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

ACCEPTED
13-15-00062-cv
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/26/2015 2:21:21 PM
DORIAN RAMIREZ
CLERK
ORAL ARGUMENT REQUESTED FILED IN
13th COURT OF APPEALS
NO. 13-15-00062-CVCORPUS CHRISTI/EDINBURG, TEXAS
3/26/2015 2:21:21 PM
DORIAN E. RAMIREZ
Clerk
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
STEFAN KONASIEWICZ, M.D.,
Appellant,
v.
PEDRO LOMAS,
Appellee.
On Appeal from County Court at Law No. 3, Nueces County, Texas
Cause No. 2012-CCV-61204-3
(Hon. Deeanne Galvan)
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. 13-15-00062-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
STEFAN KONASIEWICZ, M.D.,
Appellant,
v.
PEDRO LOMAS,
Appellee.
On Appeal from County Court at Law No. 3, Nueces County, Texas
Cause No. 2012-CCV-61204-3
(Hon. Deeanne Galvan)
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: Stefan Konasiewicz, M.D.
Trial Counsel
for Appellant: W. Richard Wagner
Peter Cario
Wagner & Cario, L.L.P.
7705 Broadway Street
San Antonio, Texas 78209
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: Pedro Lomas
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, Texas 78401
ii
NO. 13-15-00062-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
STEFAN KONASIEWICZ, M.D.,
Appellant,
v.
PEDRO LOMAS,
Appellee.
On Appeal from County Court at Law No. 3, Nueces County, Texas
Cause No. 2012-CCV-61204-3
(Hon. Deeanne Galvan)
REQUEST FOR ORAL ARGUMENT
Appellant Stefan Konasiewicz, M.D. respectfully requests oral argument in
this case. The issues presented have not previously been considered in the context
of section 74.351 of the Texas Civil Practice and Remedies Code, and thus,
Appellant believes oral argument will aid 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..........................................1
C. Appellant’s Objections to Plaintiff’s Expert Report of J. Martin
Barrash ...............................................................................................2
D. July 17, 2013 Hearing on Motion to Dismiss ......................................3
E. Appellant’s Supplemental Brief in Support of Objections to
Appellee’s Expert Report Pursuant to CPRC § 74.351, et seq.............4
F. January 7, 2015 Hearing on Motion to Dismiss, Ruling, and
Appeal ................................................................................................4
SUMMARY OF THE ARGUMENT ......................................................................6
ARGUMENT AND AUTHORITIES .....................................................................8
I. Appellee Failed To Timely Serve Chapter 74 Expert Reports.......................8
A. Standards of Review ...........................................................................8
1. Section 74.351 Motions to Dismiss...........................................8
iv
2. Findings of Fact and Conclusions of Law ...............................10
B. Chapter 74 Expert Report Requirement ............................................11
C. Appellee Did Not Timely Serve Reports...........................................11
1. Dr. Konasiewicz’s Evidence Precludes Application of
Presumption of Timely Service...............................................14
2. Because Appellee Untimely Served the Report, the Trial
Court Had No Discretion But to Dismiss Appellee’s Suit
With Prejudice ........................................................................23
CONCLUSION AND PRAYER...........................................................................23
CERTIFICATE OF COMPLIANCE ....................................................................26
CERTIFICATE OF SERVICE..............................................................................27
APPENDIX TO BRIEF OF APPELLANT ...........................................................28
v
TABLE OF AUTHORITIES
Case Page(s)
BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2001).............................................................................. 10
Bohannon v. Winston,
238 S.W.3d 535 (Tex. App.—Beaumont 2007, no pet.) ................................... 21
Cameron County Drainage Dist. No. 5 v. Gonzales,
69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) .........................10, 22
Christus Spohn Health Sys. Corp. v. Lopez,
No. 13-13-00165-CV, 2014 WL 3542094
(Tex. App.—Corpus Christi July 17, 2014, no pet.) ......................................... 11
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .......................................................................10, 22
Cliff v. Huggins,
724 S.W.2d 778 (Tex. 1987) .......................................................................13, 20
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) .............................................................................. 9
Doyle v. Grady,
543 S.W.2d 893 (Tex. Civ. App.—Texarkana 1976, no writ) .......................... 18
Etheredge v. Hidden Valley Airpark Ass'n, Inc.,
169 S.W.3d 378 (Tex. App.—Fort Worth 2005, pet. denied) ........................... 14
Harris Methodist Fort Worth v. Ollie,
342 S.W.3d 525 (Tex. 2011) .............................................................................. 8
In re Arnold,
No. 13–12–00619–CV, 2012 WL 6085320
(Tex. App.—Corpus Christi, Nov. 30, 2012, no pet.)....................................... 19
In re Prudential Ins. Co. of Am.,
148 S.W.3d 124 (Tex. 2004) ............................................................................ 10
vi
Jaffe Aircraft Corp. v. Carr,
867 S.W.2d 27 (Tex.1993)............................................................................... 10
Larson v. Downing,
197 S.W.3d 303 (Tex. 2006) (per curiam).......................................................... 9
McAllen Police Officers Union v. Tamez,
81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism'd)........................ 10
Neiswender v. SLC Constr., LLC,
No. 13–11–00669–CV, 2012 WL 3046010
(Tex. App.—Corpus Christi July 26, 2012, pet. denied)........................18, 21, 22
Nexion Health at Beechnut, Inc. v. Paul,
335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.)................9, 22
Ogletree v. Matthews,
