Finality Bites—Again

2 minute read

JMJ Development, LLC v. Ramolia

Dallas Court of Appeals, No. 05-21-01100-CV (July 27, 2022) 
Justices Myers, Molberg (Opinion, linked here), and Garcia 

Another appeal down the drain because of confusion about whether a judgment was final. 

Ramolia sued JMJ and Barton for breach of contract. They counterclaimed. Ramolia sought and secured summary judgment on his breach-of-contract claim. Even though Ramolia had not moved for summary judgment on JMJ and Barton’s claims against him, the court’s summary judgment order was titled “Final Judgment.” And it included the “magic” finality language blessed by the Texas Supreme Court in Lehmann v. Har-Con: “All relief requested in this case and not expressly granted herein is denied. This judgment finally disposes of all parties and claims and is appealable.” JMJ and Barton timely moved for a new trial but did not file their notice of appeal until after the deadline had expired, including the time for an extension.
Faced with the prospect that the tardy notice of appeal would bar their appeal altogether, JMJ and Barton argued the judgment was not final and appealable because Ramolia’s summary judgment motion had not sought disposition of their claims against him. Tex. R. Civ. P. 166a(c). The Court of Appeals disagreed. 
A judgment is final, the Court said, “if it actually disposes, or ‘clearly and unequivocally’ states it disposes, of all claims and all parties.” The summary judgment order did that, whether it should have or not. “A judgment that grants more relief than a party is entitled to is subject to reversal”—assuming it is timely appealed—“but it is not, for that reason alone, interlocutory,” and therefore non-appealable. “If it is clear, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of the judgment.” In this case, the Court held, the judgment “was clear and unequivocal, the record is irrelevant, and further analysis is prohibited.” Because JMJ and Barton didn’t file their notice of appeal on time, therefore, the Dallas Court dismissed the appeal, and JMJ and Barton are stuck with a judgment that might have been “subject to reversal,” at least in part, had they recognized that judgment was final and filed their notice on time.

Carrington Coleman Partner John B. Gessner Named to TABC Public Safety Advisory Committee

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Carrington, Coleman, Sloman & Blumenthal LLP hospitality industry attorney John B. Gessner has been selected to serve as a member of the Texas Alcoholic Beverage Commission’s Public Safety Advisory Committee.

The committee is tasked with providing feedback to the TABC on its performance towards its goals of protecting the safety and welfare of the public through consistent and efficient enforcement of the Alcoholic Beverage Code and related rules. Mr. Gessner is the first of three new committee members announced by TABC Chairman Kevin Lilly.

“The TABC’s mission is of vital importance,” said Mr. Gessner. “It is an honor to be selected as a member of this committee to assist the TABC in consideration of public safety issues to better protect the citizens of Texas.”

An experienced and respected food and beverage hospitality lawyer, Mr. Gessner has served on the board of directors and executive committee of the Greater Dallas Restaurant Association for more than a decade.

He is a former president and chair of the Texas Restaurant Association (TRA) and has served on its executive board for more than a decade. He also served as chairman of the association’s political action committee and led lobbying efforts that helped secure permanent status for new alcohol regulations, introduced on a temporary basis during COVID restrictions, allowing Texas restaurants to offer alcohol “to go.”

A frequent lecturer and author on hospitality-related topics, Mr. Gessner was a featured speaker during the TRA’s 2022 Texas Restaurant Show, attended by more than 4,000 restaurateurs and industry experts. He also has been a regular participant in the Cornell University Center for Hospitality Research Roundtable since 2005.

At Carrington Coleman, he advises established and emerging brands in the areas of restaurant development; real estate and leasing; business operations and strategic planning; alcohol licensing; franchising; and formation and governance. He also has significant experience defending clients in employment and commercial litigation, as well as class actions. Mr. Gessner has represented clients before the EEOC, the Department of Labor, OSHA, and alcoholic beverage regulatory agencies.

Duty Not to Distract a Driver Applies Only to Others in the Vehicle?

2 minute read

Gamble v. Anesthesiology Associates, P.S.C.

