Stefan Konasiewicz, M.D. v. Pedro Lomas ( 2015 )

NUMBER 13-15-00062-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
STEFAN KONASIEWICZ, MD., Appellant,
v.
PEDRO LOMAS, Appellee.
On appeal from the County Court at Law No. 3
of Nueces County, Texas.
NUMBER 13-15-00063-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DR. MATHEW ALEXANDER, MD.,
INDIVIDUALLY AND AS PRESIDENT
OF SOUTH TEXAS BRAIN AND
SPINE CENTER, Appellant,
v.
PEDRO LOMAS, Appellee.
On appeal from the County Court at Law No. 3
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Longoria
Dr. Stefan Konasiewicz, M.D., and Dr. Mathew Alexander, M.D., individually and
as president of the South Texas Brain and Spine Center, appeal the trial court’s orders
denying their motions to dismiss for failure to timely serve the expert report required by
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Chapter 74 of the Texas Civil Practice and Remedies Code.1 See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a) (West, Westlaw through Chapter 46, 2015 R.S.). We affirm in
part, and reverse and remand in part.
I. BACKGROUND
Appellee Pedro Lomas sought treatment for back pain at the South Texas Brain
and Spine Center. Dr. Konasiewicz performed surgery on him. After allegedly
experiencing injuries and negative complications as a result of the surgeries, Lomas filed
suit in County Court at Law No. 3 of Nueces County against Dr. Konasiewicz and Dr.
Alexander.2 Lomas alleged that Dr. Konasiewicz was negligent and grossly negligent in
performing the surgeries and that Dr. Alexander was negligent and grossly negligent in
hiring him and permitting him to operate on Lomas. Lomas filed his original petition on
June 19, 2012, and his First Amended Petition on June 27, 2012. Under the law in effect
at the time, the deadline to serve the expert report was October 18, 2012, 120 days after
the date Lomas filed his original petition. See Act of June 17, 2005, 79th Leg., R.S., ch.
635, 2005 Tex. Gen. Laws 1590 (amended 2013) (current version at TEX. CIV. PRAC. &
REM. CODE ANN. 74.351(a) (West, Westlaw through Chapter 46, 2015 R.S.)).
1 We have removed South Texas Brain and Spine Center from the style of the case because Lomas
nonsuited the Center after the appellants filed their notice of appeal. See Univ. of Tex. Med. Branch at
Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam) (observing
that a nonsuit has the effect of “rendering the merits of the case moot”). Lomas also asserted but nonsuited
claims against Dr. Melissa Macias, M.D. and Christus Spohn Health System d/b/a Christus Spohn Hospital
Corpus Christi – Shoreline. None of the nonsuited defendants are parties to this appeal.
2 Darlene Garza and Juan Garza, also patients of Dr. Konasiewicz at the South Texas Brain and
Spine Center, filed suit against Dr. Konasiewicz and Dr. Alexander in the County Court at Law No. 1 of
Nueces County. Dr. Alexander and Dr. Konasiewicz also appeal the trial court’s orders denying their
motions to dismiss on identical grounds as the motions in this case. We dispose of those appeals in a
separate opinion. See Konasiewicz v. Garza, Nos. 13-15-00058-CV, 13-15-00059-CV, 13-15-00060-CV,
13-15-00061-CV, 2015 WL _____ (Tex. App.—Corpus Christi July 30, 2015, no pet. h.) (mem. op.).
3
A. Service of Dr. Konasiewicz with the Expert Report
Lomas had difficulty serving Dr. Konasiewicz with the lawsuit. Lomas obtained a
motion for substituted service permitting Lomas to serve Dr. Konasiewicz by mail at three
possible addresses. See TEX. R. CIV. P. 106. By October 17, 2012, the last day of the
120-day period, Dr. Konasiewicz had not yet answered Lomas’s lawsuit. Lomas’s
counsel decided to serve an expert report on Dr. Konasiewicz by mailing copies of it to
all three addresses mentioned in the order for substituted service. Nicole Porter Stoner,
a paralegal at the law firm representing Lomas, later averred in an affidavit that:
On October 17, out of an abundance of precaution, we mailed the Chapter
74 expert report to Dr. Konasiewicz at the following addresses:
a. Stefan Konasiewicz
1227 3rd St.