262 S.W.3d 316 (Tex. 2007) .......................................................................11, 23
Otero v. Alonzo,
No. 13-10-00304-CV, 2011 WL 765673
(Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) .....................................11, 23
Payton v. Ashton,
29 S.W.3d 896 (Tex. App.—Amarillo 2000, no pet.)..................................13, 21
Rosales v. H.E. Butt Grocery Co.,
905 S.W.2d 745 (Tex. App.—San Antonio 1995, writ denied) ........................ 19
Salinas v. Dimas,
310 S.W.3d 106 (Tex. App.—Corpus Christi 2010, pet. denied).................11, 12
Stockton v. Offenbach,
336 S.W.3d 610 (Tex. 2011) .............................................................................. 9
Texas Beef Cattle Co. v. Green,
862 S.W.2d 812 (Tex. App.—Beaumont 1993, no writ) .............................19, 21
Unifund CCR Partners v. Weaver,
262 S.W.3d 796 (Tex. 2008) ............................................................................ 13
vii
Univ. of Tex. Health Sci. Ctr. v. Gutierrez,
237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)................. 9
Waggoner v. Breland,
No. 01-10-00226-CV, 2011 WL 2732687
(Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) .................................. 14
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) .........................................................................9, 10
Wembley Inv. Co. v. Herrera,
11 S.W.3d 924 (Tex. 1999).............................................................................. 14
Statutes Page(s)
TEX. CIV. PRAC. & REM. CODE §§ 74.001-.507 ...................................................... x
TEX. CIV. PRAC. & REM. CODE § 74.351(a) ...............................................11, 22, 23
TEX. CIV. PRAC. & REM. CODE § 74.351(b).....................................................11, 23
TEX. CIV. PRAC. & REM. CODE § 74.351(c) .......................................................... 22
Rules Page(s)
TEX. R. APP. P. 39.1 .............................................................................................. iii
TEX. R. APP. P. 39. 7 ............................................................................................. iii
TEX. R. CIV. P. 21a........................................................................ 12, 13, 19, 20, 21
Other Authorities Page(s)
Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013 ........ xii
viii
NO. 13-15-00062-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
STEFAN KONASIEWICZ, M.D.,
Appellant,
v.
PEDRO LOMAS,
Appellee.
On Appeal from County Court at Law No. 3, Nueces County, Texas
Cause No. 2012-CCV-61204-3
(Hon. Deeanne Galvan)
BRIEF OF APPELLANT
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Appellant Stefan Konasiewicz, M.D. (“Dr. Konasiewicz” 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 overruling of Appellant’s objections as to the timeliness of the
service of the report, resulting in the denial of Appellant’s request for dismissal
based on the untimely service of the report, 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, Pedro Lomas (“Mr.
Lomas” or “Appellee”) filed this health care liability claim against Dr.
Konasiewicz, and various other Defendants,1 alleging that Defendants were
negligent in their care and treatment of Appellee. (CR 7-24).2 Appellee amended
his petition on June 27, 2012. (CR 27-44). On November 21, 2012, Appellant
filed Objections to Plaintiff’s Expert’s Report Pursuant to CPRC § 74.351 et seq.,
citing Appellee’s failure to timely serve the Expert Report of J. Martin Barrash.
(CR 140-44). On May 9, 2013, Appellee filed his Response in Opposition to
Appellant’s Objections to Chapter 74 Expert Report (CR 214-229). On July 17,
2013, the trial court held a hearing on Appellant’s objections and request for
dismissal, and after considering the arguments of counsel, took the matter under
advisement. (2 RR 43).
1
Defendant Christus Spohn Health System d/b/a Christus Spohn Hospital Corpus Christi –
Shoreline was dismissed from the case on July 24, 2014 (CR 247), Defendant Melissa Macias,
M.D. was dismissed on January 13, 2015, (CR 403), and Defendant South Texas Brain and Spine
Center was nonsuited on January 28, 2015. (CR 441).
2
Appellant will cite the clerk’s record as ([volume #] 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
On October 10, 2014, Appellant filed a Supplemental Brief in Support of
Objections to Plaintiff’s Expert’s Report Pursuant to CRPC § 74.351 et seq. (CR
249-329). Appellee filed a Response in Opposition to Appellant’s Supplemental
Brief on January 2, 2015 (CR 373-389), and on January 7, 2015, the trial court held
an additional hearing on Appellant’s objections and motion to dismiss; after
hearing the arguments of counsel, the court once again took the matter under
advisement. (3 RR 41). Following the hearing, the court signed an Order
overruling Appellant’s Objections to Plaintiff’s Expert’s Report Pursuant to CPRC
74.351 et seq. (CR 402). Appellant timely filed his Request for Findings of Fact
and Conclusions of Law (CR 423-27), and on February 17, 2015, the trial court
issued its Findings of Fact and Conclusions of Law (SCR 9-13). Appellant timely
filed his Notice of Accelerated Appeal. (CR 428-30).
xi
ISSUES PRESENTED
1. The trial court abused its discretion in denying Dr. Konasiewicz’s
request for dismissal with prejudice under section 74.351. This issue necessarily
includes the following sub-issues:
a. Chapter 74 expert reports must be served within 120 days
following the filing of the original petition.3 Appellee’s deadline for serving
a report was October 17, 2012. The trial court erred in concluding that
Appellee timely served an expert report by mailing it on October 17, 2012.
Dr. Konasiewicz’s evidence conclusively established that the report was
actually mailed on October 18, 2012. Even if Appellee’s evidence gave rise
to a presumption of timely service—and it did not—Dr. Konasiewicz
rebutted that presumption.
b. Findings of Fact numbers 6 and 7, and Conclusion of Law
number 17 are supported by legally and factually insufficient evidence, and
Conclusion of Law number 17 is legally erroneous, where Dr.