Dallas Court of Appeals, No. 05-20-01024-CV (July 21, 2022)
Justices Schenck, Osborne, and Smith (Opinion, linked here)

While driving on I-35 with her cruise control set to 80, Blain struck and killed two people who had stopped on the side of the highway to change a tire. At the time, Blain was engaged in a 20-minute hands-free cellphone conversation with Richter, a friend who had called Blain from Kentucky to tell her he was retiring. Blain and her employer—she was on a business trip at the time—settled. But Richter and his employer secured summary judgment against the various theories of direct, vicarious, and joint liability asserted against them. The Court of Appeals ultimately reversed and remanded on a joint-enterprise theory of liability—not on the merits, but because Richter and his employer had not moved for summary judgment on that particular issue. See Tex. R. Civ. P. 166a(c). But it was the Court’s ruling on another ground that stands out.

Plaintiffs claimed Richter was negligent because he distracted Blain while he knew she was driving. But the appeals court agreed with Richter that he “had no duty to exercise reasonable care to avoid distracting Blain once he realized she was driving.” The Court acknowledged a “recognized legal duty that a person must exercise reasonable care to avoid distracting a driver while [that driver is] operating a vehicle.” But it determined that duty applies only to passengers in the vehicle, or perhaps to others in “close proximity” like those in an adjacent vehicle. “A remote cellphone caller” like Richter, the Court held, “owes no duty to the general public to control the conduct of the call recipient as a matter of law.” The appeals court therefore affirmed summary judgment on that score.
One has to wonder how far this principle extends. What if the caller asked the driver to “FaceTime” or to “Zoom” or engage in other conduct that the caller knew or reasonably should know would have the driver focus on his or her phone instead of the road? What if, instead of a call, the defendant had engaged the driver in a text or instant-message exchange, or had sent a photo or a video with the message, “You gotta see this!”—all while knowing the recipient was driving? None of these situations were present in Gamble, of course. But it’s hard to see why a “remote cellphone user” who contacts someone, knowing that other person is driving (as Richter did here), should owe any less “duty to the general public” not to distract the driver than a backseat passenger who similarly asks the driver to look at a text, photo, video or otherwise knowingly draws the driver’s attention away from the road.

Veteran Dallas Bankruptcy Attorney Mark Castillo Joins Carrington Coleman

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Noted bankruptcy and creditors’ rights litigator Mark Castillo has joined Dallas-based Carrington, Coleman, Sloman & Blumenthal LLP as a partner.

Mr. Castillo represents debtors, secured and unsecured creditors, official committees, and trustees in all areas of bankruptcy law, litigation, and corporate matters. He has tried suits involving millions of dollars in bankruptcy-related claims, including fraud, breach of fiduciary duty, turnover, conversion, and contract matters, and has litigated or settled millions more in preference and fraudulent-transfer claims.

“Our firm is dedicated to protecting the interests of our clients and their businesses and has a longstanding reputation for excellence in the bankruptcy arena,” says Carrington Coleman’s Managing Partner Monica Latin. “We are excited to welcome to the team a colleague of Mark’s stature and experience.”

A frequent speaker and author on bankruptcy and litigation topics, Mr. Castillo is a member of the College of the State Bar of Texas, an honorary society for qualified attorneys dedicated to both high ethical standards and improved training for all attorneys. He is also a Master and Pupilage Group Leader with the Hon. John C. Ford American Inn of Court, and has earned professional honors from Texas Super Lawyers, D Magazine, and the Dallas Business Journal.

Mr. Castillo joins Carrington Coleman from Curtis Castillo PC, along with bankruptcy associate Robert Rowe. Also joining the firm is litigation associate Rae Guyse, formerly of Haynes and Boone.

Refresher: To Get Judgment on a Rule 11 Agreement, Plead Breach of Contract

2 minute read

Patel v. Gonzalez Hotels, LLC

Dallas Court of Appeals, No. 05-20-01020-CV (July 7, 2022)
Justices Partida-Kipness (Opinion, linked here), Reichek, and Goldstein

A little reminder is welcome and helpful every now and then—although it’s often less fun for the parties who are being reminded.

