Dr. Matthew Alexander, M.D., Individually and as President of South Texas Brain and Spine Center And South Texas Brain and Spine Center v. Darlene Garza
ACCEPTED
13-15-00059-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/19/2015 7:39:07 PM
DORIAN RAMIREZ
CLERK
ORAL ARGUMENT REQUESTED FILED IN
13th COURT OF APPEALS
NO. 13-15-00059-CVCORPUS CHRISTI/EDINBURG, TEXAS
3/19/2015 7:39:07 PM
DORIAN E. RAMIREZ
Clerk
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF
SOUTH TEXAS BRAIN AND SPINE CENTER,
Appellant,
v.
DARLENE GARZA,
Appellee.
On Appeal from County Court at Law No. 1, Nueces County, Texas
Cause No. 2012-CCV-61201-1
(Hon. Robert J. Vargas)
BRIEF OF APPELLANT
Respectfully submitted,
COOPER & SCULLY, P.C.
DIANA L. FAUST
diana.faust@cooperscully.com
Texas Bar No. 00793717
R. BRENT COOPER
brent.cooper@cooperscully.com
Texas Bar No. 04783250
KYLE M. BURKE
kyle.burke@cooperscully.com
Texas Bar No. 24073089
900 Jackson Street, Suite 100
Dallas, Texas 75202
(214) 712-9500
(214) 712-9540 (fax)
ATTORNEYS FOR APPELLANT
NO. 13-15-00059-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
OF SOUTH TEXAS BRAIN AND SPINE CENTER,
Appellant,
v.
DARLENE GARZA,
Appellee.
On Appeal from County Court at Law No. 1, Nueces County, Texas
Cause No. 2012-CCV-61201-1
(Hon. Robert J. Vargas)
IDENTITY OF PARTIES AND COUNSEL
In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure,
the following is a list of names and addresses of the parties to the trial court’s order
and their counsel:
Appellant: Mathew Alexander, M.D., Individually and as
President of South Texas Brain and Spine Center
Trial Counsel
for Appellant: Richard C. Woolsey
Woolsey & Associates, P.L.L.C.
555 North Carancahua, Suite 1160
Corpus Christi, Texas 78401-0841
i
Appellate Counsel
for Appellant: Diana L. Faust
R. Brent Cooper
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Appellee: Darlene Garza
Trial and Appellate
Counsel for Appellee: Robert C. Hilliard
Catherine D. Tobin
John B. Martinez
T. Christopher Pinedo
Rudy Gonzales, Jr.
Todd A. Hunter, Jr.
Marion M. Reilly
Hilliard Munoz Gonzales, L.L.P.
719 S. Shoreline Blvd., Suite 500
Corpus Christi, TX 78401
ii
NO. 13-15-00059-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
OF SOUTH TEXAS BRAIN AND SPINE CENTER,
Appellant,
v.
DARLENE GARZA,
Appellee.
On Appeal from County Court at Law No. 1, Nueces County, Texas
Cause No. 2012-CCV-61201-1
(Hon. Robert J. Vargas)
REQUEST FOR ORAL ARGUMENT
Appellant Mathew Alexander, M.D., Individually and as President of South
Texas Brain and Spine Center respectfully requests oral argument in this case and
believes it will help the Court in evaluating the case and resolving this appeal.
TEX. R. APP. P. 39.1, 39.7.
iii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL .......................................................... i
REQUEST FOR ORAL ARGUMENT ................................................................. iii
TABLE OF CONTENTS...................................................................................... iv
TABLE OF AUTHORITIES ................................................................................ vi
STATEMENT OF THE CASE ...............................................................................x
ISSUES PRESENTED......................................................................................... xii
STATEMENT OF FACTS .....................................................................................1
A. Appellee’s Allegations........................................................................1
B. Appellee’s Motion for Substituted Service..........................................2
C. Appellant’s Motions to Dismiss ..........................................................3
D. May 8, 2013 Hearing on Motion to Dismiss .......................................4
E. Appellant’s Supplemental Brief in Support of Second Motion to
Dismiss ...............................................................................................5
F. January 6, 2015 Hearing on Motion to Dismiss, Ruling, and
Appeal ................................................................................................6
SUMMARY OF THE ARGUMENT ......................................................................8
ARGUMENT AND AUTHORITIES ...................................................................10
I. Appellee Failed To Timely Serve Chapter 74 Expert Reports.....................10
A. Standards of Review .........................................................................10
1. Section 74.351 Motions to Dismiss.........................................10
iv
2. Findings of Fact and Conclusions of Law ...............................12
B. Chapter 74 Expert Report Requirement ............................................13
C. Expert Report Not Timely Served.....................................................13
1. Appellee Named and Sued Dr. Mathew Alexander in
Original Petition .....................................................................14
2. Report Faxed After 5:00 p.m. on Last Day of 120-day
Period Is Untimely..................................................................23
CONCLUSION & PRAYER ................................................................................26
CERTIFICATE OF COMPLIANCE ....................................................................28
CERTIFICATE OF SERVICE..............................................................................29
APPENDIX TO BRIEF OF APPELLANT ...........................................................30
v
TABLE OF AUTHORITIES
Case Page(s)
BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2001).............................................................................. 12
Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC,
372 S.W.3d 200 (Tex. App.—Texarkana 2012, no pet.)................................... 19
Cameron County Drainage Dist. No. 5 v. Gonzales,
69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) .........................12, 22
Chilkewitz v. Hyson,
22 S.W.3d 825 (Tex. 1999).............................................................................. 15
Christus Spohn Health Sys. Corp. v. Lopez,
No. 13-13-00165-CV, 2014 WL 3542094
(Tex. App.—Corpus Christi July 17, 2014, no pet.) ......................................... 23
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .......................................................................12, 22
Cox v. Union Oil Co. of California,
917 S.W.2d 524 (Tex. App.—Beaumont 1996, no writ) .................................. 15
Douglas v. KPH Consolidation, Inc.,
No. 14-12-01016-CV, 2013 WL 5883852
(Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.)................................ 15
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) ............................................................................ 11
Enserch Corp. v. Parker,
794 S.W.2d 2 (Tex. 1990)................................................................................ 14
Espeche v. Ritzell,
123 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ............ 17
Harris Methodist Fort Worth v. Ollie,
342 S.W.3d 525 (Tex. 2011) ............................................................................ 10
vi
In re Greater Houston Orthopaedic Specialists, Inc.,
295 S.W.3d 323 (Tex. 2009) .......................................................................14, 21
In re Markowitz,
No. 10-10-00116-CV, 2010 WL 2683067
(Tex. App.—Waco July 7, 2010, no pet.)......................................................... 15
In re Prudential Ins. Co. of Am.,
148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ............................................... 12
Jaffe Aircraft Corp. v. Carr,
867 S.W.2d 27 (Tex.1993)............................................................................... 12
Kadish v. Pennington Assoc., L.P.,
948 S.W.2d 301 (Tex. App.—Houston [1st Dist.] 1995, no writ)..................... 17
Krishnan v. Ramirez,
42 S.W.3d 205 (Tex. App.—Corpus Christi 2001, pet. denied)........................ 17
Larson v. Downing,
197 S.W.3d 303 (Tex. 2006) (per curiam)........................................................ 11
Lone Star HMA, L.P. v. Wheeler,
292 S.W.3d 812 (Tex. App.—Dallas 2009, no pet.) ....................................21, 22
McAllen Police Officers Union v. Tamez,
81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism'd ......................... 12
Nexion Health at Beechnut, Inc. v. Paul,
335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.)........11, 24, 25
Ogletree v. Matthews,
262 S.W.3d 316 (Tex. 2007) ............................................................................ 13
Otero v. Alonzo,
No. 13-10-00304-CV, 2011 WL 765673
(Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) .....................................13, 23
Salinas v. Dimas,
310 S.W.3d 106 (Tex. App.—Corpus Christi 2010, pet. denied)...................... 23
vii
State Bar of Tex. v. Heard,
603 S.W.2d 829 (Tex.1980) ............................................................................. 17
Stockton v. Offenbach,
336 S.W.3d 610 (Tex. 2011) .......................................................................10, 11
Thoyakulathu v. Brennan,
192 S.W.3d 849 (Tex. App.—Texarkana 2006, no pet.)..............................24, 25
Union Pac. Corp. v. Legg,
49 S.W.3d 72 (Tex. App.—Austin 2001, no pet.) ............................................ 18
Univ. of Tex. Health Sci. Ctr. v. Gutierrez,
237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)............... 11
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) .......................................................................11, 12
Zanchi v. Lane,
408 S.W.3d 373, 375 (Tex. 2013) .................................................................... 18
Statutes Page(s)
TEX. CIV. PRAC. & REM. CODE §§ 74.001-.057 (Vernon 2011) .............................. x
TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011) .......................13, 14, 23
TEX. CIV. PRAC. & REM. CODE § 74.351(b).....................................................13, 26
Rules Page(s)
TEX. R. APP. P. 39.1 .............................................................................................. iii
TEX. R. APP. P. 39.7 .............................................................................................. iii
TEX. R. CIV. P. 21a (1990) ..............................................................................23, 24
TEX. R. CIV. P. 71 ................................................................................................ 17
Other Authorities Page(s)
Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013 ........ xii
viii
NO. 13-15-00059-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF
SOUTH TEXAS BRAIN AND SPINE CENTER,
Appellant,
v.