Corpus Christi, Texas 78404-2196
b. Stefan Konasiewicz
1400 Ocean Dr. Apt. 904C
Corpus Christi, TX 78404-2196
c. Stefan Konasiewicz
William Beaumont
Army Medical Center
5005 N. Piedras St.
El Paso, Texas 79920
Dr. Konasiewicz filed an original answer and jury demand on November 16, 2012,
and, on November 21, 2012, objections and a motion to dismiss for untimely service of
the expert report. Dr. Konasiewicz argued that he produced evidence that demonstrated
the report was actually mailed on October 18, 2012. The trial court held a hearing on Dr.
Konasiewicz’s motion to dismiss at which Stoner testified that she mailed the reports on
October 17, 2012 via certified mail, postpaid, by enclosing them in properly-addressed
letters and depositing them into the outside box of the Nueces Bay Boulevard Post Office
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in Corpus Christi, Texas. Each envelope contained a letter to Dr. Konasiewicz that was
also dated October 17, 2012. However, neither the reports nor the accompanying letters
contained a certificate of service. See TEX. R. CIV. P. 21a. In response, Dr. Konasiewicz
introduced the certified mail envelopes in which Stoner mailed the expert reports and
which had legible tracking numbers. Dr. Konasiewicz also introduced the track and
confirm reports from the United States Postal Service (USPS) website for those same
tracking numbers. Each track and confirm report reflected that the envelopes bearing
those tracking numbers were “accepted” by the post office in Portland, Texas, on October
18, 2012. The trial court ended the hearing and took the matter under advisement.
At a second hearing on the motions to dismiss, Dr. Konasiewicz introduced into
evidence an affidavit from Tim Birrenkott, a USPS supervisor of customer service.
Birrenkott averred that after reviewing Stoner’s affidavit, her testimony at the previous
hearing, the certified mail envelopes in which Stoner mailed the expert reports, and the
track and confirm reports for those envelopes, he concluded that: (1) the track and
confirm reports indicate that the expert reports were not mailed from any box in the
Nueces Bay Boulevard Post Office but were instead mailed from Portland, Texas; (2) the
reports were mailed on October 18, 2012, and not October 17, 2012; and (3) the certified
mail envelopes must have been handed directly to a post office employee and not placed
in a box to be mailed.
B. Service of Dr. Mathew Alexander
The trial court considered Dr. Alexander’s motion to dismiss at the same two
hearings that it considered Dr. Konasiewicz’s motion. Dr. Alexander argued in his motion
that service of the report was untimely because Stoner faxed it to him after 5:00 p.m. on
5
October 17, 2012. Texas Rule of Civil Procedure 21a provides that a document
transmitted by fax after 5:00 p.m. is deemed received the following day. TEX. R. CIV. P.
21a(b)(2).
Lomas responded that service was timely because October 18, 2012 was within
120 days of the date Lomas filed his First Amended Petition. Lomas reasoned that the
120-day period ran from the First Amended Petition because he did not name Dr. Mathew
Alexander in his Original Petition. Lomas argued that the Original Petition instead
referred to a “Dr. Lamar Alexander” instead of to Dr. Mathew Alexander. Lomas argued
in the alternative that the trial court should recognize a due diligence exception for service
of an expert report and hold that service of Dr. Alexander was timely in this case.
C. Ruling
The trial court issued an order denying Dr. Alexander’s motion to dismiss and a
separate order overruling Dr. Konasiewicz’s objections to the report and denying his
motion to dismiss. The trial court entered the following identical findings of fact and
conclusions of law in each case:
Findings of Fact
1. On June 19, 2012, Plaintiff filed his Original Petition and Requests for
Disclosure.
