) .................................................................................................................. 2

Jones v. Ross, 173 S.W.2d 1022, 1023 (Tex. 1943) ............................................................ 6

Kelly v. Wright, 188 S.W.2d 983 (Tex. 1945) ..................................................................... 6

United States Fidelity and Guar. Co. v. Rossa, 830 s.w.2d 668, 672 (Tex. App. – Waco
1992, writ denied) ................................................................................................................ 2

                                                            RULES

Tex. R. App. P. 33.1(C) ....................................................................................................... 6




                                                                 iii
                                 NO. 13-09-00662-CV


                          IN THE SUPREME COURT OF TEXAS


                           IN RE FATIH OZCELEBI, M.D.


                            Original Proceeding from the
                   County Court at Law No. 2, Hidalgo County, Texas


                                  RELATOR’S REPLY


TO THE HONORABLE SUPREME COURT OF TEXAS:

      COMES NOW Relator Fatih Ozcelebi, M.D., and files this Reply:

      Real Parties' Response is replete with misrepresentations, unsupported allegations,

un-cited references, and inflammatory, extraneous matters.           Relator objects to

consideration of matters not in the Record, including Relator’s deposition attached as

Appendix G to Real Parties’ Response. In essence, Real Parties present this Honorable

Court with the same bald, inflammatory allegations they presented to the Trial Court.

I.    Facts of Underlying Case

      Real Parties sponsored Relator’s visa to practice general medicine in medically

underserved Starr County. (App. Tab 22 at ¶¶1-3). After Relator arrived, he discovered

that Real Parties' clinics were a front to bring in foreign doctors to work at their more

profitable Hidalgo County specialty clinic. (App. Tab 22 at ¶¶1-3, 8). Relator protested.

(App. Tab 22 at ¶¶10-17). Real Parties became abusive and ultimately fired Relator.

(App. Tab 22 at ¶¶10-17). Relator’s employment agreement allowed him to take patient



                                            1
records upon termination. (App. Tab 23, Exhibit 1). Regardless, Real Parties maliciously

filed a criminal complaint for trespass and theft of patient information. (App. Tab 22 at

¶¶46-58).

II.      Mandamus Relief Available and Standard of Review

         Relator appeals entry of a prohibited general demurrer and violations of Due

Process, not merely an order granting special exceptions. (Petition at 5-6, 8-9). The trial

court’s findings of fact in the discovery process are not given the same deference as a full

trial on the merits. In re Polaris Industries, Inc., 65 S.W. 3d 746, 750-751 (Tex. App.—

Beaumont 2001, orig. proceeding) citing United States Fidelity & Guar. Co. v. Rossa,

830 S.W.2d 668, 672 (Tex.App.-Waco 1992, writ denied). Rather, a reviewing court

conducts an independent inquiry of the entire record. Id. An order imposing discovery

sanctions “’may be reversed for an abuse of discretion even if findings and evidence

support it.’” Id. citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440

(Tex.1997).

III.     Extraneous Matters Not in the Record or Scope of this Appeal

         A.      Deposition Testimony

         First and foremost, Relator’s deposition transcript was never filed with the Trial

Court, was not admitted in evidence, and could not have been considered by the Trial

Court.        (App. Tabs 18, 24, 25).      Moreover, Relator objected to Real Parties’

misrepresentations regarding the deposition testimony. (App. Tab 24 at 10:10-13:9, 24:1-

6; App. Tab 25 at 6:19-7:18, 9:6-7, 20:11-21, 25:2-3; App Tab 28 at 21:19-22:6). For

example, Relator objected to accusations that he paid a public official to drop his criminal


                                              2
case. (App. Tab 24 at 11:1-13:9). Rather, Relator had simply hired an attorney to

expunge his record. (App. Tab 24 at 11:1-13:9).

        Further, Relator did not walk out of his deposition. (Response at 9). Subject to

Relator’s objection, the transcript shows Relator’s attorney instructed Relator to step out

while he discussed his objections to Real Parties’ harassment of Relator. (Response,

App. G at 17:1-30:9). Also, Real Parties’ claim that Relator intended to voluntarily

abandon his claims is unsupported and untrue. (Response at 15). Finally, Real Parties’

implication that Relator is not qualified to verify his own pleadings depends on un-cited

deposition testimony. (Response at 15).