DARLENE GARZA,
Appellee.
On Appeal from County Court at Law No. 1, Nueces County, Texas
Cause No. 2012-CCV-61201-1
(Hon. Robert J. Vargas)
BRIEF OF APPELLANT
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Appellant Mathew Alexander, M.D., Individually and as President of South
Texas Brain and Spine Center (“Dr. Alexander” or “Appellant”) submits this Brief
of Appellant, in accordance with Rules 9.4 and 38 of the Texas Rules of Appellate
Procedure and all local rules of this Court. In support of this appeal from the
denial of Appellant’s Second Motion to Dismiss, Appellant respectfully alleges as
follows:
ix
STATEMENT OF THE CASE
This is a medical malpractice case governed by Chapter 74 of the Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE §§ 74.001-.507
(Vernon 2011) (“Chapter 74” or “TMLA”). On June 19, 2012, Darlene Garza
(“Ms. Garza” or “Appellee”) filed this health care liability claim against Dr.
Alexander, and various other Defendants,1 alleging that the Defendants were
negligent in their care and treatment of Appellee. (CR 7-24).2 Appellee amended
her petition on June 27, 2012. (CR 27-44). On October 31, 2012, Appellant filed
his Motion to Dismiss and Objections to Plaintiff’s Expert Report of J. Martin
Barrash, M.D. Pursuant to Tex. Civ. Prac. & Rem. Code § 74.351 (CR 85-148),
and on November 28, 2012, filed his Second Motion to Dismiss, alleging that
Appellee had not timely served her Chapter 74 expert report. (CR 170-198). On
May 1, 2013, Appellee filed her Response to Appellant’s Second Motion to
Dismiss (CR 209-216), and on May 3, 2012, filed her Amended Response to
Appellant’s Motion to Dismiss and Objections to Chapter 74 Expert Report (CR
220-231). On May 8, 2012, Appellant filed a Reply to Appellee’s Response to
1
Defendant Christus Spohn Health System d/b/a Christus Spohn Hospital Corpus Christi –
Shoreline was dismissed from the case on July 30, 2014 (CR 377), Defendant Melissa Macias,
M.D. was dismissed on January 9, 2015 (CR 408), and Defendant South Texas Brain and Spine
Center was dismissed on February 6, 2015. (SCR 4).
2
Appellant will cite the clerk’s record as (CR [page #]), the supplemental clerk’s record as
(SCR [page #]), the reporter’s record as ([volume #] RR [page #]), and the appendix as (Apx.
[Tab letter]).
x
Second Motion to Dismiss. (CR 255-261). On May 8, 2013, the trial court held a
hearing on Appellant’s Motion to Dismiss, and after considering the arguments of
counsel, took the matter under advisement. (2 RR 54).
On July 9, 2014, Appellant filed a Supplemental Brief in Support of Second
Motion to Dismiss (CR 329-69), arguing that Appellant established that Appellee
did not serve the expert report by October 17, 2012. (CR 338). Appellee
responded. (CR 395). On January 6, 2015, the trial court held a second hearing on
Appellant’s Second Motion to Dismiss, whereupon, after hearing the arguments of
counsel, the court once again took the matter under advisement. (3 RR 55).
Following the hearing, the district court signed an Order denying Appellant’s
Second Motion to Dismiss. (CR 407). Appellant timely filed his Request for
Findings of Fact and Conclusions of Law (CR 427-31), and on February 17, 2015,
the trial court issued its Findings of Fact and Conclusions of Law (SCR 16-20).
Appellant timely filed his Notice of Accelerated Appeal. (CR 434-36).
xi
ISSUES PRESENTED
1. The trial court abused its discretion in denying Dr. Alexander’s
Second Motion to Dismiss. This issue necessarily includes the following sub-
issues:
a. Chapter 74 expert reports must be served within 120 days of the
original petition.3 Dr. Mathew Alexander was sued in the Original Petition
filed June 19, 2012. He is described as a party and as the agent for South
Texas Brain and Spine Center. Appellee may have misnamed him as “Dr.
Lamar Alexander” at places in the petition, but the Original Petition and
Appellee’s pre-suit notice letters make clear that she intended to sue Dr.
Mathew Alexander. Thus, Appellee’s deadline for service of expert reports
was October 17, 2012, the 120th day after Appellee filed the Original
Petition. The trial court erred in concluding otherwise.
b. Chapter 74 expert reports faxed after 5:00 p.m. on the last day
of the 120-day period are considered served the next day under Rule 21a and
are thus untimely. It is undisputed that Appellee faxed the report after 5:00
3
In 2013, the Legislature amended section 74.351(a) to require service of the expert report
within 120 days of the defendant’s answer. See Act of May 24, 2013, 83rd Leg., ch. 870 (H.B.
658), § 2, eff. Sept. 1, 2013. However, this suit was filed in June 2012 and is thus governed by
the prior version of the statute, which requires service of the report within 120 days following the
filing of the original petition. Unless otherwise noted, all references to Chapter 74 and its
individual sections refer to the 2011 version applicable to this suit.
xii
p.m. on October 17, 2012; thus, the report was served on October 18,
2012—one day late. The trial court erroneously concluded that Appellee’s
expert report was timely served.
c. Findings of Fact numbers 3, 4, 5, and 8, and Conclusion of Law
number 18 are supported by legally and factually insufficient evidence, and
Conclusion of Law number 18 is legally erroneous, where examining the
entire contents of the Original Petition as well as the additional evidence
submitted conclusively established that Dr. Mathew Alexander was named
and sued in the Original Petition, such that the section 74.351 expert report
was actually served on October 18, 2012, the 121st day following the filing
of the Original Petition.
xiii
STATEMENT OF FACTS
A. Appellee’s Allegations
On June 19, 2012, Appellee filed her Original Petition asserting claims
related to injuries she alleged resulted from spinal surgery performed by co-
defendant Dr. Stefan Konasiewicz. (CR 7-24). Appellee brought claims of
negligence and gross negligence against Dr. Alexander, based on alleged improper
hiring of Dr. Konasiewicz. (CR 12-15). Further, Appellee asserted that when
Appellant hired Dr. Konasiewicz, he was, or with minimal diligence would have
been, aware of Dr. Konasiewicz’s long history of alleged malpractice. (Id.).
Appellee alleged that Appellant had a legal duty to his patients to hire employees
who could be trusted to competently and safely perform the complicated and
delicate surgeries his patients relied on him for, and by either failing to properly
inquire into Dr. Konasiewicz’s qualifications or by ignoring the results of the
inquiry, Appellant breached his duty to hire competent employees. (CR 13-14).
Further, Appellee alleged that Appellant negligently misrepresented Dr.
Konasiewicz as a competent and reliable surgeon, and failed to properly inform his
patients of Dr. Konasiewicz’s history, and by hiring him and allowing him to
perform surgery on Appellee, Appellant violated the trust. (Id.).