2. Under Chapter 74 of the Texas Civil Practice and Remedies Code,
Plaintiff has 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 his 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 his Original Petition nor did Plaintiff list Dr. Mathew
Alexander as a defendant in the style of the case for his Original Petition.
4. Plaintiff then filed his First Amended Petition on June 27, 2012.
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Plaintiff’s First Amended Petition named Dr. Mathew Alexander
individually and as President [of] South Texas Brain and Spine Center
as a party to the suit; the First Amended Petition alleged facts and
causes of action 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 his Chapter 74 expert
report, a report by Dr. Martin Barrash, on Defendant Stephen
Konasiewicz by depositing it into the mail at the United States Post
Office at 809 Nueces Boulevard, Corpus Christi, TX 7849. 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 Plaintiff’s 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 Bierrenkott, 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 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 his service of his expert report
via facsimile on October 17, 2012, was therefore timely.
9. On October 31, 2012, Defendants Dr. Mathew Alexander, Individually
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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 Plaintiff’s 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 Plaintiff’s Chapter 74 expert report.
Plaintiff filed a response on May 1, 2013, and filed [a] 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 Plaintiff’s expert report pursuant to Texas Civil Practice and
Remedies Code § 74.351 et seq. On May 3, 2013, Plaintiff filed his
Response to Defendant Dr. Stephen 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 Plaintiff’s
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 Plaintiff’s 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 briefing in
Support of this Second Motion to Dismiss. Plaintiff filed his 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
Plaintiff’s Chapter 74 expert reports.
16. On January 8, 2015, this Court overruled Dr. Stephen Konasiewicz’s
Objections to the timeliness of Plaintiff’s 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
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untimely service of the report.[3]
Conclusions of Law
17. Plaintiff served his Chapter 74 report, by certified mail, on Defendant Dr.
Stephen Konasiewicz[] 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 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 his Chapter 74 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 Plaintiff’s
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. App.—
Fort Worth 2012, no pet.).
Dr. Konasiewicz and Dr. Alexander appealed. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(10) (West, Westlaw through Chapter 46, 2015 R.S.). Only appellants’
second motions, those challenging the timeliness of the report, are at issue in these
appeals. We address both appeals together in one opinion because the factual and legal
issues are related. See TEX. R. APP. P. 47.1.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision on a motion to dismiss a health care liability claim
for abuse of discretion. See Am. Transitional Care Centers of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877–78 (Tex. 2001). The trial court abuses its discretion when it acts without
3 The dates of the hearings in the findings of fact are incorrect and are actually the dates of the
hearings in the companion cases before a different judge.
9
reference to guiding rules or principals or “when it renders an arbitrary and unreasonable
decision lacking support in the facts or circumstances of the case.” Samlowski v. Wooten,
332 S.W.3d 404, 410 (Tex. 2011) (citations omitted). Under this standard, legal and
factual sufficiency challenges are not independent grounds of review but relevant factors
for us to consider in deciding whether the trial court abused its discretion.4 See IKB Indus.
(Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Goodson v.
Castellanos, 214 S.W.3d 741, 756 (Tex. App.—Austin 2007, pet. denied). We will find an
abuse of discretion in the trial court’s resolution of factual matters only if the record is
such “that the trial court could reasonably have reached only one decision.” RGV
Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 269 (Tex. App.—Corpus Christi
2009, pet. denied) (citing and quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding)). There is no abuse of discretion if the trial court “bases its decision on
conflicting evidence and some evidence supports its decision.” Unifund CCR Partners v.
Villa, 299 S.W.3d 92, 97 (Tex. 2009); see Goodson, 214 S.W.3d at 756. Conversely, we
review the trial court’s conclusions of law or the application of law to the facts de novo.
Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011). Statutory interpretation is a
question of law that we review de novo. San Antonio Extended Med. Care, Inc. v.
Vasquez, 327 S.W.3d 193, 196 (Tex. App.—San Antonio 2010, no pet.).
Section 74.351(a) of the Texas Civil Practice and Remedies Code requires the
plaintiff in a health care liability case to serve on each party an expert report
4 Evidence is legally sufficient if it “would enable reasonable and fair-minded people to differ in their
conclusions.” City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). A ruling is supported by factually
insufficient evidence if it “is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust.” Goodson v. Castellanos, 214 S.W.3d 741, 756 (Tex. App.—Austin 2007, pet.
denied).
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demonstrating that the plaintiff’s claim has merit. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351. The version of section 74.351 applicable at the time Lomas filed his case
required the plaintiff to serve an expert report within 120 days of the date the plaintiff filed
the original petition.5 See Act of June 17, 2005, 79th Leg., R.S., ch. 635, 2005 Tex. Gen.
Laws 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN.
74.351(a)). Whether service satisfies the requirements of section 74.351 of the Texas
Civil Practice and Remedies Code is a question of law, but we defer to the trial court’s
resolution of disputed factual matters if its decision is supported by the record. See
Zanchi v. Lane, 349 S.W.3d 97, 99 (Tex. App.—Texarkana 2011) (“When the facts are
not in dispute, the question of whether service satisfied the requirements of Section
74.351(a) is a purely legal question.”), aff'd, 408 S.W.3d 373 (Tex. 2013). If a plaintiff
fails to timely file an expert report, the trial court has no discretion to do anything but grant
a motion to dismiss. Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007).
The requirement that the plaintiff timely “serve” the report on the defendant within
120 days requires the plaintiff to comply with rule 21a of the Texas Rules of Civil
Procedure. Fulp v. Miller, 286 S.W.3d 501, 510 (Tex. App.—Corpus Christi 2009, no
pet.); Goforth v. Bradshaw, 296 S.W.3d 849, 853 (Tex. App.—Texarkana 2009, no pet.);
Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied). Rule 21a authorizes four methods of service: (1)
delivery in person, by agent, or courier-receipted delivery; (2) certified or registered mail;
(3) telephonic document transfer; or (4) “such other manner as the court in its discretion
5The current version of section 74.351 provides that the 120-day deadline begins on the date that
each defendant filed their original answer. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West,
Westlaw through Chapter 46, 2015 R.S.).
11
may direct.” TEX. R. CIV. P. 21a. Rule 21a provides that service is deemed complete
“upon deposit of the document, postpaid and properly addressed, in the mail or with a
commercial delivery service.” Id. A certificate of service, return of the officer, or affidavit
of “any person” showing service is prima facie evidence of service. Id.; Mathis v.
Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (per curiam).
III. DR. KONASIEWICZ’S ISSUE
By his sole issue, Dr. Konasiewicz challenges the sufficiency of the evidence
supporting findings of fact numbers six and seven and conclusion of law number
seventeen. We conclude that while the trial court erred when it found that Lomas
produced prima facie evidence of service, the trial court did not abuse its discretion when
it credited Lomas’s evidence over Dr. Konasiewicz’s evidence. We reproduce the
challenged findings and conclusions for reference:
6. On October 17, 2012, Plaintiff timely served his Chapter 74 expert
report, a report by Dr. Martin Barrash, on Defendant Stephen
Konasiewicz by depositing it into the mail at the United States Post
Office at 809 Nueces Boulevard, Corpus Christi, TX 7849. 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 Plaintiff’s 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 Bierrenkott, 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)
12
(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’).
....
17. Plaintiff served his Chapter 74 report, by certified mail, on Defendant Dr.
Stephen Konasiewicz[] 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 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).