        Real Parties’ un-cited purported summaries of Relator’s testimony are an attempt

to smear Relator. (Response at 15). Subject to Relator’s objection, the transcript shows

Real Parties were combative, harassing, sarcastic, and insulting. (App. Tab 24 at 10:19-

20, 12:16-22; Response, App. G). In fact, Real Parties admit to asking the same question

over and over until they got the answer they wanted. (App. Tab 24 at 17:2-6). The only

evidence Real Parties could have presented is marred by their own misconduct.

        B.       Current Discovery Production

        The state of the Record and its application to the law at the time the Death Penalty

Order was entered, not the alleged state of current production, are relevant to this appeal.

(Response at 10). Nonetheless, Real Parties allege that Relator’s have failed to produce

certain documents.1 (Response at 10). However, on August 21, 2009, Relator served the


1
 Real Parties request sanctions for failure to produce criminal records while also arguing the related claims have
been dismissed. (App. Tab 24 at 15:13-16, 21:14-22). This evidences Real Parties’ bad faith.


                                                        3
“sworn, detailed itemization of documents” that shows that Relator did in fact produce

responsive documents to the greatest extent possible. (App. Tabs 12, 29). On September

28, 2009, Relator filed such. (App. Tab 30, Exhibit D).

IV.        Real Parties Put Case to “Sleep”

           Real Parties’ allegation that Relator allowed documents to be destroyed after

receiving requests is unsupported. (Response at 6-7, 10-11). Rather, Real Parties served

their Second Requests for Production approximately 6 years after they filed suit. (App.

Tabs 10, 18). In fact, the Trial Court continued the 2004 trial setting because Real Parties

served voluminous requests on the eve of trial. (App. Tabs 10, 11, 26). Real Parties then

waited 2 years after Relator timely produced objections, responses, and documents to file

a motion to compel.2 (App. Tabs 13, 18 at 4-5). Real Parties are responsible for several

years of inactivity. (App. Tab 18).

V.         Relator Diligently Addressed Order in Trial Court and Filed Appeal

           Since learning of the Special Exceptions Order, Relator has continually objected to

lack of notice. (App. Tabs 5, 6, 7, 8, 9, 24, 25). On July 22, 2009, Relator objected to

not receiving a written order denying his Motion to Abate. (App. Tab 26 at 3:14-24,

4:16-5:22). On August 18, 2009, Relator hired new counsel, who worked diligently to

catch up.         (App. Tab 18 at 11-15).               On October 19, 2009, Relator’s new counsel

addressed the Orders with the Trial Court. (App. Tab 9 at 18:16-21:12). The Trial Court

tersely affirmed the void Orders, and Relator stated he would file an appeal. (App. Tab 9

at 22:9-24:2). On December 10, 2009, after diligently compiling as much of the Record

2
    There was absolutely no activity for approximately 8 months. The District Clerk even sent the file to storage.


                                                            4
as possible, Relator filed a petition for writ of mandamus. (App. Tab 31). Relator should

not be penalized for trying to resolve these issues with the Trial Court first.

VI.        Special Exceptions Order is Void

           A.       Special Exceptions Legally Defective

           Real Parties continue to generally refer to “various pleadings that require

verification.”         (Response at 13).          They cannot make their Special Exceptions more

specific by referencing another pleading, their Supplemental Motion for Sanctions.

(Response at 13). This undermines established procedure and further violates Relator’s

Due Process rights. Relator should not be expected to hunt for and review extraneous

motions to understand the special exceptions.

           B.       Special Exceptions Properly Verified

           Real Parties claim Relator’s pleadings fail to state that his defenses “were proper

or supported by evidence” and only state that “claims would be asserted.” (Response at

13). Real Parties neither cite law that specifically requires such language, specify which

defenses fail to provide such language, nor identify where Relator stated his intent to

plead defenses in the future. Nonetheless, Relator’s lack of consideration defense is

properly verified.3 (Petition at 10).

           C.       No Notice of Special Exceptions Hearing or Order

           Real Parties admit their request for hearing was in their Second Motion to Compel,

a motion with which Relator was not served. (Response at 3; App. Tab 3). Hiding



3
    Lack of capacity is irrelevant. (Response at 13; App. Tab 2).


                                                            5
requests and notices for hearings in unrelated motions and orders with complicated cross-

referencing is a violation of Relator’s Due Process rights.