BRIEF OF APPELLANT PAGE 1
B. Appellee’s Motion for Substituted Service
On August 29, 2012, Appellee filed a TRCP 106 Motion for Substituted
Service advising the trial court that Appellee’s First Amended Petition and Request
for Discovery had not been delivered on Appellant because the process server had
been unable to locate Appellant at his place of work located at 1227 3rd Street,
Corpus Christi, Texas 78404, and moving the court to authorize substituted
service. (CR 48-50). On September 18, 2012, the trial court signed a TRCP 106
Order for Substituted Service, which ordered:
On the Motion presented and the supporting affidavit attached from
the Process Server stating the Defendant Mathew Alexander subjects
usual place of work located at 1227 3rd Street, Corpus Christi 78404
can be found and stating specifically the facts showing that service
has been attempted under T.R.C.P. 106(b) and service at the address
listed above will be reasonably effective to give notice of this suit by
delivering a true copy of the documents:
Citation and Plaintiff’s First Amended Petition and Request for
Discovery
attached to anyone over 16 years of age or by attaching a true copy of
the citation and petition securely to the front door entry way. If the
property is protected by a fence, by attaching to the entry gate or to
the Security Guard if the gate is staffed at the address listed above,
which will be reasonably effective to give notice of this suit.
It is further ordered that the return of the Process Service be endorsed
on or attached to the citation, stating when and how the citation was
delivered, and be signed by the Process Server, also the Process
Server is to make due return in accordance with the Texas Rules of
Civil Procedure Rule 107. That any future service on this Defendant
in this cause may be accomplished in the same manner.
BRIEF OF APPELLANT PAGE 2
(CR 55).
C. Appellant’s Motions to Dismiss
On October 31, 2012, Appellant filed his Motion to Dismiss and Objections
to the Expert Report of J. Martin Barrash, M.D. Pursuant to Tex. Civ. Prac. &
Rem. Code § 74.351., arguing that Appellee’s claim against Appellant should be
dismissed because the required 120-day expert report of J. Martin Barrash, M.D.
failed to correctly address the elements required by section 74.351. (CR 85-101).
Appellant filed his Second Motion to Dismiss on November 28, 2012, and
argued that Appellee’s tender of the expert report of Dr. Barrash by facsimile after
5:00 p.m. on October 17, 2012 meant it was served on October 18, 2012, making it
one day late. (CR 170-98). Appellant attached a number of exhibits establishing
that the report was faxed around 6:30 p.m. on October 17, 2012. (CR 175-98).
Therefore, under Section 74.351(b), the court was required to dismiss Appellee’s
claims against Appellant and award reasonable attorney’s fees and costs. (CR 170-
71).
Appellee responded to Appellant’s Second Motion to Dismiss and
Objections on May 1, 2013, in which she argued that the first pleading to assert
claims against Defendant Dr. Mathew Alexander was Plaintiff’s First Amended
Petition filed on June 27, 2012. (CR 209). Further, Appellee argued that nothing
contained in section 74.451(a)’s 120-day deadline required her to serve an expert
BRIEF OF APPELLANT PAGE 3
report on Dr. Alexander before she made him a party to the suit. (CR 210-12).
Appellant filed a Reply to Appellee’s Response to Second Motion to Dismiss,
asserting that Appellee sued Dr. Mathew Alexander in the Original Petition, that
the case was one of misnomer, not misidentification, and that even if
misidentification were involved, there is no exception for failing to timely serve an
expert report. (CR 255-261).
D. May 8, 2013 Hearing on Motion to Dismiss
On May 8, 2013, the trial court held a hearing on the Dr. Alexander’s motion
to dismiss. (2 RR 5-56). Appellant argued that while Appellee’s June 19, 2012
Original Petition addressed “Dr. Lamar Alexander” in the style of the case,
Appellant’s name was Mathew Alexander, that he is the president of the South
Texas Brain and Spine Institute, and Appellee requested service on Appellant in
the petition. (2 RR 24). Further, in the “Parties” section of the Original Petition,
Appellee pleaded:
Defendant Dr. Mathew Alexander is a resident of the state of Texas.
He can be served through his Attorneys, McKibben, Woolsey, and
Villareal, LLP at 555 N. Carancahua St. #1100 Corpus Christi, TX
78401.
(CR 8; 2 RR 24) (emphasis added). And in paragraph 2.5, the Original Petition
stated that South Texas Brain and Spine Center is a professional association
incorporated in the State of Texas, and “can be served through its registered agent,
Dr. Mathew Alexander, at 1227 3rd St., Corpus Christi, Texas 78404-2313.” (Id.)
BRIEF OF APPELLANT PAGE 4
(emphasis added). Appellant argued there was no question that Appellee knew
who she was suing, and that it was a case of misnomer, and not a misidentification
issue. (2 RR 25). Appellant argued that Appellee was to serve the expert report
within 120 days; however, Appellee served the report on the 121st day and
therefore, it was mandatory that the court dismiss the case. (2 RR 25). Appellee
argued that due diligence should apply such that the report was timely. (2 RR 27-
29). Appellee also urged that Appellant was served with the Chapter 74 expert
report within 120 days of naming Mathew Alexander in the amended petition. (2
RR 29). At the conclusion of the hearing, the trial court indicated it would take the
matter under advisement. (2 RR 54).
E. Appellant’s Supplemental Brief in Support of Second Motion to
Dismiss
On July 9, 2014, Appellant filed a Supplemental Brief in Support of Second
Motion to Dismiss. (CR 329-369). Appellant argued that Appellee’s expert report
and curriculum vitae were due to be served by October 17, 2012, 120 days from
the filing of the Original Petition on June 19, 2012. (CR 332). Additionally, even
though Appellee asserted that the expert report was not due to be served until 120
days after she filed the First Amended Original Petition on June 27, 2012, she
knew who she sued and did so in the Original Petition. (Id.). Appellant argued that
Appellee may have misnamed a party—calling Appellant Dr. “Lamar Alexander”
in several places in the Original Petition—but the correct parties were involved.
BRIEF OF APPELLANT PAGE 5
(Id.). Appellant also provided as evidence Appellee’s pre-suit notice letter and
authorization forms for release of health information—sent in an attempt to comply
with section 74.051-052 of the Civil Practice and Remedies Code—which clearly
illustrated that Appellee intended to sue Appellant. (CR 333, 342-47). And,
because Appellee served a report by facsimile at approximately 6:30 p.m. on the
final day for serving reports, under Rule 21a, Appellee served her report one day
late. (CR 336-38).
Appellee responded, arguing that October 25, 2012 was the 120th day after
the pleading first naming Dr. Mathew Alexander—Plaintiff’s First Amended
Petition dated June 27, 2012; therefore, her expert report was timely served on
October 17, 2012 at 6:28 p.m. (CR 397). Additionally, Appellee argued that due
diligence concepts should apply such that her report was timely even if served after
5:00 p.m. (CR 398-400).
F. January 6, 2015 Hearing on Motion to Dismiss, Ruling, and
Appeal
On January 6, 2015, the Hon. Robert J. Vargas held a hearing on Appellant’s
Second Motion to Dismiss (3 RR 5-57). Appellant argued that the correct party in
the case, Dr. Mathew Alexander, had been sued, as he was named as a party in
paragraphs 2.4 and 2.5 of the June 19, 2012 Original Petition; therefore, Appellee’s
expert report was due to be served by October 17, 2012. (3 RR 45). Appellee
served her expert report to Appellant on October 17, 2012, at 6:29 p.m. to 6:32
BRIEF OF APPELLANT PAGE 6
p.m.; therefore, Appellant argued that under Rule 21a, if a report is received via
facsimile after 5:00 p.m., it is deemed served the next day, and the court should
dismiss the case with prejudice. (3 RR 46, 48). Appellee argued that review of
the factual allegations and the claims or causes of action, “Lamar Alexander” was
accused of medical negligence, and Appellee saw her mistake and corrected it
through an amended petition, which was filed on June 27, 2012. (3 RR 49).