Konasiewicz’s evidence conclusively established that the section 74.351
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
expert report was actually mailed 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 his Original Petition asserting claims of
negligence and gross negligence against Dr. Konasiewicz. (CR 7-24). Appellee
alleged Dr. Konasiewicz performed back surgery on Appellee to repair damage
caused by a bulging, extrusion, and desiccation of several disks, as well as
moderately severe spinal stenosis and compression displacement. (CR 9).
Appellee alleged that Dr. Konasiewicz negligently severed or damaged one or
more nerves during the surgery, resulting in Appellee’s pain and other negative
impacts after the surgery, and that Dr. Konasiewicz did not respond to Appellee’s
post-surgical complaints. (CR 9-10).
B. Appellee’s Motion for Substituted Service
On September 19, 2012, Appellee filed a Motion for Substituted Service
Pursuant to T.R.C.P. 106(b), advising the trial court that Appellee’s First Amended
Petition and Request for Discovery had not been served on Appellant because the
process server/officer had been unable to locate Appellant, and moving the court to
authorize service either by (1) delivering a true copy of the citation and petition to
anyone over 16 years of age, 1400 Ocean Drive, Apt. 904C, Corpus Christi, TX
78402-2196; or (2) attaching a true copy of the citation and petition securely to the
front entry way at 1400 Ocean Drive, Apt. 904C, Corpus Christi, TX 78402-2196.
BRIEF OF APPELLANT PAGE 1
(CR 56-57). On October 2, 2012, the trial court signed an Order for Substituted
Service T.R.C.P. 106(b). (CR 454; 2 RR 42).
C. Appellant’s Objections to Plaintiff’s Expert Report of J. Martin
Barrash
On November 21, 2012, Appellant filed his Objections to Plaintiff’s
Expert’s Report Pursuant to CPRC § 74.351 et seq., arguing that Appellee served
the purported Chapter 74 expert report of J. Martin Barrash on November 3, 2012,
in an attempt to comply with § 74.351(a) and § 74.351(r)(6) of the Texas Civil
Practice and Remedies Code. (CR 140-41). Appellant urged that Appellee was
obligated to serve Appellant with his Chapter 74 expert report within 120 days
from the filing of Plaintiff’s Original Petition on June 19, 2012, or by October 17,
2012. (CR 141). Therefore, the 120 day report was untimely. (Id.). Additionally,
Appellant argued that Dr. Barrash’s report was deficient and failed to comply with
§ 74.351(r)(6), as it was conclusory as to the standard of care, breach of the
standard of case and causation. (CR 141-42). Appellee responded to Appellant’s
objections on May 9, 2013, in which he argued that he served Appellant at three
different addresses on October 17, 2012, which was the 120-day deadline. (CR
220). Appellee submitted an affidavit by Nicole Stoner, paralegal for Appellee’s
counsel, wherein Ms. Stoner stated she mailed a Chapter 74 expert report to Dr.
Konasiewicz at three different addresses on October 17th. (CR 227-29).
Additionally, Appellee argued that Texas Rule of Civil Procedure 21a, providing
BRIEF OF APPELLANT PAGE 2
rules for service by fax and other methods, does not strictly govern service
requirements for expert reports in a health care liability claim. (CR 218). Finally,
Appellee argued that Dr. Barrash’s 6-page report complied with the statutory
definition of an “expert report” because it included a fair summary of his expert
opinions of the standards of care, breach and causation. (CR 216-17).
D. July 17, 2013 Hearing on Motion to Dismiss
On July 17, 2013, the trial court held a hearing on Dr. Konasiewicz’s motion
to dismiss. (2 RR 13-44). Appellant argued that Appellee had Dr. Barrash’s report
in hand in May 2012, filed suit on June 2012, got an order for substituted service
on October 2, 2012, yet did not timely serve an expert report. (2 RR 13-15). In
response, Appellee offered the testimony of Nicole Porter Stoner. (2 RR 18-27).
Specifically, Ms. Stoner stated that on October 17, 2012, she mailed the expert
report. (2 RR 20-27). She testified that she affixed postage to the article at her
office. (2 RR 27). Ms Stoner stated that she mailed the items via certified mail,
postage-prepaid, and deposited them in the outside box at the Nueces Bay
Boulevard post office some time after 5:00 p.m. on October 17, 2012. (2 RR 26-
27). At the conclusion of the hearing, the trial court took the matter under
advisement. (2 RR 43-44).
BRIEF OF APPELLANT PAGE 3
E. Appellant’s Supplemental Brief in Support of Objections to
Appellee’s Expert Report Pursuant to CPRC § 74.351, et seq.
On October 10, 2014, Appellant filed a supplemental brief in support of his
Objections to Plaintiff’s Expert Report Pursuant to CPRC § 74.351 et seq., to
advise the trial court of the effect of recent supreme court jurisprudence, to provide
evidence that Appellee’s report was untimely, and to supplement his complaints
regarding the sufficiency of the reports. (CR 249-329). Specifically, Appellant
argued that evidence conclusively established that he was not timely served with
an expert report, as the United States Postal Service Track & Confirm results and
the affidavit of Tim Birrenkott, a 24-year employee of the postal service and
current Supervisor of Customer Service Support, proved that Appellee mailed the
report on October 18, 2012. (CR 254-58). Additionally, Appellant argued that at a
minimum, this evidence precluded any application of the presumption of timely
service under Rule 21a. (CR 256-57). Appellee responded to Appellant’s
supplemental brief on January 2, 2015, in which he argued service is complete
upon deposit in a post office or official depository, not upon the placement of a
postmark, and that he presented prima facie evidence of service of the report on
October 17, 2012. (CR 373-77).