Mahesh Patel sued Mehulkumar Patel, Chirag Patel, and Jayson Patel for breach of fiduciary duty, theft, and other claims relating to Gonzalez Hotels, LLC, of which they were all co-owners. After a mediation, the parties entered into a Rule 11 agreement in which Mehulkumar, Chirag, and Jayson “consented to the entry of an agreed judgment making them liable for half of Mahesh’s past and future contributions to the company.” Mahesh promptly filed a motion to enforce that agreement. But Mehulkumar, Chirag, and Jayson withdrew their consent before the trial court could act on that motion. Mahesh then filed a motion for summary judgment, “the stated goal of [which] was to obtain an agreed judgment to enforce the terms of the agreement.” The trial court granted the motion and entered judgment for Mahesh, but the Dallas Court of Appeals reversed.
“Written settlement agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement,” the Court acknowledged. But, as the Texas Supreme Court explained in Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) and elsewhere, “[w]hen consent is withdrawn [before the trial court renders judgment], the agreed judgment that was part of the settlement may not be entered. The party seeking enforcement of the settlement agreement must pursue a separate claim for breach of contract, which is subject to the normal rules of pleading and proof.” Here, Mahesh had not asserted a claim for breach of the agreement, and neither his motion to enforce nor his MSJ could substitute for that required pleading. The Court of Appeals therefore reversed and remanded to the trial court, where Mahesh no doubt will now plead breach and take a second swing at enforcing the agreement.

“Taking Responsibility” ≠ Negligence as a Matter of Law

2 minute read

Yedlapalli v. Jaldu

Dallas Court of Appeals, No. 05-20-00531-CV (June 28, 2022)
Justices Myers, Partida-Kipness (Opinion, linked here), and Carlyle

While Yedlapalli was stopped at a stop sign, Jaldu rear-ended her. Yedlapalli testified that, from her rear-view mirror, she saw Jaldu on her cell phone and that Jaldu never slowed down. Jaldu, in contrast, claimed she was at a complete stop behind Yedlapalli and reached down to get a piece of paper on the floor, which caused her foot to slip off the brake and her car to roll forward and tap Yedlapalli’s car.

Yedlapalli sued Jaldu, claiming not only damage to her car but also bodily injury. On cross-examination, Yedlapalli’s attorney asked Jaldu if she was “taking one hundred percent responsibility for the crash.” Jaldu agreed that her car hit Yedlapalli’s when her foot slipped from the brake. Jaldu also admitted she told Yedlapalli at the scene that it was her “mistake,” making her responsible for the damage to Yedlapalli’s car. But Jaldu refused to take responsibility for Yedlapalli’s purported injuries, claiming everyone was “completely fine” immediately after the accident. Jaldu also explained to the jury that it was “fishy” that Yedlapalli sued only after Yedlapalli did not pay her medical bills.
Yedlapalli moved for a directed verdict based on Jaldu’s purportedly “taking one hundred percent responsibility” for the accident. The trial court denied the request for directed verdict. The jury later answered “no” on the question whether Jaldu’s negligence caused the occurrence in question. So, the trial court entered a take-nothing judgment against Yedlapalli.
Yedlapalli appealed, challenging the denial of the motion for directed verdict and the factual sufficiency of the evidence supporting the jury’s finding on negligence. On the directed verdict, the court of appeals explained that acceptance of responsibility, standing alone, does not establish negligence as a matter of law. The court observed that a jury could have concluded a person of ordinary prudence, sitting at a complete stop a safe distance behind Yedlapalli, could have reached down to pick up a piece of paper, as Jaldu testified. On factual sufficiency, the court similarly explained that a rear-end collision, standing alone, does not mean a jury’s failure to find negligence is not supported by sufficient evidence. The jury could have credited Jaldu’s account and concluded that a reasonably prudent person would have acted in the same way. Or, the jury could have concluded Yedlapalli failed to meet her burden of proving negligence by a preponderance of the evidence. Therefore, the court of appeals affirmed.

Med Spa FAQ

3 minute read

black magnifying glass

What is a med spa?

The American Med Spa Association defines a medical spa as a hybrid between an aesthetic medical center and a day spa” with four core elements: (1) the provision of non-invasive (i.e. non-surgical) aesthetic medical services; (2) under the general supervision of a licensed physician; (3) performed by trained, experienced and qualified practitioners; (4) with onsite supervision by a licensed healthcare professional. AmSpa – Med Spa FAQ

While that definition is technically accurate, it obscures the point that because med spas offer medical services, they are considered medical practices in Texas and must comply with the rules and regulations that apply to traditional doctor’s offices.

What kinds of services do med spas offer?