Additionally, Appellee argued that Mathew Alexander was never served with the
original petition, that he received the first amended petition, which correctly
asserted Dr. Mathew Alexander. (3 RR 50). Appellant argued that whether Dr.
Mathew Alexander was served with the Original Petition is not dispositive; he was
named as a party defendant and sued in that petition. (3 RR 52-53).
Following the arguments of counsel, the trial court took the matter under
advisement (3 RR 55), and on January 8, 2015, signed an Order denying
Appellant’s Second Motion to Dismiss. (CR 407). Appellant requested findings
of fact and conclusions of law on January 16, 2015 (CR 427-31), and Appellee
filed her Proposed Findings of Fact and Conclusions of Law on January 28, 2015.
(CR 443-49). The trial court filed its findings of fact and conclusions of law on
January 17, 2015. (SCR 16-20). Appellant timely filed his notice of appeal. (CR
434-36).
BRIEF OF APPELLANT PAGE 7
SUMMARY OF THE ARGUMENT
Appellee failed to timely serve a Chapter 74 expert report, entitling
Appellant to dismissal under the statute. This is a health care liability claim
governed by Chapter 74 of the Texas Civil Practice and Remedies Code, which
requires the claimant to serve an expert report and curriculum vitae upon the
defendant within 120 days following the filing of the Original Petition. Rule 21a
governs the service of Chapter 74 reports. Appellee filed her Original Petition on
June 19, 2012; therefore, her expert report should have been served by October 17,
2012. But Appellee did not serve a report by that date.
The record established that Appellee sued Dr. Mathew Alexander in the
Original Petition filed on June 19, 2012, even if Appellee mistakenly named him
“Dr. Lamar Alexander” within various allegations within that pleading.
Examining the Original Petition, Appellee named Dr. Mathew Alexander as a party
to the suit, listed his attorneys for service of process, and alleged that Dr. Mathew
Alexander was the agent for a co-defendant, South Texas Brain and Spine Center.
Appellee also sent pre-suit notice letters specifically naming and describing Dr.
Mathew Alexander and the claims Appellee intended to pursue against him.
Appellee intended to sue Dr. Mathew Alexander, the president of South Texas
Brain and Spine Center. Appellee’s use of “Dr. Lamar Alexander” is nothing more
than a misnomer, which does not affect the date the Original Petition was filed.
BRIEF OF APPELLANT PAGE 8
Because Appellee sued Dr. Mathew Alexander in the Original Petition, Appellee’s
deadline for service of Chapter 74 expert reports was October 17, 2012, rendering
findings of fact numbers 3, 4, 5, and 8 and conclusion of law number 18 supported
by legally and factually insufficient evidence, as well as rendering conclusion of
law number 18 legally erroneous.
It is undisputed that Appellee did not serve an expert report by October 17,
2012. Appellee faxed a report around 6:30 p.m. on that date, but under Rule 21a,
service by fax after 5:00 p.m. is considered served the next day, here October 18,
2012. Texas courts hold that a Chapter 74 report faxed after 5:00 p.m. on the last
day of the 120-day period is late, requiring dismissal under the statute. Appellee
served the expert report one day late.
Therefore, the trial court erroneously concluded that the first time Dr.
Mathew Alexander was named and sued as a defendant was June 27, 2012, with
the filing of the First Amended Petition, such that service of the expert report by
fax on October 18, 2012 was timely. The trial court abused its discretion in
denying Appellant’s Second Motion to Dismiss. This Court should reverse the
trial court’s order, dismiss Appellee’s suit with prejudice, and remand to the trial
court for determination of Appellant’s reasonable attorney’s fees and costs of
court.
BRIEF OF APPELLANT PAGE 9
ARGUMENT AND AUTHORITIES
The trial court abused its discretion in denying Appellant’s Second Motion
to Dismiss. Appellee filed her Original Petition asserting claims against Dr.
Mathew Alexander and South Texas Brain and Spine Center on June 19, 2012.
Appellee’s deadline for serving Chapter 74 reports was October 17, 2012. There is
no dispute that she did not serve expert reports by that date. Thus, Appellant was
entitled to dismissal under the statute. This Court should reverse the trial court’s
order, dismiss Appellee’s suit with prejudice, and remand for a determination of
Appellant’s reasonable attorney’s fees and costs of court.
I. Appellee Failed To Timely Serve Chapter 74 Expert Reports
A. Standards of Review
1. Section 74.351 Motions to Dismiss
A trial court’s determination of whether to dismiss a case for failure to
timely serve an expert report pursuant to section 74.351 of Texas Civil Practice
and Remedies Code generally is reviewed for abuse of discretion. See Harris
Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (interpreting
chapter 74 of the Texas Civil Practice and Remedies Code). Under an abuse of
discretion standard, the appellate court defers to the trial court’s factual
determinations if they are supported by evidence, but reviews the trial court's legal
determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011).
BRIEF OF APPELLANT PAGE 10
To the extent an issue presented requires statutory interpretation or a determination
of whether Chapter 74 applies to a claim, the issue is a question of law reviewed de
novo. See id. Further, though an appellate court reviews a trial court's ruling on a
motion to dismiss for failure to comply with section 74.351 for an abuse of
discretion, whether proper service has been made under Rule 21a is a question of
law reviewed de novo. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716,
718 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Univ. of Tex. Health
Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007,
pet. denied)).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. Larson v. Downing,
197 S.W.3d 303, 304–05 (Tex. 2006) (per curiam). When reviewing the trial
court’s decision for an abuse of discretion, an appellate court may not substitute its
judgment for that of the trial court with respect to resolution of factual issues or
matters committed to the trial court's discretion. See Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992); see also Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985). However, a reviewing court is less deferential
when reviewing the trial court’s determination of the legal principles controlling its
ruling. See Walker, 827 S.W.2d at 840. A trial court has no discretion in
determining what the law is or applying the law to the facts, even when the law is
BRIEF OF APPELLANT PAGE 11
unsettled. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding). A clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840.
2. Findings of Fact and Conclusions of Law
Courts of appeals review fact findings for both legal and factual sufficiency.
See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2001).
Conclusions of law are reviewed de novo. McAllen Police Officers Union v.
Tamez, 81 S.W.3d 401, 404 (Tex. App.—Corpus Christi 2002, pet. dism'd).
An appellate court will sustain a no-evidence complaint if the record shows:
(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital
fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
In reviewing factual sufficiency, the appellate court considers and weighs all
the evidence in the record to determine whether the evidence supporting a fact
finding is so weak or the finding so contrary to the overwhelming weight of the
evidence that the finding should be set aside. See Cameron County Drainage Dist.
No. 5 v. Gonzales, 69 S.W.3d 820, 825 (Tex. App.—Corpus Christi 2002, no pet.)
(citing Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993)).
BRIEF OF APPELLANT PAGE 12
B. Chapter 74 Expert Report Requirement
Section 74.351(a) of the Texas Civil Practice and Remedies Code provides
that any person bringing a suit asserting a health care liability claim must, within
120 days following the filing of the original petition, serve an expert report and
curriculum vitae for each physician or health care provider against whom the claim
is asserted. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011). If the
claimant does not provide an expert report and CV as required, the trial court must,
upon the motion of the affected physician or health care provider, dismiss the
claim with prejudice and award reasonable attorney’s fees and costs of court
incurred by the physician or health care provider. Id. § 74.351(b); See Ogletree v.
Matthews, 262 S.W.3d 316, 319-20 (Tex. 2007); Otero v. Alonzo, No. 13-10-
00304-CV, 2011 WL 765673, at *2-*5 (Tex. App.—Corpus Christi Mar. 3, 2011,
no pet.).
C. Expert Report Not Timely Served
Appellee did not timely serve an expert report on Appellant by October 17,
2012, the 120th day following the date Appellee filed her Original Petition.
Appellee faxed Dr. Barrash’s report after 5:00 p.m. on October 17th; thus, under
Rule 21a, as discussed below, the report was served the following day and was
BRIEF OF APPELLANT PAGE 13
late. Appellee has asserted that she did not sue Dr. Mathew Alexander in the
Original Petition but in a later amended petition, giving Appellee until October 25,
2012 to serve the report. But as explained below, Appellee sued Dr. Mathew
Alexander with the Original Petition and failed to timely serve a report by the
October 17, 2012 deadline.