       Further, Real Parties’ waiver argument is flawed. (Response at 13). Neither a

formal exception to a trial court ruling or order nor a signed, separate order is required to

preserve a complaint for appeal. TRAP 33.1(c). In addition, Respondent erroneously

considered and ruled upon a prohibited general demurrer. (App. Tab 2). Kelly v. Wright,

188 S.W. 2d 983 (Tex. 1945); Jones v. Ross, 173 S.W. 2d 1022, 1023 (Tex. 1943).

Relator may object for the first time on appeal. Id.

       Real Parties further accuse Relator of “material misrepresentations.” (Response at

14-15). Real Parties refer to hearing testimony of December 30, 2008, in which Relator’s

attorney, Mr. Villarreal, says that he “recently” got a copy of the docket sheet and

discovered the Special Exceptions Order. (App. Tab 24 at 31:7-9). However, Mr.

Villarreal provided an affidavit stating that he learned of the Special Exceptions Order in

January 2009. (App. Tab 3 at ¶6). Mr. Villarreal provided his affidavit prior to receiving

hearing transcripts. (App. Tabs 1, 3). The docket sheet also shows a hearing was held

January 5, 2009. (App. Tab 18 at 8). Clearly, the discrepancy is due to a lapse in

memory, not an attempt to mislead.

       D.     No Notice of Special Exceptions Order

       Relator was not given notice of the Special Exceptions Order. (App. Tabs 3, 18).

Real Parties’ claim that “copies of the proposed Orders were delivered to Relator’s

counsel by facsimile and by hand delivery” is not supported by any Record evidence.

(Response at 14). Real Parties also provide no legal support that Relator is deemed to


                                             6
have notice of the Special Exceptions Order because it was on the docket sheet.

(Response at 14).

VII.   Death Penalty Order is Void

       Real Parties’ allegations that Relator’s admissions are on the Record are

unsupported. (Response at 10-11, 14, 19). Rather, testimony from the deposition was

not read into the Record, the deposition was not offered or admitted into evidence, and

there was no live testimony. (App. Tabs 3, 18, 24, 25). Relator also did not waive Real

Parties’ duty to attach exhibits to their motion. (Response at 17). When Relator received

a copy of the motion (at the hearing), he did not receive a copy of the alleged deposition

transcript. (Tab 24 at 18:20-19:2). Relator did not waive Real Parties’ obligation to

provide evidence to the Trial Court. (Tab 24 at 18:20-19:2). It is Real Parties’ burden to

prove the alleged discovery abuses and the justification for sanctions. (Petition at 13). In

fact, Relator really had no need to present witnesses because Real Parties wholly failed to

carry their burden. (App. Tab 24). Real Parties only presented bald, misrepresented

assertions. (App. Tab 24).

       Furthermore, the Trial Court did not “re-assert” the Special Exceptions Order as

additional sanctions. (App. Tab 24 at 46:16-48:8). Real Parties requested Relator’s

defensive pleadings be stricken as a discovery sanction. (App. Tab 24 at 46:16-47:19).

But the Trial Court specifically stated “that’s gonna be held in abeyance.” (App. Tab 24

at 47:20-21). Months later, in response to the inclusion of matters not actually ordered,

the Trial Court said “…I know the Order is after that. But I remember specifically saying

that in reference to any type of sanctions, those are—I was going to hold off on…But in


                                             7
reference to the sanctions, any sanctions, those I held off on, and they were on open

record.”      (App. Tab 27 at 4:12-15, 5:24-6:1).                     Real Parties’ differentiation of

counterclaims and defensive pleadings is immaterial. (Response at 17). The Special

Exceptions Order, and thus the Death Penalty Order, strikes both.                             (App. Tab 4).

Furthermore, if the Court “quoted” Relator’s alleged testimony, it is because Real Parties

drafted the Death Penalty Order, not because the Trial Court was referencing competent

evidence in the Record. (App. Tab 16).

        Finally, Real Parties argue the same date discrepancy to claim that Relator was

aware of the Second Compel Order prior to January 2009. (Response at 16). Yet, the

evidence shows Relator (and likely Real Parties)4 were not notified of such Order. (App.

Tabs 3 at ¶8; 18). Regardless, such allegation is irrelevant.