In addition to providing aesthetic cosmetic treatments common in many spa settings, med spas provide services that cross the line into the practice of medicine. A small sample of these services include:

  • Laser Hair Removal
  • Botox injections and other dermal fillers
  • IV infusions
  • Platelet-Rich Plasma injections
  • Hormone therapy
  • Cosmetic surgeries

The Texas Medical Board refers to these types of services as Nonsurgical Medical Cosmetic Procedures and requires that an appropriately trained physician, or properly supervised midlevel practitioner, perform an appropriate patient assessment and issue an order for the medical cosmetic procedure. Title 22, Texas Administrative Code, Section 193.17, Nonsurgical Medical Cosmetic Procedures

What legal structure must med spas have?

Because med spas are medical practices, they must follow the requirements of Texas law regarding professional entities. Medical practices can only be structured as professional limited liability companies (PLLC) or professional associations (PA). Texas Business Organizations Code, Section 301.003(3)

They may not be formed as corporations or regular limited liability companies (LLC).

Who can own a med spa?

Medical services can only be offered through professional entities owned by physicians. Texas Business Organizations Code, Sec. 301.004, 006-007 In certain circumstances, non-physicians can co-own a medical practice with the physician. The only allowances are for podiatrists, chiropractors, optometrists, and sometimes physician assistants. Texas Business Organizations Code, Sec. 301.012

That means that nurse practitioners or unlicensed persons cannot form a “partnership” with physicians to own a med spa. Said another way, unless you are a physician, chiropractor, optometrist podiatrist, or physician assistant (in limited situations), you cannot own a med spa. This too is a violation of the Corporate Practice of Medicine.

Can a non-physician co-own a med spa with the physician?

In certain circumstances, non-physicians can co-own a medical practice with the physician. The only allowances are for podiatrists, chiropractors, optometrists, and sometimes physician assistants. Texas Business Organizations Code, Sec. 301.012 That means that nurse practitioners, registered nurses, estheticians, or unlicensed persons cannot form a “partnership” with physicians to own a med spa. Said another way, unless you are a physician, chiropractor, optometrist podiatrist, or physician assistant (in limited situations), you cannot own a med spa. This too is a violation of the Corporate Practice of Medicine.

Can a dentist be the “medical director” of a med spa?

I’ve seen mention that the Texas State Board of Dental Examiners allows dentists to use Botox for dental esthetic and dental therapeutic purposes. I cannot confirm that policy, but it would not be surprising as there are several therapeutic dental uses for Botox: high lip lines, Temporomandibular Joint Disorder, Bruxism, and dentures no longer fitting due to shifting jaw muscles. However, Botox for facial cosmetic purposes would not be in a dentist’s scope of practice.

In my view, dentists can only prescribe Botox and fillers for dental purposes. I do not think dentists can provide Botox for purely cosmetic purposes. The other issue is that since cosmetic Botox is a medical service, and dentists are not medical doctors, they cannot own or co-own a medical practice. Neither are dentists qualified to serve as “Medical Director” since they are not licensed to practice medicine in Texas.

What are some of the risks of a non-compliant med spa?

It is a violation of Texas’s Corporate Practice of Medicine doctrine for corporations or standard LLCs to provide medical services. Doing so could bring civil and criminal penalties. Texas Occupations Code, (Medical Practice Act), including sections 155.001, .003, 157.001, 164.052(a)(8),(13), and 165.001, .051, .101, .151, .156

Is the physician required to be on-site or at mid-level required to be on-site?

Either the midlevel or the physician can do the good-faith exam via telehealth or in person. They must be the ones to write the order for the medical procedure.

SCOTx: No “Informal” Fiduciary Duty from Corporate Director to Shareholder, Regardless of Pre-Existing Relationship of Trust and Confidence

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In the Matter of the Estate of Richard C. Poe

Supreme Court of Texas, No. 20-0178 (June 17, 2022)
Opinion (linked here) by Justice Huddle 

In Ritchie v. Rupe, the Texas Supreme Court held that, “[a]bsent a contractual or other legal obligation, [an] officer or director [of even a closely held corporation] has no duty to conduct the corporation’s business in a manner that suits an individual shareholder’s interests.” Instead, officers and directors owe fiduciary duties only to the corporation, itself, including “the dedication of [their] uncorrupted business judgment for the sole benefit of the corporation.” But what if a director has a relationship of trust and confidence with a shareholder that arose prior to and independent of their relationship as director and shareholder? The Supreme Court has held previously that such a relationship can give rise to an “informal fiduciary duty.” Can a director simultaneously owe both (i) conventional fiduciary duties to the corporation and (ii) an “informal” fiduciary duty to an individual shareholder, based on their pre-existing relationship? Is the latter an “other legal obligation” that is the exception to the rule as announced in Ritchie? In Poe, the Supreme Court answered, no, “a director cannot simultaneously owe these two potentially conflicting duties.”