A. Is Stoner’s Affidavit Prima Facie Evidence of Service?
Finding of fact number seven recites that the “Stoner Affidavit and testimony are
prima facie evidence that Plaintiff’s 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.” However, oral
testimony is not among the items Texas Rule of Civil Procedure 21a specifies serve as
prima facie evidence of service. See TEX. R. CIV. P. 21a (providing that a certificate of
service, the return of the officer, or an affidavit of any person showing service is prima
facie evidence of service); see also Mathis, 166 S.W.3d at 745 (holding that counsel’s
oral testimony that documents were properly served was not prima facie proof of service).
If Lomas provided prima facie evidence of service, it must have come from Stoner’s
affidavit. See Mathis, 166 S.W.3d at 745. Stoner averred in her affidavit that she mailed
the reports to Dr. Konasiewicz at the three addresses on October 17, 2012, but she did
not assert or certify in the affidavit that she served the reports in compliance with Texas
Rule of Civil Procedure 21a. Stoner’s affidavit does not reflect that Dr. Konasiewicz was
served via certified or registered mail, that the envelopes were postpaid, or that the report
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was served on Dr. Konasiewicz by another approved method. Without such information,
Stoner’s affidavit does not “show[] service” compliant with Texas Rule of Civil Procedure
21a and thus does not rise to the level of prima facie evidence that Dr. Konasiewicz was
served on October 17, 2012. See TEX. R. CIV. P. 21a; see also Herrera v. Seton Nw.
Hosp., 212 S.W.3d 452, 459 (Tex. App.—Austin 2006, no pet.) (holding that service by
regular mail of an expert report did not comply with Texas Rule of Civil Procedure 21a
and, therefore, the plaintiff did not serve the expert report within the 120-day period);
Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.—Eastland 2005, pet. denied)
(same). The trial court abused its discretion to the extent that it held to the contrary.
However, the failure of the affidavit to rise to the level of prima facie proof does not mean
that the trial court was barred from finding that Lomas complied with Texas Rule of Civil
Procedure Rule 21a when he served the expert report on Dr. Konasiewicz. See Ne. Tex.
Staffing v. Ray, 330 S.W.3d 1, 5 (Tex. App.—Texarkana 2010, no pet.) (observing that
the absence of prima facie proof of service “does not prevent a party from establishing
that service was conducted” in compliance with Texas Rule of Civil Procedure 21a).
B. Did the Trial Court Abuse its Discretion by Finding that Lomas
Established Service?
Stoner asserted in her affidavit and testimony that she mailed the expert report via
certified mail in postpaid envelopes. Each envelope was addressed to one of the three
addresses for Dr. Konasiewicz mentioned in the order for substituted service. See TEX.
R. CIV. P. 21a. Stoner further testified that she deposited these envelopes in the outside
box of the Nueces Bay post office on October 17, 2012, the last day of the 120-day period.
To refute Stoner’s affidavit and testimony Dr. Konasiewicz introduced: (1) the certified
mail envelopes in question which retained visible tracking numbers; (2) track and confirm
14
reports from the USPS website reflecting that each certified letter was “accepted” in the
afternoon of October 18, 2012 at the post office in Portland, Texas; and (3) an affidavit
from Birrenkott, a USPS employee. Birrenkott’s affidavit reads in relevant part as follows:
I am currently employed by the United States Postal System. I have been
employed with the United States Postal System for 24 years. My current
position/title is Supervisor Customer Service Support. In making this
Affidavit, I have reviewed the following:
1) Exhibit A- Three (3) Affidavits of Nicole Porter Stoner;
2) Exhibit B- Transcript excerpt dated May 8, 2013;
3) Exhibit C- Correspondence with CMRRR Label #s: 7011 0470
0003 1906 3604; 7011 0470 0003 1906 3567 (Juan Garza);
7010 1870 0000 7687 9603; 7011 0470 0003 1906 3598
(Darlene Garza); 7010 1870 0000 7687 9610; (Pedro Lomas)
4) Exhibit D- USPS.com Track & Confirm internet and e-mail
responses to inquiries for the certified mail label #s referenced in
Exhibit C above."