                                   CONCLUSION AND PRAYER

        Real Parties present the same sweeping, unsubstantiated, inflammatory allegations

they have presented to the Trial Court for years. The Record shows that Relator has been

denied Due Process, harassed and maligned, and ultimately, tried and judged without

competent evidence and a jury.                Relator requests this Honorable Court mandamus

Respondent to set aside the Orders at issue and allow Relator to present all of his claims

and defenses at trial.




4
 Approximately one year and ten months after the Trial Court entered the Second Compel Order, Real Parties
submitted an order setting a hearing for the motion disposed by the Second Compel Order. (App. Tab 18 at 6-7).


                                                        8
                                         Respectfully submitted,



                                  By:    __________________________
                                         Gilberto Hinojosa
                                         Texas State Bar No. 09701100
                                         MAGALLANES & HINOJOSA, PC
                                         1713 Boca Chica Blvd.
                                         Brownsville, Texas 78520-8140
                                         Tel: (956) 544-6571
                                         Fax: (956) 544-4290

                                         Adolfo Campero, Jr.
                                         State Bar No. 00793454
                                         CAMPERO & BECERRA, P.C.
                                         315 Calle Del Norte, Suite 207
                                         Laredo, Texas 78041
                                         (956) 796-0330 (telephone)
                                         (956) 796-0399 (telecopy)

                                         ATTORNEYS FOR RELATOR-
                                         DEFENDANTFATIH OZCELEBI, M.D.

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument
was forwarded, on this the 30th day of June, 2010, to the counsel of record for each of the
parties via the service method indicated as follows:

                                VIA CERTIFIED MAIL
                                    Felipe Garcia, Jr.
                                   David K. Williams
                              Garcia – Williams Law Firm
                                  201 E. University Dr.
                                 Edinburg, Texas 78542
                              (956) 386-1900 (telephone)
                               (956) 386-1922 (telecopy)



                                         _______________________
                                         ADOLFO CAMPERO, JR.


                                            9
                    AFFIDAVIT OF ADOLFO CAMPERO, JR.

STATE OF TEXAS §
                          §
COUNTY OF TRAVIS          §

      BEFORE ME, the undersigned notary, on this day appeared ADOLFO
CAMPERO, JR., who is personally known to me and, after I administered an oath to him,
upon his oath he did say as follows:

       1.     My name is Adolfo Campero, Jr. I am an active member in good standing
of the State Bar of Texas. I have never been convicted of a felony or crime of moral
turpitude. I am a principal in the firm of Campero & Becerra, P.C., attorneys for Fatih
Ozcelebi, M.D., in the lawsuit styled K.V. Chowdary, M.D. D/B/A Valley
Gastroenterology Clinic, P.A. v. Fatih Ozcelebi, M.D., Cause No. CL-29, 133-B, pending
in the County Court at Law No. 2 of Hidalgo County, Texas. I am over the age of 21
years, and have personal knowledge of the facts stated herein, which were gained in my
capacity and role as attorney of record for Fatih Ozcelebi, M.D.in the litigation. I am
fully competent to make this affidavit.

       2.     The above instrument is Fatih Ozcelebi, M.D.’s Reply. I have reviewed the
Reply and conclude that every factual statement is support by competent evidence
included in the Record.

      FURTHER AFFIANT SAYETH NOT


                                        _______________________
                                        ADOLFO CAMPERO, JR.

      Subscribed and sworn to before me this 30th day of June, 2010.

                                        ________________________
                                        Notary Public, State of Texas




                                          10
                                NO. 13-09-00662-CV




                         IN THE SUPREME COURT OF TEXAS




                         IN RE FATIH OZCELEBI, M.D.



                          Original Proceeding from the
                 County Court at Law No. 2, Hidalgo County, Texas


                            SUPPLEMENTAL APPENDIX


18.   Docket Sheet

28.   Transcript of May 4, 2009 Hearing

29.   Cover Letter to David Williams and Affidavit Regarding Plaintiff’s Second Set of
      Requests for Production and fax confirmation sheet

30.   Response to Motion to Quash Depositions and for Protection by Plaintiffs Valley
      Gastroenterology Clinic, P.A. and Dr. K.V. Chowdary

31.   Official Notice of Filing Petition for Writ of Mandamus from Court of Appeals,
      13th Judicial District

								
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