F. January 7, 2015 Hearing on Motion to Dismiss, Ruling, and
Appeal
On January 7, 2015, the Hon. Deeanne Svoboda Galvan held a hearing on
Appellant’s Motion to Dismiss (3 RR 4-41). Appellant argued that he was entitled
BRIEF OF APPELLANT PAGE 4
to dismissal because Appellee failed to establish that he mailed Dr. Barrash’s
report on October 17, 2012, the 120th day following the filing of the Original
Petition. (3 RR 8-9). Appellant further argued that Appellee failed to meet his
burden to trigger any presumption of service on October 17th despite Ms. Stoner’s
affidavit and despite her testimony because the postal service interpreted the
meaning of the track and confirm sheets to establish that the certified letters
containing the expert report were actually mailed in Portland, Texas on October
18, 2012. (3 RR 7-12). Further, Appellant contended that even if the court gave
Appellee the benefit of the doubt and concluded that the evidence provided by the
Stoner affidavit and testimony at the first hearing was prima facie evidence to
support a presumption of service on October 17th, the 120th day, Appellant did not
receive the expert report until November 3, 2012, which was not within the three
days required under Rule 21(a) to support the presumption. (3 CR 11-12).
Appellee responded that Rule 21(a) states that service by mail or commercial
delivery shall be complete upon deposit of the document in the mail, and that it
matters not when the postal service gets around to stamping the mail. (3 RR 17-
20). Further, Appellee argued that the rules contemplate that the period starts the
moment that the mail is put in the box, and there is evidence in the case that the
paralegal took the mail and deposited it in the mailbox on the date as required –
October 17th – at the Nueces Bay location, and that Appellant’s motion to dismiss
BRIEF OF APPELLANT PAGE 5
should be denied. (Id.). Appellee urged that the portion of Rule 21a allowing a
party to rebut the presumption of service when the item is not received within three
days does not establish the date of mailing or allow the court to provide any relief
other than extending the time for the receiving party to respond. (3 RR 20-23).
Following the arguments of counsel, the trial court took the matter under
advisement (3 RR 41), and on January 9, 2015, signed an Order overruling the
Objections to Plaintiff’s Expert’s Report Pursuant to CRPC 74.351 et seq.
regarding timeliness of service of Appellant’s expert report, resulting in the denial
of Dr. Konasiewicz’s request for dismissal with prejudice through failure to timely
comply with section 74.351(a). (CR 402). Appellant requested findings of fact
and conclusions of law on January 28, 2015 (CR 423-27) and Appellee filed his
Proposed Findings of Fact and Conclusions of Law on January 28, 2015. (CR 434-
440). The trial court filed its findings of fact and conclusions of law on February
25, 2015. (SCR 9-13). Appellant timely filed his notice of appeal. (CR 428-30).
SUMMARY OF THE ARGUMENT
Appellee failed to timely serve a Chapter 74 expert report, entitling Dr.
Konasiewicz 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. Numerous
courts, including this Court, have applied Rule 21a to govern the service of
BRIEF OF APPELLANT PAGE 6
Chapter 74 reports. Appellee filed his Original Petition on June 19, 2012;
therefore, his expert report should have been served by October 17, 2012. But
Appellee did not serve a report by that date.
Dr. Konasiewicz provided conclusive evidence that the report was mailed on
October 18, 2012, rendering findings of fact numbers 6 and 7 and conclusion of
law number 17 supported by legally and factually insufficient evidence, as well as
rendering conclusion of law number 17 legally erroneous. The mailing labels,
United States Postal Service (“USPS”) Tracking results, and affidavit of 24-year
USPS supervisor Tim Birrenkott conclusively established that Appellee mailed the
item at 4:13 p.m. on October 18, 2012, at the Portland, Texas post office.
Therefore, under Rule 21a, Appellee’s service of the report was untimely.
Appellee’s evidence offered to prove that the report was mailed on October
17, 2012 is not prima facie evidence of the fact of service and cannot give rise to
any presumption of service on that date. The USPS Tracking results and Mr.
Birrenkott’s affidavit offered by Dr. Konasiewicz establish that the affidavit and
statements by Appellee’s counsel’s paralegal (that the report was mailed on
October 17, 2012 at the Nueces Bay Boulevard post office) were untrue. And even
if the paralegal’s affidavit gave rise to a presumption of service—which it did
not—Dr. Konasiewicz overcame that presumption with the aforementioned
evidence. Dr. Konasiewicz also rebutted any presumption of service because the
BRIEF OF APPELLANT PAGE 7
report was received 17 days after the alleged mailing date of October 17, 2012,
well past the three-day period contemplated in Rule 21a.
The trial court could come to only one conclusion based on the evidence
before it: that Appellee did not serve his Chapter 74 expert report by the October
17, 2012 deadline. The trial court erred in concluding otherwise, and abused its
discretion in overruling Dr. Konasiewicz’s objections to the timeliness of
Appellee’s expert report and denying his request for dismissal with prejudice. This
Court should reverse the trial court’s order, dismiss Appellee’s suit with prejudice,
and remand for a determination of Dr. Konasiewicz’s reasonable attorney’s fees
and costs of court.
ARGUMENT AND AUTHORITIES
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
BRIEF OF APPELLANT PAGE 8
determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011).
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 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
BRIEF OF APPELLANT PAGE 9
determining what the law is or applying the law to the facts, even when the law is
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 10
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 of filing 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 serve an expert report and CV as required, the trial court must, upon the motion
of the affected physician or health care provider,4 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. Appellee Did Not Timely Serve Reports
As noted, 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, 2011 WL 765673, at *3 (citing Salinas v.