Based upon my review, the five (5) certified mail items referenced in Exhibit
C were not deposited on October 17, 2012 in any mailbox at the main post
office located at 809 Nueces Bay Boulevard in Corpus Christi, Texas,
78469. From my review, the above-referenced certified mail items were
tendered into the U.S. Mail at the Portland, Texas post office branch inside
the post office on October 18, 2012 at 4:13 PM. The items would have had
to be handed by the customer to an employee of the Portland post office.
Any certified mail item deposited at the main post office would be recorded
and reported by the ‘Track and Confirm’ system as scanned and ‘accepted’
at the main post office at 809 Nueces Bay Boulevard, Corpus Christi, Texas.
The post office in Portland, Texas stays open until 4:30 PM.
We agree with Lomas that the trial court did not abuse its discretion by crediting
Stoner’s affidavit and testimony over Dr. Konasiewicz’s evidence. The trial court does
not err in resolving factual matters committed to its discretion unless the record shows
that it could reasonably have reached only one result. See Unifund CCR Partners, 299
S.W.3d at 97. Stoner’s affidavit and testimony and Birrenkott’s affidavit and the track and
15
confirm reports are evidence of the date Lomas served Dr. Konasiewicz with the expert
report. Although Dr. Konasiewicz’s rebuttal evidence is substantial, the trial court was not
required to credit it because Stoner’s affidavit and testimony is “some evidence” that
supports the contrary conclusion. See id. We hold that the trial court did not abuse its
discretion by crediting Stoner’s affidavit and testimony over the contrary evidence
introduced by Dr. Konasiewicz. See id.
Deferring to the trial court’s resolution of the parties’ factual disputes, as we must,
the facts as the trial court found them show that Lomas served Dr. Konasiewicz on
October 17, 2012 by certified mail postpaid, a means of service authorized by Texas Rule
of Civil Procedure 21a. Thus, service of the expert report on Dr. Konasiewicz was
complete on that date, the last day of the 120-day period to serve the expert report. See
TEX. R. CIV. P. 21a. We hold that conclusion of law number seventeen was not legally
erroneous. We overrule Dr. Konasiewicz’s issue.
IV. DR. ALEXANDER’S ISSUE
By his sole issue, Dr. Alexander argues that findings of fact numbers three, four,
five, and eight are supported by legally and factually insufficient evidence and that
conclusion of law number eighteen is legally erroneous. We agree. We reproduce the
challenged findings and conclusion for reference:
3. In his 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 his Original Petition nor did Plaintiff list Dr. Mathew
Alexander as a defendant in the style of the case for his Original Petition.
4. Plaintiff then filed his First Amended Petition on June 27, 2012.
Plaintiff’s First Amended Petition named Dr. Mathew Alexander
individually and as President [of] South Texas Brain and Spine Center
as a party to the suit; the First Amended Petition alleged facts and
causes of action against Dr. Mathew Alexander and listed him as a
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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.
....
8. Plaintiff timely served 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 his service of his expert report
via facsimile on October 17, 2012, was therefore timely.
....
18. Plaintiff served his Chapter 74 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 Plaintiff’s
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).
Dr. Alexander argues that the challenged findings of fact are supported by legally
and factually insufficient evidence because Lomas actually named him in the Original
Petition: the Original Petition correctly named him as Dr. Mathew Alexander in the section
listing the parties to the lawsuit and also correctly named him as the registered agent for
service of process of the South Texas Brain and Spine Center. Lomas responds that: (1)
the 120-day period runs from the first petition that “asserted a health care liability claim”
against Dr. Alexander, which was the First Amended Petition; (2) the common law
concept of misnomer does not apply in this context; and (3) we should apply the concept
of due diligence associated with Texas Rule of Civil Procedure 21a and hold that Lomas
timely served the expert report on Dr. Alexander.