Richard C. (“Dick”) Poe operated several car dealerships in El Paso. He consolidated control of them in PMI, a Texas corporation, which was the general partner of several limited partnerships that, in turn, owned and operated the dealerships. Poe’s son, Richard, was the sole shareholder of PMI. But Richard gave his father, Dick, an irrevocable proxy to vote those shares, and Dick was the sole director of PMI. In 2015, Dick caused PMI to issue additional shares of stock, which he bought from PMI for $3.2 million. These new shares made Dick the majority shareholder. Son Richard was not notified of these additional shares until after Dick died, shortly after the shares were issued. Richard sued Dick’s longtime accountant, his office manager, and his attorney for, among other things, conspiring with Dick to breach his fiduciary duties both to PMI and to Richard in issuing the new shares to himself. Richard contended his father’s “informal” fiduciary duty to him, arising from their longstanding relationship of trust and confidence, triggered the “other legal obligation” language of Ritchie, meaning that Dick owed fiduciary duties to Richard, individually, as well as to PMI.

A unanimous Supreme Court of Texas disagreed, holding that

[A]s a matter of law, a corporation’s director cannot owe an informal duty to operate or manage the corporation in the best interest of or for the benefit of an individual shareholder. A director’s fiduciary duty in the management of a corporation is solely for the benefit of the corporation.

Because the trial court erred by allowing the jury to decide about the existence and breach of an alleged “informal” fiduciary duty from Dick to Richard, the Supreme Court reversed and (i) rendered judgment against Richard on his claims for breach of an “informal” fiduciary duty, and, (ii) because of other errors in the charge, remanded for a new trial on the remaining issues.

SCOTx: No “Informal” Fiduciary Duty from Corporate Director to Shareholder, Regardless of Pre-Existing Relationship of Trust and Confidence

2 minute read

In the Matter of the Estate of Richard C. Poe

Supreme Court of Texas, No. 20-0178 (June 17, 2022)
Opinion (linked here) by Justice Huddle 

Ken Carroll

In Ritchie v. Rupe, the Texas Supreme Court held that, “[a]bsent a contractual or other legal obligation, [an] officer or director [of even a closely held corporation] has no duty to conduct the corporation’s business in a manner that suits an individual shareholder’s interests.” Instead, officers and directors owe fiduciary duties only to the corporation, itself, including “the dedication of [their] uncorrupted business judgment for the sole benefit of the corporation.” But what if a director has a relationship of trust and confidence with a shareholder that arose prior to and independent of their relationship as director and shareholder? The Supreme Court has held previously that such a relationship can give rise to an “informal fiduciary duty.” Can a director simultaneously owe both (i) conventional fiduciary duties to the corporation and (ii) an “informal” fiduciary duty to an individual shareholder, based on their pre-existing relationship? Is the latter an “other legal obligation” that is the exception to the rule as announced in Ritchie? In Poe, the Supreme Court answered, no, “a director cannot simultaneously owe these two potentially conflicting duties.”

Richard C. (“Dick”) Poe operated several car dealerships in El Paso. He consolidated control of them in PMI, a Texas corporation, which was the general partner of several limited partnerships that, in turn, owned and operated the dealerships. Poe’s son, Richard, was the sole shareholder of PMI. But Richard gave his father, Dick, an irrevocable proxy to vote those shares, and Dick was the sole director of PMI. In 2015, Dick caused PMI to issue additional shares of stock, which he bought from PMI for $3.2 million. These new shares made Dick the majority shareholder. Son Richard was not notified of these additional shares until after Dick died, shortly after the shares were issued. Richard sued Dick’s longtime accountant, his office manager, and his attorney for, among other things, conspiring with Dick to breach his fiduciary duties both to PMI and to Richard in issuing the new shares to himself. Richard contended his father’s “informal” fiduciary duty to him, arising from their longstanding relationship of trust and confidence, triggered the “other legal obligation” language of Ritchie, meaning that Dick owed fiduciary duties to Richard, individually, as well as to PMI.