4
It is undisputed that Dr. Konasiewicz sought dismissal with prejudice. (CR 140-41, 259-
60; 2 RR 15, 35; 3 RR 7-8, 11, 14).
BRIEF OF APPELLANT PAGE 11
Dimas, 310 S.W.3d 106, 108 (Tex. App.—Corpus Christi 2010, pet. denied)); see
TEX. R. CIV. P. 21a (1990).5 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.
Id. 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.
The party or attorney of record must certify to the court compliance with
Rule 21a in writing over signature and on the filed instrument. Id. A certificate by
a party or an attorney or record, or the affidavit of any person showing service of a
notice shall be prima facie evidence of the fact of service. Id. Thus, Rule 21a sets
up a presumption that when notice properly addressed and postage prepaid is
5
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. Further, at one time Appellee disputed
that Rule 21a applies to the service of Chapter 74 expert reports. (CR 218). However, it appears
that Appellee has acknowledged that Rule 21a applies. (See CR 374-77).
BRIEF OF APPELLANT PAGE 12
mailed, that the notice was duly received by the addressee. Cliff v. Huggins, 724
S.W.2d 778, 780 (Tex. 1987).
However, that presumption may be rebutted by proof of non-receipt:
Nothing herein shall preclude any party from offering proof that the
notice or instrument was not received, or, if service was by mail, that
it was not received within three days from the date of deposit in a post
office or official depository under the care and custody of the United
States Postal Service, and upon so finding, the court may extend the
time for taking the action required of such party or grant such other
relief as it deems just.
TEX. R. CIV. P. 21a; Cliff, 724 S.W.2d at 780. In the absence of evidence to the
contrary, the presumption has the force of a rule of law. Cliff, 724 S.W.2d at 780.
The presumption, however, is not “evidence” and it vanishes when opposing
evidence is introduced that the letter was not received. Id.; see Unifund CCR
Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (attorney’s affidavit
rebutted presumption of timely service of responses to requests for admissions).
Receipt is an element of service. Payton v. Ashton, 29 S.W.3d 896, 898
(Tex. App.—Amarillo 2000, no pet.). “[I]mplicit in the concept of service is the
need for the party upon whom an item is served to actually receive it.” Id. “If
receipt of the item was not implicitly required, then there would be no reason for
those who drafted Rule 21a to state that nothing precluded a party from
establishing non-receipt.” Id. (applying Rule 21a and holding that, while record
showed that requests for admissions were mailed via certified mail, return receipt
requested, the fact that those mailings were returned marked “unclaimed” negated
BRIEF OF APPELLANT PAGE 13
the presumption of receipt and provided the court with a basis to conclude that the
requests were not received); Waggoner v. Breland, No. 01-10-00226-CV, 2011
WL 2732687, at *2 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (U.S.
Postal Service letter stating that certified mail was returned “unclaimed” would be
sufficient to rebut the presumption of service); Etheredge v. Hidden Valley Airpark
Ass'n, Inc., 169 S.W.3d 378, 381-82 (Tex. App.—Fort Worth 2005, pet. denied)
(rejecting argument that proper service by mail under Rule 21a does not depend
upon actual receipt by the addressee and that all Rule 21a requires of a serving
party is to deposit the document in the mail; notice of hearing setting sent by
certified mail and returned “unclaimed” did not provide the notice required by
Rule 21a); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999)
(concluding that non-movant had not been served with motion of nonsuit when
presumption of receipt raised by certificate of service was rebutted by evidence of
non-receipt).
1. Dr. Konasiewicz’s Evidence Precludes Application of
Presumption of Timely Service
Here, because Dr. Konasiewicz conclusively established service of the
section 74.351 expert report on the 121st day following the filing of the Original
Petition, no presumption of timely service of Appellee’s expert reports arose.
Indeed, the evidence is both legally and factually insufficient to support the
BRIEF OF APPELLANT PAGE 14
findings of fact numbers 6 and 7, and conclusion of law number 17; further,
conclusion of law number 17 is legally erroneous.
In his initial objections, Dr. Konasiewicz asserted that Appellee had not
timely served Dr. Barrash’s report within the 120-day deadline: October 17, 2012.
(CR 140-41). Dr. Konasiewicz established he had not even received the report
until November 3, 2012. (Id.; CR 325-26).
Appellee responded, asserting that he served Dr. Konasiewicz with the
report on October 17, 2012. (CR 220). To support this assertion, Appellee
attached the affidavit of Nicole Stoner (the “Stoner Affidavit”), a paralegal for
Appellee’s counsel. (CR 227-29). In her affidavit, Ms. Stoner asserted that she
mailed the reports on October 17, 2012:
On October 17, out of an abundance of precaution, we mailed by
depositing, enclosed in a postpaid, properly addressed wrapper the
Expert Report to Dr. K, at the Nueces Bay Blvd official depository
under the care and custody of the United States Post Office the
Chapter 74 expert Report and mailed to in the above caption to Dr.
[Konasiewicz] at the following addresses:
a. Stefan Konasiewicz
1227 3rd St.
Corpus Christi, Texas 78404-2313
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.
BRIEF OF APPELLANT PAGE 15
El Paso, Texas 79920
(CR 228). Ms. Stoner later testified that she placed the packages containing Dr.
Barrash’s report in the mailbox outside of the Nueces Bay Boulevard post office
some time after 5:00 p.m. on October 17, 2012. (2 RR 26-27). She stated that she
affixed the postage beforehand using an office machine, rather than having it done
by the postal service. (2 RR 26-27).