1. Appellee Named and Sued Dr. Mathew Alexander in Original
Petition
Appellee’s expert’s report and curriculum vitae were due to be served by
October 17, 2012, 120 days from the filing of the Original Petition on June 19,
2012. See TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011). Appellee
asserted that Dr. Mathew Alexander was not sued in the Original Petition, and that
the First Amended Original Petition added Dr. Mathew Alexander as a party. (CR
209-12, 395-98; 3 RR 48-55). Appellee urged a misidentification occurred such
that the expert report deadline did not begin running until the First Amended
Original Petition was filed. (Id.).
But the record demonstrates that Appellee knew who she was suing, and
sued Dr. Mathew Alexander within the Original Petition. (CR 255-56). A
misnomer differs from a misidentification. In re Greater Houston Orthopaedic
Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (citing Enserch Corp. v.
Parker, 794 S.W.2d 2, 4 (Tex. 1990)). Misidentification arises when two separate
legal entities exist and a plaintiff mistakenly sues an entity with a name similar to
BRIEF OF APPELLANT PAGE 14
that of the correct entity. Id. (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 828
(Tex. 1999)). A misnomer occurs when a party misnames itself or another party,
but the correct parties are involved. Id. The petition as a whole must be
considered in determining who is being sued. In re Markowitz, No. 10-10-00116-
CV, 2010 WL 2683067, at *1 (Tex. App.—Waco July 7, 2010, no pet.); Cox v.
Union Oil Co. of California, 917 S.W.2d 524, 526 (Tex. App.—Beaumont 1996,
no writ). The identity of the parties is determined from the substance of the matter,
even though that identity may not be accurately reflected by the style of the case.
Douglas v. KPH Consolidation, Inc., No. 14-12-01016-CV, 2013 WL 5883852, at
*3 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.).
Here, Appellee may have misnamed a party—calling Dr. Mathew Alexander
Dr. “Lamar” Alexander several times in the Original Petition—but she named the
correct party. Appellee identified the “Parties” to the suit on page two of her
Original Petition, stating:
Defendant Dr. Mathew Alexander is a resident of the state of Texas.
He can be served through his Attorneys, McKibben, Woolsey, and
Villareal, LLP at 555 N. Carancahua St. #1100 Corpus Christi, TX
78401.
(CR 8) (emphasis added). Appellee also stated that South Texas Brain and Spine
Center “can be served through its registered agent, Dr. Mathew Alexander, at 1227
3rd St., Corpus Christi, Texas 78404-2313.” (Id.) (emphasis added). These
allegations are the same within the First Amended Petition. (CR 60).
BRIEF OF APPELLANT PAGE 15
Appellee knew she wanted to sue the Dr. Alexander who was president of
the South Texas Brain and Spine Center, and in her petition listed two first names
for the Dr. Alexander she intended to sue. It was undisputed in the record that
there is only one Dr. Alexander who is president of South Texas Brain and Spine
Center, and only one Dr. Alexander who allegedly hired Dr. Konasiewicz. (See 3
RR 49). That Dr. Alexander is Mathew Alexander, M.D., one of those physicians
listed as a party defendant in the Original Petition. (CR 7-24). Appellee included
nothing within her “Factual Allegations” in her Original Petition addressing either
Dr. Mathew Alexander or Dr. Lamar Alexander, but she did include allegations
addressing South Texas Brain and Spine Center. (CR 9-12). To introduce her
“causes of action” section of her pleading, she states: “All of the actions of each
Defendant violated the approximate standard of care for the relevant healthcare
facilities or providers.” (CR 11). But Appellee named no party “Defendant Dr.
Lamar Alexander”; she only named as a party “Defendant Dr. Mathew Alexander.”
(CR 8). Further, it is only within the causes of action alleged as negligence and
gross negligence that Appellee referred to Dr. Mathew Alexander as Dr, Lamar
Alexander, stated as “Negligence: Dr. Melissa Macias, Dr. Lamar Alexander, and
South Texas Brain and Spine Center” in the headings and also in the first sentences
of those sections of her petition. (CR 12, 13, 14). The remainder of the allegations
pleaded within those sections address the conduct of “Defendants.” (Id.).
BRIEF OF APPELLANT PAGE 16
Appellee urged that because Dr. Lamar Alexander was named in the style of
the Original Petition and under the legal theories of negligence and gross
negligence, this meant that Dr. Mathew Alexander was not sued. (3 RR 48-49).
Texas law is clear that legal effect of a pleading is not determined by its style but
by its allegations and evident purpose. Espeche v. Ritzell, 123 S.W.3d 657, 665
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (examining claims asserted
within original petition and concluding that claims asserted included those of party
not named in style until first amended petition); Krishnan v. Ramirez, 42 S.W.3d
205, 224-25 (Tex. App.—Corpus Christi 2001, pet. denied) (examining contents of
petition and concluding that legal effect of pleading was that suit was brought by
Ramirez as guardian of property of child, who was heir of deceased mother and
assignee of father’s claim, despite that “assignee” was not included in style). See
also State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (orig.proceeding)
(explaining it is substance of a pleading that controls the legal effect of a lawsuit;
not its form or style); TEX. R. CIV. P. 71. (pleadings shall be docketed as originally
designated and shall remain identified as designated, unless the court orders
redesignation).5 Construing the Original Petition as a whole, it is clear that
Appellee intended to and did sue the Dr. Mathew Alexander, who is also the
5
Determining the legal effect of the pleading is a question of law. See Kadish v.
Pennington Assoc., L.P., 948 S.W.2d 301, 305 (Tex. App.—Houston [1st Dist.] 1995, no writ)
(Hedges, J., dissenting).
BRIEF OF APPELLANT PAGE 17
president of South Texas Brain and Spine Center, the entity Appellee urges is
partially responsible for negligently hiring and credentialing Dr. Konasiewicz.
(See CR 8-16).
Appellee urged that the petition served with process controls the matter, and
that the Original Petition was not served on Dr. Mathew Alexander. (3 RR 49-55).
But this argument fails under Zanchi v. Lane,6 wherein the Texas Supreme Court
expressly held that, for purposes of calculating the Chapter 74 expert report
deadline, a person becomes a “party” to a suit when named in the petition; service
of that petition is not necessary to start the period for service of the report. (3 RR
52-53). Dr. Mathew Alexander became a party when named as a “Defendant” in
the Original Petition on June 19, 2012, thus triggering the expert report deadline.
Zanchi, 408 S.W.3d at 375.
Appellee’s argument also begs the question: “If Dr. Mathew Alexander had
been served with the Original Petition, would he have been on notice that Appellee
was asserting claims against him?” The answer is yes. See Union Pac. Corp. v.
Legg, 49 S.W.3d 72, 78 (Tex. App.—Austin 2001, no pet.) (“A misnomer occurs
when a plaintiff intends to sue the correct defendant . . . misnames him in the
petition, citation, or both; describes events in the petition in such a way that the
correct defendant, when he receives service thereof, is apprised of the fact that he
6
408 S.W.3d 373, 375 (Tex. 2013).
BRIEF OF APPELLANT PAGE 18
is the intended defendant . . .”); Burchinal v. PJ Trailers-Seminole Mgmt. Co.,
LLC, 372 S.W.3d 200, 214 (Tex. App.—Texarkana 2012, no pet.) (“The main
reason that the statute of limitations is tolled in cases of misnomer is that the party
intended to be sued has been served and put on notice that he is the intended
defendant.”).
And there is no evidence that Appellee was mistaken about whom to sue. In
fact, the evidence establishes that Appellee intended to sue Dr. Mathew Alexander.
Appellee’s pre-suit notice letter and authorization forms for release of protected
health information—sent in an attempt to comply with sections 74.051-.052 of the
Civil Practice and Remedies Code—clearly illustrate that Appellee intended to sue
Dr. Mathew Alexander. (CR 342-47).