A unanimous Supreme Court of Texas disagreed, holding that

[A]s a matter of law, a corporation’s director cannot owe an informal duty to operate or manage the corporation in the best interest of or for the benefit of an individual shareholder. A director’s fiduciary duty in the management of a corporation is solely for the benefit of the corporation.

Because the trial court erred by allowing the jury to decide about the existence and breach of an alleged “informal” fiduciary duty from Dick to Richard, the Supreme Court reversed and (i) rendered judgment against Richard on his claims for breach of an “informal” fiduciary duty, and, (ii) because of other errors in the charge, remanded for a new trial on the remaining issues.

Perfection Not Required—An Incomplete Medical Authorization May Still Toll Limitations for Healthcare Liability Claims

3 minute read

Gary Lew Maypole, Sr. v. Acadian Ambulance Service, Inc.
Dallas Court of Appeals, No. 05-18-00539-CV (June 10, 2022)
En Banc Opinion by Justice Molberg (linked here)
Concurrence by Justice Schenck (linked here)

After a motion for reconsideration en banc, the Dallas Court of Appeals issued a new opinion that allows the statute of limitations for healthcare liability claims to be tolled when the plaintiff serves a medical authorization form that substantially—even if not fully—complies with statutory requirements. Under the Texas Medical Liability Act, Chapter 74 of the Texas Civil Practice and Remedies Code, the statute of limitations is tolled for 75 days if the plaintiff provides defendants with a pre-suit notice of claim accompanied by an authorization for the release of the injured person’s healthcare information. The statute sets forth the form of the required authorization. As the Fifth Court of Appeals explained, the legislature’s purpose in enacting these pre-suit notice requirements is to reduce the frequency and severity of healthcare liability claims, but in a manner that does not unduly restrict a claimant’s rights. With this purpose in mind, the Court concluded that Plaintiff’s failure to list certain healthcare providers on the medical authorization form did not preclude the tolling of limitations under section 74.051(a) of the TMLA.

Gary Maypole, II suffered an anoxic brain injury while being transported by ambulance between hospitals. He later died. Gary’s father and minor children filed suit alleging medical malpractice against the critical-care transport companies. Plaintiff served Defendants with the required pre-suit notice letter and a medical records authorization, but Plaintiff did not list the names of the physicians and healthcare providers who treated Gary in the five years prior to the incident at issue. Plaintiff also did not list “none” in the section for physicians or healthcare providers excluded from the authorization. Defendants argued the medical authorization was fatally flawed, the seventy-five-day tolling period did not apply, and summary judgment should be granted because Plaintiff filed suit more than two years after the alleged malpractice. The en banc Court of Appeals disagreed for many reasons.
The Court first concluded that the statute does not require all healthcare providers to be identified for the tolling provision to apply. The Court relied heavily on the fact that Defendants made no attempt to obtain Maypole’s records from the providers listed on the authorization and were not harmed by the lack of information. It rejected several of Defendants’ technical arguments and “the notion that a ‘virtually perfect’ authorization” is required for tolling, holding that the statute was not intended “to be a game of legal ‘gotcha’” to deny access to the judicial system. The record here distinguished this case from others in which the plaintiffs did not provide authorizations with their notices. Here, the Plaintiff listed the two relevant hospitals as providers, and Defendants already had medical records in their possession that listed Maypole’s treating physician, list of prior health issues, and list of medications. The Court concluded the authorization was sufficient to toll limitations, and therefore, reversed the summary judgment and remanded to the trial court for further proceedings. The Court also noted that abatement, not dismissal, is the appropriate remedy when a defendant demonstrates that an incomplete authorization hinders its ability to investigate, evaluate, and negotiate prior to the parties joining issue in a lawsuit.
Justice Schenck concurred, but would have held the statute is procedural and when notice (whether defective or not) is given, the limitations period is tolled for 75 days and fixed. Any defects in the authorization can be cured by various forms of legal relief, short of dismissal of the plaintiff’s claims on limitations grounds, based on the court’s discretionary assessment of the form’s deficiency.