By supplement, Dr. Konasiewicz provided conclusive evidence to the court
that Appellee did not mail Dr. Barrash’s report on October 17, 2012, as Appellee
claimed; rather, Appellee mailed the report on October 18, 2012. (CR 249-329).
Dr. Konasiewicz provided as exhibits the correspondence and mailing envelope
from Appellee’s counsel’s office to Dr. Konasiewicz containing Dr. Barrash’s
report and curriculum vitae. (CR 317-18). The mail label number 7010 1870 0000
7687 9610 corresponds to the article mailed to Dr. Konasiewicz. (Id.).
Dr. Konasiewicz also provided the results from an inquiry on the United
States Postal Service (“USPS”) Tracking web page corresponding to the above-
numbered article. (CR 323). The USPS Tracking results showed that CMRRR
No. 7010 1870 0000 7687 9610 was not actually received by the USPS until the
late-afternoon (4:13 p.m.) of October 18, 2012 (rather than October 17, 2012 after
5:00 p.m.) at the Portland, Texas post office (rather than the Nueces Bay
Boulevard location). (CR 323). This conclusively established that Appellee did not
BRIEF OF APPELLANT PAGE 16
deposit the articles at the Nueces Bay Boulevard post office on October 17, 2012
as claimed.
Dr. Konasiewicz also provided the affidavit of Tim Birrenkott, a 24-year
employee of the USPS and current Supervisor of Customer Service Support. (CR
289-90). Mr. Birrenkott’s affidavit conclusively established that the above-
referenced items were, in fact, not mailed on October 17, 2012 at the main post
office on Nueces Bay Boulevard. (Id.). Mr. Birrenkott reviewed Ms. Stoner’s
affidavits, the transcript of the May 8, 2013 hearing, the correspondence related to
the above mailing, and the USPS Track & Confirm results. (Id.).
Mr. Birrenkott swore that the certified mail items referenced above “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.” (CR 290) (emphasis
added). Instead, the 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.” (Id.) (emphasis added). Mr. Birrenkott further stated that if a
certified mail item had been deposited at the main post office—as Ms. Stoner
claimed—it would have been reported by the Track & Confirm system as
“accepted” at the main post office on Nueces Bay Boulevard in Corpus Christi.
(Id.).
BRIEF OF APPELLANT PAGE 17
The evidence conclusively established that Dr. Konasiewicz was not timely
served with expert reports. The deadline for Appellee to serve expert reports was
October 17, 2012. The USPS Track & Confirm results and Mr. Birrenkott’s
affidavit proved that Appellee mailed the reports on October 18, 2012 from
Portland, Texas. (CR 289-90, 323). See Neiswender v. SLC Constr., LLC, No. 13–
11–00669–CV, 2012 WL 3046010, at *3 (Tex. App.—Corpus Christi July 26,
2012, pet. denied) (affidavit by counsel’s legal assistant claiming mailing date of
September 3, 2010—prior to limitations deadline—was directly controverted by
affidavit of county postmaster, who affirmatively stated that item was mailed on
September 7th or 8th, 2010); see also Doyle v. Grady, 543 S.W.2d 893, 894 (Tex.
Civ. App.—Texarkana 1976, no writ) (affidavit of USPS employee sufficient to
establish date of mailing of brief where it was not clear whether postmark was
affixed by USPS or private postage meter).
At a minimum, the evidence precludes any application of the presumption of
timely service under Rule 21a. Ms. Stoner admitted the postage meter date of
October 17, 2012 was affixed at her office, rather than stamped by the USPS. (2
RR 27). The USPS Tracking results and Mr. Birrenkott’s affidavit establish that
Ms. Stoner’s statements are not accurate or true in the following respects:
 the date the report was purportedly mailed (October 17th, 2012) (it was
actually mailed October 18th 2012);
BRIEF OF APPELLANT PAGE 18
 that it was mailed sometime after 5:00 p.m. (it was actually mailed at 4:13
p.m.);
 that it was mailed at the Nueces Bay Boulevard post office (it was actually
mailed at the Portland, Texas post office);
 that it was placed in a receptacle outside the post office (it was actually
handed across the counter to an employee inside).
Compare (CR 228) and (2 RR 26-28) with (CR 289-90, 323). The Stoner Affidavit
(and Ms. Stoner’s testimony) are not prima facie evidence of service and thus
cannot even give rise to a presumption of timely service. See TEX. R. CIV. P. 21a;
Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 748 (Tex. App.—San Antonio
1995, writ denied) (“A prima facie case represents the minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is
true.”); In re Arnold, No. 13–12–00619–CV, 2012 WL 6085320, at *3 (Tex.
App.—Corpus Christi, Nov. 30, 2012, no pet.) (same); Texas Beef Cattle Co. v.
Green, 862 S.W.2d 812, 813 (Tex. App.—Beaumont 1993, no writ) (date stamped
by a private postage meter on the envelope containing the appellee’s brief was
insufficient to overcome prima facie evidence of the postal service postmark which
indicated that the brief had not been mailed before the filing deadline).
Appellee argued that “deposit” is dispositive, and that it matters not when
the USPS actually stamps the mail as “accepted.” (CR 374-77; 3 RR 17-20). But
BRIEF OF APPELLANT PAGE 19
as Dr. Konasiewicz explained, Appellee’s evidence does not give rise to any
reasonable inference that it was deposited when Ms. Stoner claimed. (3 RR 27-
28). Instead, the USPS Tracking results and Mr. Birrenkott’s affidavit
conclusively established that the report was not deposited at the Nueces Bay
Boulevard location on October 17, 2012, but instead was mailed from Portland,
Texas on October 18, 2012. (Id.; CR 289-90, 323).