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A. Did the Original Petition Misname Dr. Alexander?
Section 74.351 requires a plaintiff asserting health care liability claims to serve on
each “party” or that party’s attorney an expert report for each physician or health care
provider whose conduct is implicated by the lawsuit. TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351. In Zanchi, the Texas Supreme Court explained that a defendant becomes a
“party” for these purposes when they are named in a petition and not on the date they
receive service or otherwise appear in the lawsuit. 408 S.W.3d at 377–78. Dr. Alexander
asks us to apply the common-law doctrine of misnomer to address the legal effect of a
plaintiff suing the intended defendant but misnaming him in the original petition. See In
re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig.
proceeding) (per curiam) (discussing the concepts of misnomer and misidentification and
their effect on the running of the statute of limitations).
Lomas contests that the doctrine of misnomer is applicable, but we need not
resolve his dispute because we disagree that a misnomer occurred here. “A misnomer
occurs when a party misnames itself or another party, but the correct parties are involved.”
Id. While Lomas’s Original Petition misnamed Dr. Alexander in the style of the case and
in the section setting out the causes of action, it correctly named Dr. Mathew Alexander
in the list of parties. Moreover, the portion of the petition asserting causes of action
against “Dr. Lamar Alexander” always refers to him in connection with South Texas Brain
and Spine Center. There is no evidence that there was a “Dr. Lamar Alexander” at South
Texas Brain and Spine Center such that the Original Petition would not have given Dr.
Alexander advance notice that he was the subject of Lomas’s lawsuit. See Zanchi, 408
S.W.3d at 378 (observing that interpreting “party” as someone who is named in the lawsuit
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“gives the defendant advance notice of the pending lawsuit and the alleged conduct at
issue”).
Lomas attaches great significance to the misnaming of Dr. Alexander in the
Original Petition’s style of the case and in the assertions of the cause of action, but he
has presented no authority that those portions of a petition are particularly significant. 6
When determining who is being sued courts look at the pleading as a whole. See Nolan
v. Hughes, 349 S.W.3d 209, 212 (Tex. App.—Dallas 2011, no pet.); Boyattia v. Hinojosa,
18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet. denied). Viewing the Original Petition
as a whole, we find no support in the record for the trial court’s findings of fact that Dr.
Alexander was not named within it. We conclude that the trial court’s resolution of this
factual dispute in Lomas’ favor was an abuse of discretion. And because Dr. Alexander
was named within the Original Petition, the trial court’s conclusion of law that Lomas
served Dr. Alexander with the expert report within the 120-day period was legally
erroneous. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); Ogletree, 262 S.W.3d at
320.
B. Is There a Due Diligence Exception to the 120-day Deadline?
Lomas argues in the alternative that we should extend the concept of due diligence
to the context of expert reports and hold that Lomas’s service of Dr. Alexander was timely.
The Texas Supreme Court has explained that, in general, a timely-filed suit does not
affect the running of the statute of limitations unless the plaintiff exercises due diligence
6 Lomas cites a series of cases where this Court and others concluded that the 120-day period
began to run as to a particular defendant on the date the plaintiff filed its first petition naming that defendant.
E.g. Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 85 (Tex. App.—Corpus Christi 2010,
no pet.). Those cases are inapplicable because each involved the addition of a completely new defendant
in an amended petition. See id. None arose from facts where a plaintiff partially or wholly misnamed the
party it intended to sue.
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in issuing and serving citation. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per
curiam). If a plaintiff files suit before limitations expires but does not serve the defendant
until afterwards, “the date of service will relate back to the date of filing” if the plaintiff
exercised due diligence in effecting service. Id. Lomas argues that just as diligence in
the service of process tolls the running of the statute of limitations, diligence in serving an
expert report should also interrupt the running of the 120-day period to serve an expert
report. See Stockton, 336 S.W.3d at 616 (declining to decide whether due diligence could
interrupt the 120-day period because the facts of the case ruled out diligence as a matter
of law). Dr. Alexander responds that this argument is waived because Lomas did not
request findings of fact to support the judgment on this ground. See TEX. R. CIV. P. 299.