Although addressed to Dr. Lamar Alexander, the body of the letter makes
clear that Appellee intends to hold Dr. Mathew Alexander responsible:
This letter serves as formal notice under Chapter 74 of the Texas Civil
Practice & Remedies Code of Mrs. Garza’s claim against Dr.
Konasiewicz, the South Texas Brain and Spine Center, and its
individual doctors and owners.
***
Ms. Garza contends that her injuries were the result of the negligence
and gross negligence of South Texas Brain and Spine Center, Christus
Spohn Health Systems d/b/a Christus Spohn-Shoreline, Dr. Mathew
Alexander, individually and as president of South Texas [B]rain and
[S]pine [C]enter, and against Dr. Melissa Macias and Stefan
Konasiewicz individually and their staffs.
BRIEF OF APPELLANT PAGE 19
(CR 343) (emphasis added). The authorization form for release of protected health
information states:
I, Darlene Garza, hereby authorize Dr. Mathew Alexander, South
Texas Brain and Spine Center, 1227 3rd Street, Corpus Christi,
TX 78404 to obtain and disclose . . . the protected health information
of Darlene Garza . . . .
(CR 344) (emphasis in original). The form continues:
D. The persons or class of persons to whom the health information
of Darlene Garza will be disclosed or who will make use of
said information are:
***
3. Any consulting or testifying experts employed by or on behalf
of Dr. Mathew Alexander, South Texas Brain and Spine
Center, 1227 3rd Street, Corpus Christi, TX 78404 with
regard to the matter set out in the Notice of Health Care Claim
accompanying this authorization;
4. Any attorneys (including staff, secretarial, clerical, or paralegal)
employed by or on behalf of Dr. Mathew Alexander, South
Texas Brain and Spine Center, 1227 3rd Street, Corpus
Christi, TX 78404 with regard to the matter set out in the
Notice of Health Care Claim accompanying this authorization;
(CR 344-45) (emphasis in original). This letter is dated the day before Appellee
filed the Original Petition. (CR 342). Appellee intended to sue Dr. Mathew
Alexander, even if she misnamed him in parts of the Original Petition.
Appellee named as a party defendant and sued Dr. Mathew Alexander in her
Original Petition. Alternatively, her suit relates back to the Original Petition due to
a misnomer which was obviously intended to refer to Dr. Mathew Alexander. See
BRIEF OF APPELLANT PAGE 20
Greater Houston Orthopaedic, 295 S.W.3d at 326 (typically, misnomer cases
involve a plaintiff who has misnamed the defendant, and a petition involving this
type of misnomer is nonetheless effective, with any subsequent amendment
relating back to the date of the original filing).
Further, this is not an instance of misidentification because there is no
evidence that a separate entity—Dr. Lamar Alexander—exists that Appellee
intended to sue. (See 3 RR 49). Appellee clearly intended to sue the Dr.
Alexander who was president of South Texas Brain and Spine Center, and there is
only one such Dr. Alexander—Dr. Mathew Alexander, named as a defendant party
in the Original Petition. Even if this were a case of misidentification—which
Appellant disputes—the Dallas Court of Appeals has held that misidentification of
a defendant and failed attempts to serve the defendant with citation do not extend
the 120-day deadline for service of Chapter 74 expert reports. Lone Star HMA,
L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex. App.—Dallas 2009, no pet.). In
Wheeler, Wheeler initially misidentified a hospital, but correctly identified the
hospital in her second amended petition and served it with citation two months
after she filed the initial petition. Id. at 814. Wheeler served the hospital with an
expert report within 120 days of serving the amended petition, but more than 120
days from filing the original petition. Id. at 815. The Dallas Court refused to
apply the doctrine of misidentification to the service of an expert report, and held
BRIEF OF APPELLANT PAGE 21
that section 74.35l(a) “makes no exception for the time it takes to effectuate
service of the lawsuit, nor does it address failed attempts to serve a lawsuit.” Id. at
816. Therefore, even if Dr. Alexander was misidentified, Appellee still failed to
serve her expert report upon Dr. Alexander within the 120-day deadline from the
filing of the Original Petition naming a Dr. Alexander and South Texas Brain and
Spine Center.
Appellee sued Dr. Mathew Alexander in her Original Petition on June 19,
2012, and had 120 days following that date in which to serve Dr. Alexander with
an expert report and curriculum vitae in accordance with section 74.351 of the
Civil Practice and Remedies Code. Appellee’s deadline for serving those
documents was October 17, 2012. Therefore, the trial court erroneously concluded
that Dr. Mathew Alexander was not named or sued in the Original Petition and that
Appellee’s report deadline was October 25, 2012; findings of fact numbers 3, 4, 5,
and 8 and conclusion of law number 18 are supported by legally and factually
insufficient evidence, and conclusion of law number 18 is legally erroneous. (See
Findings of Fact Nos. 3-5, 8 and Conclusions of Law No. 18 (SCR 16-20)). See
City of Keller, 168 S.W.3d at 810; Gonzales, 69 S.W.3d at 825. And as discussed
below, Appellee failed to serve the report or curriculum vitae by the October 17,
2012 deadline.
BRIEF OF APPELLANT PAGE 22
2. Report Faxed After 5:00 p.m. on Last Day of 120-day Period
Is Untimely
Section 74.351(a) requires the claimant to “serve” the expert report within
120 days of the filing of the original petition. Id. § 74.351(a). This Court has
interpreted the word “serve” in section 74.351(a) to require compliance with Texas
Rule of Civil Procedure 21a. Christus Spohn Health Sys. Corp. v. Lopez, No. 13-
13-00165-CV, 2014 WL 3542094, at *4 (Tex. App.—Corpus Christi July 17,
2014, no pet.) (mem. op.); Otero v. Alonzo, No. 13-10-00304-CV, 2011 WL
765673, at *3 (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) (citing Salinas v.
Dimas, 310 S.W.3d 106, 108 (Tex. App.—Corpus Christi 2010, pet. denied)); See
TEX. R. CIV. P. 21a (1990).7 Rule 21a authorizes service by one of four methods of
delivery: (1) in person, by agent, or by courier receipted delivery; (2) by certified
or registered mail to the party’s last known address; (3) by telephonic document
transfer to the recipient's current telecopier number; or (4) by such other manner as
the court in its discretion may direct. Id.
Rule 21a provides that:
Service by mail shall be complete upon deposit of the paper, enclosed
in a postpaid, properly addressed wrapper, in a post office or official
depository under the care and custody of the United States Postal
Service. Service by telephonic document transfer after 5:00 p.m. local
time of the recipient shall be deemed served on the following day.
7
Rule 21a was amended effective January 1, 2014. Those amendments do not apply, as
the suit and the service dispute at issue arose in 2012.
BRIEF OF APPELLANT PAGE 23
Id. (emphasis added). Notice may be served by a party to the suit, an attorney of
record, a sheriff or constable, or by any other person competent to testify. Id.
An expert report faxed after 5:00 p.m. on the last day of the 120-day period
is not timely. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex.
App.—Houston [14th Dist.] 2011, no pet.)). In Nexion Health, the plaintiff served
an amended report by facsimile at 6:14 p.m. on the final day for serving reports.
Id. at 717. The court held that, under Rule 21a, service by fax after 5:00 p.m. is
considered served the next day, such that plaintiff served her expert report one day
late. Id. at 718. Because the plaintiff did not comply with the service requirements
of section 74.351, the trial court had no discretion to take any action other than to
dismiss the plaintiff’s claims. Id.; see also Thoyakulathu v. Brennan, 192 S.W.3d
849, 850-853 (Tex. App.—Texarkana 2006, no pet.) (late service of expert reports
due to fax machine problems could not except suit from dismissal required by
section 74.351).
In the Second Motion to Dismiss, Appellant asserted that Appellee’s expert
report was not timely served. (CR 170-73). Specifically, on October 17, 2012, Dr.