Further, Dr. Konasiewicz did not receive the reports until November 3,
2012. (CR 326). The USPS Track & Confirm Results indicate that CMRRR label
number 7010 1870 0000 7687 9610 was delivered at 10:03 a.m. on November 3,
2012 in El Paso, Texas – long after the 3-day period provided for within Rule 21a.
(CR 323). And Dr. Konasiewicz swore that he did not receive the reports until
November 3, 2012. (CR 326). Even if Appellee established a presumption of “the
fact of service”—which Dr. Konasiewicz disputes—the evidence of non-receipt
within three days rebuts any presumption that the above-referenced articles were
mailed on October 17, 2012. See TEX. R. CIV. P. 21a (proof that instrument was
not received within three days rebuts presumption); Cliff, 724 S.W.2d at 780.
Appellee urged that the portion of Rule 21a allowing a party to rebut the
presumption of service when the item is not received within three days does not
establish the date of mailing or allow the court to provide any relief other than
extending the time for the receiving party to respond. (3 RR 20-23). But the rule
BRIEF OF APPELLANT PAGE 20
surely provides an alternative means to rebut any presumption that an item was
mailed when alleged. (See 3 RR 28-29). See also Neiswender v. SLC Constr.,
LLC, No. 13–11–00669–CV, 2012 WL 3046010, at *3 (Tex. App.—Corpus Christi
July 26, 2012, pet. denied) (affidavit by counsel’s legal assistant claiming mailing
date of September 3, 2010—prior to limitations deadline—was directly
controverted by affidavit of county postmaster, who affirmatively stated that item
was mailed on September 7th or 8th, 2010); Texas Beef Cattle, 862 S.W.2d at 813.
And if receipt is an element of service, Payton, 29 S.W.3d at 898, then surely a
party is entitled to show that, based on a lengthy delay in receiving an item, it was
likely not deposited when alleged. See Bohannon v. Winston, 238 S.W.3d 535, 538
(Tex. App.—Beaumont 2007, no pet.) (“[Rule 21a] . . . provides the trial court
with the discretion to establish a date of service based upon the actual receipt of
notice as opposed to the date of constructive delivery.”). Further, Rule 21a does
not speak only in terms of extending a deadline for the receiving party—here Dr.
Konasiewicz—to act. Rather, that rule also allows the court to grant such other
relief as it deems just. TEX. R. CIV. P. 21a. In this case, that relief is in the form of
an order with findings of fact and conclusions of law that the report was served on
October 18, 2012, to support the requested dismissal under Chapter 74 when a
claimant fails to timely serve an expert report. What the court cannot do is use
Rule 21a to extend the deadline for service of expert reports because that would
BRIEF OF APPELLANT PAGE 21
directly contravene and rewrite section 74.351. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(a), (c) (extensions may only be granted in two instances: (1) by
agreement of the parties, or (2) by the court to cure a deficiency in a timely-served
report); (3 RR 28).
Dr. Konasiewicz conclusively proved that Appellee did not mail Dr.
Barrash’s report on October 17, 2012. Appellee’s evidence was legally and
factually insufficient to even raise a presumption—or to support a finding or
conclusion—that the report was mailed on that day. See City of Keller, 168
S.W.3d at 810; Gonzales, 69 S.W.3d at 825.
Alternatively, if Appellee raised the presumption of service, Dr.
Konasiewicz’s evidence conclusively contradicts, overcomes, or rebuts that
presumption. See Neiswender, 2012 WL 3046010, at *3. The evidence shows that
the report was not mailed on October 17, 2012, the deadline for service of the
expert report.
Thus, the trial court erroneously concluded that service of the section 74.351
expert report was proper, Nexion Health, 335 S.W.3d at 718, and further, erred in
concluding that Appellee timely served Dr. Konasiewicz on October 17, 2012 with
the report of Dr. Barrash, by depositing it into the mail at the United States Post
Office at 809 Nueces Bay Boulevard, Corpus Christi, TX 78469. (See Findings of
Fact Nos. 6 & 7, and Conclusions of Law No. 17 (SCR 10, 12-13)).
BRIEF OF APPELLANT PAGE 22
2. Because Appellee Untimely Served the Report, the Trial Court
Had No Discretion But to Dismiss Appellee’s Suit With
Prejudice
Dr. Konasiewicz conclusively established service of the expert report on
October 18, 2012, the 121st day following the filing of the Original Petition.
Because Appellee did not timely serve an expert report, the trial court had no
discretion but to dismiss Appellee’s suit with prejudice. TEX. CIV. PRAC. & REM.
CODE § 74.351(a), (b); Ogletree, 262 S.W.3d at 319-20; Otero, 2011 WL 765673,
at *2-*5.
This Court should reverse the trial court’s order overruling Dr.
Konasiewicz’s objections regarding the timeliness of Appellee’s expert report,
dismiss Appellee’s suit with prejudice, and remand to the trial court for a
determination of Dr. Konasiewicz’s reasonable attorney’s fees and costs of court.
TEX. CIV. PRAC. & REM. CODE § 74.351(b).
CONCLUSION AND PRAYER
Appellee failed to timely serve a Chapter 74 report, entitling Dr.
Konasiewicz to dismissal under the statute. Appellee’s expert report was due
October 17, 2012. Dr. Konasiewicz provided conclusive evidence that Dr.
Barrash’s report was mailed on October 18, 2012. The mailing label, USPS
Tracking results, and affidavit of a 24-year USPS supervisor conclusively
established that Appellee mailed the item at 4:13 p.m. on October 18, 2012, by
BRIEF OF APPELLANT PAGE 23
taking it inside the Portland, Texas post office. Therefore, under Rule 21a,
Appellee’s service of the report was on October 18, 2012.