Dr. Alexander further argues that even if this argument is not waived, there is no due
diligence exception to the requirement that the plaintiff in a health care liability case serve
the expert report within 120 days.
We agree with Dr. Alexander that we may not sustain the trial court’s order on this
basis.7 When a trial court files findings of fact, these findings “shall form the basis of the
judgment upon all grounds of recovery and of defense embraced therein. The judgment
may not be supported upon appeal by a presumed finding upon any ground of recovery
or defense, no element of which has been included in the findings of fact.” TEX. R. CIV.
P. 299; see Nguyen v. Nguyen, 355 S.W.3d 82, 92 (Tex. App.—Houston [1st Dist.] 2011,
pet. denied). We may not extend an express finding of fact by implication to cover any
“independent grounds of defense” and courts “cannot extend [express findings] to cover
further independent issuable facts.” Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 919 (Tex.
7 We express no opinion on whether a plaintiff’s diligence in serving an expert report can excuse
untimely service of it.
20
App.—Dallas 2007, no pet.) (citing F. R. Hernandez Const. & Supply Co., Inc. v. Nat'l
Bank of Commerce of Brownsville, 578 S.W.2d 675, 679 (Tex. 1979)); see Nguyen, 355
S.W.3d at 92.
The Texas Supreme Court has explained that when assessing diligence:
the relevant inquiry is whether the plaintiff acted as an ordinarily prudent
person would have acted under the same or similar circumstances and was
diligent up until the time the defendant was served. Generally, the question
of the plaintiff's diligence in effecting service is one of fact, and is determined
by examining the time it took to secure citation, service, or both, and the
type of effort or lack of effort the plaintiff expended in procuring service.
Proulx, 235 S.W.3d at 216 (citations omitted). The trial court made no findings on whether
Lomas acted as an ordinary and prudent person would in the similar circumstances, the
time it took to serve Dr. Alexander, or the type of effort or lack of effort Lomas expended
in attempting to serve him. If anything, the trial court’s express findings rule out any
implied findings of due diligence because the concept of due diligence assumes that
service occurred after an applicable deadline. In this case, the trial court expressly found,
albeit incorrectly, that Lomas’s service was timely. Whether Lomas acted as an ordinarily
prudent person would have and whether sufficient time and effort to serve Dr. Alexander
were exercised are independent issuable facts that we may not imply from the trial court’s
express findings. See Nguyen, 355 S.W.3d at 92; Intec Sys., 230 S.W.3d at 919. We
reject Lomas’s arguments because we may not sustain the trial court’s order on the basis
of due diligence. See Williams v. Gillespie, 346 S.W.3d 727, 732–33 (Tex. App.—
Texarkana 2011, no pet.) (“We cannot affirm the trial court's judgment based on a theory
on which the trial court failed to make any of the necessary factual findings.”).
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C. Summary
In sum, we hold that: (1) the trial court abused its discretion by finding that Lomas
did not name Dr. Alexander in their Original Petition; (2) the 120-day deadline began to
run on the date of the Original Petition and as a result, conclusion of law number eighteen
is legally erroneous; and (3) the trial court’s judgment cannot be sustained on the grounds
of due diligence. We sustain Dr. Alexander’s sole issue.
V. CONCLUSION
We affirm the order of the trial court in Dr. Konasiewicz’s appeal (appellate cause
number 13-15-00062-CV). We reverse the order in Dr. Alexander’s appeal and remand
to the trial court with instructions to enter an order dismissing the underlying suit against
Dr. Alexander and to consider Dr. Alexander’s request for reasonable attorneys’ fees and
costs (appellate cause number 13-15-00063-CV).
NORA L. LONGORIA
Justice
Delivered and filed the
30th day of July, 2015.
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