Barrash’s expert report was faxed between 6:29-6:32 p.m. (CR 171). Appellant
attached to his motion: Exhibit A (Dr. Barrash’s expert report and accompanying
letter from Appellee’s law firm, indicating said facsimile time in the header located
at the top of each page of the cover letter and report) (CR 175-93), Exhibit B
BRIEF OF APPELLANT PAGE 24
(facsimile confirmation page provided by Appellee’s counsel to Defendant
Christus Spohn’s counsel, indicating the fax was sent on 10/17/2012 at 6:28 p.m.)
(CR 194-95), and Exhibit C (the affidavit of Carlos Villarreal, a partner of
Appellant’s counsel’s law firm, attesting that the expert report and cover letter of
Dr. Barrash were received by facsimile on 10/17/2012 between 6:29-6:32 p.m.).
(CR 196-98). Appellee admitted that the fax was sent at 6:28 p.m. on October 17,
2012. (CR 396).
Here, the deadline for serving expert reports was October 17, 2012. As in
Nexion Health, the expert report here served after 5:00 p.m. on that date is
considered served on October 18, 2012. Appellee’s expert report was a day late,
and the trial court had no discretion under the statute but to dismiss Appellee’s
claims with prejudice and award Appellant’s reasonable attorney’s fees and costs.
Nexion Health, 335 S.W.3d at 718; see Thoyakulathu, 192 S.W.3d at 850-853.
The trial court erroneously concluded that Appellee’s expert report was timely
served; findings of fact numbers 3, 4, 5, and 8 and conclusion of law number 18
are supported by legally and factually insufficient evidence, and conclusion of law
number 18 is legally erroneous. (See Findings of Fact Nos. 3-5, 8 and Conclusions
of Law No. 18 (SCR 16-20)). Thus, the trial court abused its discretion in denying
Appellant’s Second Motion to Dismiss. (See CR 407). This Court should reverse
the trial court’s order, dismiss Appellee’s suit with prejudice, and remand for a
BRIEF OF APPELLANT PAGE 25
determination of Appellant’s reasonable attorney’s fees and costs of court. TEX.
CIV. PRAC. & REM. CODE § 74.351(b).
CONCLUSION & PRAYER
Appellee’s deadline for serving expert reports was October 17, 2012.
Appellant established that Appellee did not serve the expert reports by that date.
Therefore, Chapter 74 dictates that Appellant was entitled to dismissal of
Appellee’s claims with prejudice and an award of reasonable attorney's fees and
costs of court.
Appellee sued Dr. Mathew Alexander in the Original Petition filed on June
19, 2012, even if Appellee mistakenly named him Dr. Lamar Alexander within
various allegations in that pleading. Appellee named Dr. Mathew Alexander as a
party defendant to the suit, listed his attorneys for service of process, and indicated
that Dr. Mathew Alexander was the agent for a co-defendant, South Texas Brain
and Spine Center. Appellee’s allegations of conduct supporting her negligence and
gross negligence legal theories addressed the conduct of “Defendants,” and there
was no Defendant “Dr. Lamar Alexander” – only a Defendant Dr. Mathew
Alexander. Appellee also sent a pre-suit notice letter specifically naming and
describing Dr. Mathew Alexander and the claims Appellee intended to pursue
against him individually. Appellee intended to sue Dr. Mathew Alexander, the
president of South Texas Brain and Spine Center. Because Appellee sued Dr.
BRIEF OF APPELLANT PAGE 26
Mathew Alexander in the Original Petition, Appellee’s deadline for service of
Chapter 74 expert reports was October 17, 2012. The trial court erred in
concluding otherwise.
It is undisputed that Appellee did not serve an expert report by October 17,
2012. Appellee faxed a report around 6:30 p.m. on that date, but under Rule 21a,
service by fax after 5:00 p.m. is considered served the next day, here October 18,
2012. Appellee served the expert report one day late, requiring dismissal under the
statute and case law.
Therefore, the trial court abused its discretion in denying Appellant’s Second
Motion to Dismiss. This Court should reverse the trial court’s order, dismiss
Appellee’s suit with prejudice, and remand to the trial court for determination of
Appellant’s reasonable attorney’s fees and costs of court.
THEREFORE, Appellant Mathew Alexander, M.D., Individually and as
President of South Texas Brain and Spine Center respectfully prays this Court
reverse the trial court’s order denying Appellant’s Second Motion to Dismiss,
dismiss Appellee’s claims with prejudice, and remand to the trial court with an
order to determine and award Appellant’s reasonable attorney’s fees and costs of
court. Appellant prays for all such other and further relief, whether general or
special, at law and in equity, as this Court deems just.
BRIEF OF APPELLANT PAGE 27
Respectfully submitted,
COOPER & SCULLY, P.C.
By: /s/Diana L. Faust
DIANA L. FAUST
diana.faust@cooperscully.com
State Bar No. 00793717
R. BRENT COOPER
brent.cooper@cooperscully.com
State Bar No. 04783250
KYLE M. BURKE
kyle.burke@cooperscully.com
State Bar No. 24073089
900 Jackson, Suite 100
Dallas, Texas 75202
(214) 712-9500
(214) 712-9540 (fax)
ATTORNEYS FOR APPELLANT
MATHEW ALEXANDER, M.D.,
INDIVIDUALLY, AND AS PRESIDENT
OF SOUTH TEXAS BRAIN AND SPINE
CENTER
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief of Appellant was prepared using Microsoft
Word 2003, which indicated that the total word count (exclusive of those items
listed in rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, as amended) is
6,576 words.
/s/Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLANT PAGE 28
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of this Brief of
Appellant on the following counsel of record, on the 19th day of March 2015, by
the method indicated:
Mr. Robert C. Hilliard VIA EFILE
bobh@hmglawfirm.com
Mr. Rudy Gonzales, Jr.
rgonzales@hmglawfirm.com
Ms. Marion M. Reilly
marion@hmglawfirm.com
Ms. Catherine D. Tobin
catherine@hmglawfirm.com
Mr. John B. Martinez
john@hmglawfirm.com
Mr. T. Christopher Pinedo
cpinedo@hmglawfirm.com
Mr. Todd A. Hunter
todd@hmglawfirm.com
HILLIARD MUNOZ GONZALES, L.L.P.
719 S. Shoreline Blvd., Suite 500
Corpus Christi, TX 78401
Counsel for Appellee
Mr. Richard C. Woolsey VIA EFILE
RWoolsey@rcwoolseylaw.com
WOOLSEY & ASSOCIATES, P.L.L.C.
555 North Carancahua, Suite 1160
Corpus Christi, TX 78401-0841
Trial Counsel for Appellant
/s/Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLANT PAGE 29
NO. 13-15-00059-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
OF SOUTH TEXAS BRAIN AND SPINE CENTER,
Appellant,
v.
DARLENE GARZA,
Appellee.
On Appeal from County Court at Law No. 1, Nueces County, Texas
Cause No. 2012-CCV-61201-1
(Hon. Robert J. Vargas)
APPENDIX TO BRIEF OF APPELLANT
In compliance with rule 38.1(j) of the Texas Rules of Appellate Procedure,
Appellant Mathew Alexander, M.D., Individually and as President of South Texas
Brain and Spine Center submits this Appendix to his Brief of Appellant containing
the following items:
Tab A: January 8, 2015 Order on Defendants Mathew Alexander,
M.D., Individually and as President of South Texas Brain and
Spine Center, et al.’s Second Motion to Dismiss (CR 407)
Tab B: February 17, 2015 Court’s Findings of Fact and Conclusions of
Law (SCR 16-20)
D/923166v5
BRIEF OF APPELLANT PAGE 30
APPENDIX TAB “A”
CAUSE NO. 2012 CCV 61201-1
Darlene Garza, In the County Court
Plaintiff,
v.