The Stoner Affidavit (and her testimony) are legally and factually
insufficient to constitute prima facie evidence of the fact of service or raise any
reasonable inference supporting any presumption of service on October 17, 2012.
The USPS Tracking results and Mr. Birrenkott’s affidavit wholly undermine and
conclusively disprove Ms. Stoner’s assertions that the report was mailed on
October 17, 2012 at the Nueces Bay Boulevard post office. And even if the Stoner
Affidavit gave rise to a presumption of service, Dr. Konasiewicz overcame that
presumption with the aforementioned evidence. Dr. Konasiewicz also rebutted any
presumption of service because the report was received 17 days after the alleged
mailing, well past the three-day period contemplated in Rule 21a.
The trial court could come to only one conclusion based on the evidence
before it: that Appellee did not timely serve his Chapter 74 expert report. The trial
court erred in concluding service was timely based on a date of service as October
17, 2012, and abused its discretion in overruling Dr. Konasiewicz’s objections to
the timeliness of Appellee’s expert report and request for dismissal with prejudice.
This Court should reverse the trial court’s order, dismiss Appellee’s suit with
prejudice, and remand for a determination of Dr. Konasiewicz’s reasonable
attorney’s fees and costs of court.
BRIEF OF APPELLANT PAGE 24
THEREFORE, Appellant Stefan Konasiewicz, M.D. respectfully prays this
Court reverse the trial court’s order overruling Dr. Konasiewicz’s objections
regarding the timeliness of Appellee’s expert report, 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 25
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
STEFAN KONASIEWICZ, M.D.
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
6,008 words.
/s/Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLANT PAGE 26
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 26th 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. W. Richard Wagner VIA EFILE
rwagner@wagnercario.com
Mr. Peter Cario
pcario@wagnercario.com
WAGNER CARIO, L.L. P.
7705 Broadway Street
San Antonio, TX 78209
Trial Counsel for Appellant
/s/Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLANT PAGE 27
NO. 13-15-00062-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
AT CORPUS CHRISTI, TEXAS
STEFAN KONASIEWICZ, M.D.,
Appellant,
v.
PEDRO LOMAS,
Appellee.
On Appeal from County Court at Law No. 3, Nueces County, Texas
Cause No. 2012-CCV-61204-3
(Hon. Deeanne Galvan)
APPENDIX TO BRIEF OF APPELLANT
In compliance with rule 38.1(j) of the Texas Rules of Appellate Procedure,
Appellant Stefan Konasiewicz, M.D., submits this Appendix to his Brief of
Appellant containing the following items:
Tab A: January 9, 2015 Order on Defendant Stefan Konasiewicz,
M.D.’s Objections to Plaintiff’s Expert’s Report Pursuant to
CPRC 74.351 et seq. (CR 402)
Tab B: February 25, 2015 Court’s Order on Findings of Fact and
Conclusions of Law (SCR 9-13)
D/922836v2
BRIEF OF APPELLANT PAGE 28
APPENDIX TAB “A”
CAUSE NO. 2012 CCV 61204-3
Pedro Lomas, § 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 DEFENDANT STEFAN KONASIEWICZ, M.D.'S OBJECTIONS TO
PLAINTIFF'S EXPERT'S REPORT PURSUANT TO CPRC 74.351 et seg.
After considering DEFENDANT STEFAN KONASIEWICZ, M.D.'S OBJECTIONS
TO PLAINTIFF'S EXPERT'S REPORT PURSUANT TO CPRC 74.351 et seq.,
regarding timeliness of service of Plaintiff's expert report, and Plaintiff's response
thereto, the Court OVERRRULES THE OBJECTIONS regarding the timeliness of
service of Plaintiff's expert report. The Court has not heard evidence on and at this time
is not ruling on Dr. Konasiewicz's objections regarding the sufficiency of the Plaintiff's
expert report.
SIGNED on ,
‘0 10,
PRESIDIN DGE
402
APPENDIX TAB “B”
Feb. 25. 2015 11:07AM No. 4221 P. 1/5
CAUSE NO. 2012 CCV 61204-3
Pedro Lomas, In the County Court
Plaintiff,
v.
Dr. Stefan Konasiewicz and Dr. at Law #3
Mathew Alexander, Individually and as
President of South Texas Brain and
Spine Center,
Defendants. Nueces County, Texas
tint-JOB
folzillikTAER6 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 his 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 Plaintiffs 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. Plaintiff's First
Amended Petition named Dr. Mathew Alexander individually and as President as South
Page 1
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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 his 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 fade 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 fade evidence that he
served the expert report on the dentist). The May 21, 2014, affidavit from Tim
Birrenkott, proffered by Defendant Dr. Stephen Konasiewicz, does not obligate a finding
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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 Plaintiffs 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 and as
President of South Texas Brain and Spine Center, and South Texas Brain and Spine
Center moved to dismiss Plaintiffs 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
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 his Response to Defendant Dr. Stephen
Konasiewicz's Objections.
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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 Brief in Support of their 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 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.
IL CONCLUSIONS OF LAW
17. Plaintiff served his Chapter 74 expert report, by certified mail, on Defendant Dr.
Stephen Konasiewicz's by depositing it into the mail on October 17, 2012, in
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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. Gerrie, 171 S.W.3d 698, 704
(Tex. App.—Eastland 2005, pet. denied) (emphasis added).
18. Plaintiff served his 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. App.—Fort Worth 2012, no pet).
Date: Ldtbiotvo
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