Dr. Stefan Konasiewicz; Dr. Melissa At Law No. One
Macias; Dr. Mathew Alexander,
individually and as President of South
Texas Brain and Spine Center; South
Texas Brain and Spine Center,
Defendants. Nueces County, Texas
ORDER ON DEFENDANTS', DR. MATHEW ALEXANDER, M.D., INDIVIDUALLY
AND AS PRESIDENT OF SOUTH TEXAS BRAIN AND SPINE CENTER, AND
SOUTH TEXAS BRAIN AND SPINE CENTER'S, SECOND MOTION TO DISMISS
After considering Defendants' Dr. Alexander, M.D. Individually and as President
of South Texas Brain and Spine Center, and The South as Brain and Spine Center's
Second Motion to Dismiss, the Court DENIES said
SIGNED on , 20K-
407
APPENDIX TAB “B”
CAUSE NO. 2012 CCV 61201-1
Darlene Garza, § In the County Court
Plaintiff, §
§
v. §
§
Dr. Stefan Konasiewicz and Dr. § at Law #1
Mathew Alexander, Individually and as §
President of South Texas Brain and §
Spine Center, §
Defendants. § Nueces County, Texas
fi
JaimetOrriitru& ORDER ON FINDINGS OF FACT AND CONCLUSIONS OF LAW
After a hearing held on this the 17th day of February 2015, and after considering
all responses and objections and oral argument of all Counsel the Court enters the
following Findings of Fact and Conclusions of Law:
I. FINDINGS OF FACT
1. On June 19, 2012, Plaintiff filed her Original Petition and Requests for
Disclosure,
2. Under Chapter 74 of the Texas Civil Practice and Remedies Code, Plaintiff had
120 days from June 19, 2012 to serve the party defendants named in Plaintiff's Original
Petition with an expert report; 120 days from June 19, 2012 was October 17, 2012.
3. In her Original Petition, Plaintiff did not name Dr. Mathew Alexander as a party to
the suit: Plaintiff did not assert a cause of action against Dr. Mathew Alexander in her
Original Petition nor did Plaintiff list Dr. Mathew Alexander as a defendant in the style of
the case for her Original Petition.
4. Plaintiff then filed her First Amended Petition on June 27, 2012. Plaintiffs First
Page 1
16
Amended Petition named Dr. Mathew Alexander individually and as President as South
Texas Brain and Spine Center as a party to the suit; the First Amended Petition alleged
facts and causes of actions against Dr. Mathew Alexander and listed him as a
defendant in the style of the case. June 27, 2012 was the first time Plaintiff sued and
brought a cause of action against Defendant Dr. Mathew Alexander.
5. Under Chapter 74 of the Texas Civil Practice and Remedies Code, Plaintiff had
120 days from June 27, 2012 to serve Dr. Mathew Alexander with an expert report; 120
days from June 27, 2012 was October 25, 2012.
6. On October 17, 2012, Plaintiff timely served her Chapter 74 expert report, a
report by Dr. Martin Barrash, on Defendant Dr. Stephen Konasiewicz by depositing it
into the mail at the United States Post Office at 809 Nueces Bay Boulevard, Corpus
Christi, TX 78469. The expert report was served on Dr. Konasiewicz postage paid by
certified mail, return receipt requested.
7. Plaintiff has provided an affidavit of Nicole Stoner dated May 3, 2013, and the
testimony of Nicole Stoner at the May 8, 2013, hearing confirming service of the
Chapter 74 expert report on Defendant Konasiewicz by depositing the same with the
United States Postal Service postage paid on October 17, 2012. The Stoner Affidavit
and testimony are prima facie evidence that Plaintiffs Chapter 74 expert report was
served on Dr. Stephen Konasiewicz on October 17, 2012, which is within the 120-day
deadline established by Tex. Civ. Prac. & Rem. Code §74.351 for service of expert
reports. McQuade v. Berry, 2012 Tex. App. LEXIS 10065 (Tex. App.—Fort Worth 2012,
no pet.) (the patient's certificate of service constituted prima facie evidence that he
served the expert report on the dentist). The May 21, 2014, affidavit from Tim
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17
t
Birrenkott, proffered by Defendant Dr. Stephen Konasiewicz, does not obligate a finding
that the prima facie presumption has been overcome. See Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (stating that to establish an abuse of discretion on a trial
court's resolution of a factual issue, a party must show that the "trial court could
reasonably have reached only one decision").
8. Plaintiff timely served Defendant Dr. Mathew Alexander with Plaintiff's Chapter
74 expert report via facsimile on October 17, 2012, at approximately 6:28 p.m. Plaintiff
had until October 25, 2012 to serve an expert report on Defendant Dr. Mathew
Alexander, and her service of her expert report via facsimile on October 17, 2012, was
therefore timely.
9. On October 31, 2012, Defendants Dr. Mathew Alexander, Individually and as
President of South Texas Brain and Spine Center, and South Texas Brain and Spine
Center moved to dismiss Plaintiff's action, alleging that Plaintiffs Chapter 74 expert
report was legally insufficient. Plaintiff filed a response on May 1, 2013.
10. On November 28, 2012, Defendants Dr. Mathew Alexander, Individually and as
President of South Texas Brain and Spine Center, and South Texas Brain and Spine
Center filed and served a Second Motion to Dismiss addressing the timeliness of
Plaintiffs Chapter 74 expert report. Plaintiff filed a response on May 1, 2013, and filed
supplemental response on May 3, 2013. On May 8, 2013, Defendants filed their Reply
in support of their Motion.
11. On November 16, 2012, Defendant Dr. Stephen Konasiewicz filed his Objections
to Plaintiffs expert report pursuant to Texas Civil Practice and Remedies Code § 74.351
et seq. On May 3, 2013, Plaintiff filed her Response to Defendant Dr. Stephen
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Konasiewicz's Objections.
12. On May 8, 2013, the Court conducted a hearing and received evidence on the
Motion to Dismiss and the Objections. The hearing was limited to Defendants'
complaints concerning the timeliness of Plaintiffs Chapter 74 expert report. The Court
took the matter under advisement.
13. On July 8, 2014, Defendant Dr. Stephen Konasiewicz filed a supplemental brief
in support of his objections to Plaintiffs expert's report pursuant to Texas Civil Practice
and Remedies Code § 74.351 et seq., to which Plaintiff responded on January 2, 2015.
14. On July 9, 2014, Defendants Dr. Mathew Alexander, Individually and as
President of South Texas Brain and Spine Center, and South Texas Brain and Spine
Center filed and served a Supplemental Brief in Support of their Second Motion to
Dismiss. Plaintiff filed her Response to Defendants' Supplemental Brief in Support of
Second Motion to Dismiss on January 2, 2015.
15. On January 6, 2015, the Court conducted another hearing on the Motions to
Dismiss and the Objections. The hearing was again limited to Defendants' complaints
concerning the timeliness of service of Plaintiffs Chapter 74 expert reports.
16. On January 8, 2015, this Court overruled Dr. Stephen Konasiewicz's Objections
to the timeliness of Plaintiffs Chapter 74 expert report and denied Defendants', Dr.
Mathew Alexander, Individually and as President of South Texas Brain and Spine
Center, and South Texas Brain and Spine Center, Motion to Dismiss based on the
alleged untimely service of the report.
II. CONCLUSIONS OF LAW
17. Plaintiff served her Chapter 74 expert report, by certified mail, on Defendant Dr.
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19
Stephen Konasiewicz's by depositing it into the mail on October 17, 2012, in
accordance with Texas Rule of Civil Procedure 21a. When a document is served by
certified mail, service is "complete upon deposit of the paper, enclosed in a postpaid,
properly addressed wrapper, in a post office or official depository under the care and
custody of the United States Postal Service." Kendrick v. Garcia, 171 S.W.3d 698, 704
(Tex. App.—Eastland 2005, pet. denied) (emphasis added).
18. Plaintiff served her Chapter 74 expert report on Defendant Dr. Mathew Alexander
within the 120-day deadline mandated by Texas Civil Practice and Remedies Code
Section 74.351(a) because the operative pleading asserting a cause of action against
Dr. Mathew Alexander was Plaintiffs First Amended Petition. Hayes v. Carroll, 314
S.W.3d 494 (Tex. App.—Austin 2010, no pet.) (reasoning that if a defendant has not
been added to a case, there has yet to be a lawsuit filed against that defendant).
19. This Court's rulings are subject to review under an abuse of discretion standard.
McQuade v. Berry, 2012 Tex. App. LEXIS 10065 (Tex. —Fort Worth 2012, no pet.).
Date:
HONG VARGAS
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