                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00099-CV

Michael J. McQuade, D.D.S., M.S.           §    From the 16th District Court

                                           §    of Denton County (2011-10604-16)
v.
                                           §    December 6, 2012

Richard Brooks Berry                       §    Opinion by Chief Justice Livingston


                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s order. It is ordered that the trial court‘s

order denying appellant Michael J. McQuade, D.D.S., M.S.‘s motion to dismiss is

affirmed.

      It is further ordered that appellant Michael J. McQuade, D.D.S., M.S. shall

pay all of the costs of this appeal, for which let execution issue.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Chief Justice Terrie Livingston
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00099-CV


MICHAEL J. MCQUADE, D.D.S.,                                         APPELLANT
M.S.

                                        V.

RICHARD BROOKS BERRY                                                 APPELLEE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant Michael J. McQuade, D.D.S., M.S. appeals the trial court‘s order

denying his motion to dismiss appellee Richard Brooks Berry‘s health care

liability claim. In one issue, appellant contends that the trial court abused its

discretion by denying the motion to dismiss because appellee allegedly failed to

timely serve an expert report. We affirm.

      1
       See Tex. R. App. P. 47.4.


                                         2
                                 Background Facts

      On July 25, 2011, appellee filed an original petition that asserted a health

care liability claim against appellant. Appellee alleged that appellant had failed to

use ordinary care during dental surgery, that appellant had committed medical

battery by performing a procedure without appellee‘s consent, and that appellee

had suffered bodily injury.      Appellant filed an answer in which he generally

denied appellee‘s allegations.

      In December 2011, appellant filed a motion to dismiss appellee‘s suit,

alleging that appellee had failed to timely serve an expert report. 2 Specifically,

appellant argued that appellee was required to serve an expert report within 120

days after filing his petition, which was November 22, 2011, but that appellee did

not serve an expert report until November 23, 2011.            In his response to

appellant‘s motion to dismiss, appellee contended that he had timely served the

report because he had deposited it in the mail on the night of November 22.3

After holding a hearing on appellant‘s motion to dismiss and receiving arguments

from the parties, the trial court denied the motion, finding that appellee had

      2
       See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)–(b) (West 2011).
      3
        Appellee also stated that he faxed the expert report to appellant on the
night of November 22, but appellee conceded that this service was untimely
because it occurred after 5 p.m. See Tex. R. Civ. P. 21a. Appellant admits in his
brief that he received the facsimile at 10:45 p.m. on November 22, and we will
take this admission as true. See Tex. R. App. P. 38.1(g) (―The brief must state
concisely and without argument the facts pertinent to the issues or points
presented. In a civil case, the court will accept as true the facts stated unless
another party contradicts them.‖).


                                          3
served the expert report ―on [appellant] in compliance with Texas Rule of Civil

Procedure 21a on November 22, 2011.‖          Appellant brought this interlocutory

appeal.4

                             Timeliness of Service

      In his only issue, appellant argues that the trial court abused its discretion

by denying his motion to dismiss appellee‘s lawsuit because appellee failed to

timely serve an expert report. As we have explained,

             We review a trial court‘s denial of a motion to dismiss [a health
      care liability claim] for an abuse of discretion. . . .

            To determine whether a trial court abused its discretion, we
      must decide whether the trial court acted without reference to any
      guiding rules or principles; in other words, we must decide whether
      the act was arbitrary or unreasonable. Merely because a trial court
      may decide a matter within its discretion in a different manner than
      an appellate court would in a similar circumstance does not
      demonstrate that an abuse of discretion has occurred. A trial court
      does not abuse its discretion if it commits a ―mere error in
      judgement.‖

Foster v. Richardson, 303 S.W.3d 833, 837 (Tex. App.—Fort Worth 2009, no

pet.) (citations omitted); see Breiten v. Shatery, 365 S.W.3d 829, 830 (Tex.

App.—El Paso 2012, no pet.) (applying the abuse of discretion standard to a trial



      4
       See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012).
In the trial court, appellant also filed a motion to dismiss appellee‘s suit on the
ground that the expert report that appellee had served was substantively
inadequate. The record does not contain an order resolving appellant‘s motion to
dismiss based on the content of the expert report that appellee served. This
appeal concerns only appellant‘s motion to dismiss based on the allegedly
untimely service of the report.


                                         4
court‘s dismissal of a health care liability claim on the basis that service of an

expert report was untimely).

      In a health care liability claim,

      a claimant shall, not later than the 120th day after the date the
      original petition was filed, serve on each party or the party‘s attorney
      one or more expert reports, with a curriculum vitae of each expert
      listed in the report for each physician or health care provider against
      whom a liability claim is asserted.[5]

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Barber v. Mercer, 303 S.W.3d

786, 790 (Tex. App.—Fort Worth 2009, no pet.). If an expert report has not been

served within the 120-day period, the trial court must, upon a motion, enter an

order dismissing the plaintiff‘s suit with prejudice and awarding the defendant

reasonable attorney‘s fees and costs.         Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(b); see Breiten, 365 S.W.3d at 831 (―Trial courts have no discretion to

deny motions to dismiss or to grant extension if the statutory deadline is not

met.‖) (citing Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009)); Barber, 303

S.W.3d at 790.

      Courts have applied rule of civil procedure 21a to determine whether an

expert report has been timely and properly served under section 74.351. See

Tex. R. Civ. P. 21a; Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011)

      5
       Expert reports must provide a fair summary of ―the expert‘s opinions as of
the date of the report regarding applicable standards of care, the manner in
which the care rendered by the physician or health care provider failed to meet
the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.‖ Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);
Foster, 303 S.W.3d at 837.


                                          5
(recognizing that ―[s]everal courts have interpreted the Legislature‘s use of the

word ‗serve‘ to require compliance with Texas Rule of Civil Procedure 21a‖);

Breiten, 365 S.W.3d at 832–33; Herrera v. Seton Nw. Hosp., 212 S.W.3d 452,

459 (Tex. App.—Austin 2006, no pet.) (―[T]he legislature intended for claimants

to comply with Texas Rule of Civil Procedure 21a to fulfill the requirements of

section 74.351(a).‖); Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.—

Eastland 2005, pet. denied). Rule 21a states that notices and other documents

may be served, among other means, by certified mail.          Tex. R. Civ. P. 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.‖   Id.   When service is accomplished, a ―certificate by a party or an

attorney of record . . . showing service of a notice shall be prima facie evidence

of the fact of service.‖ Id.; see Lease Fin. Group, LLC v. Childers, 310 S.W.3d

120, 126 (Tex. App.—Fort Worth 2010, no pet.); see also Cliff v. Huggins, 724

S.W.2d 778, 780 (Tex. 1987) (stating that the presumption of proper service

under rule 21a, unless rebutted ―by an offer of proof of nonreceipt,‖ has the ―force

of a rule of law‖) (citing Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 455,

159 S.W.2d 854, 857 (1942)). Multiple courts of appeals have held, based on

rule 21a, that a certificate of service is prima facie evidence not only of the fact

that a document was served but also of the date of service included in the

certificate. See Kuntze v. Hall, Nos. 10-12-00087-CV, 10-12-00186-CV, 2012


                                         6
WL 5193226, at *7–8 (Tex. App.—Waco Oct. 18, 2012, no. pet. h.) (mem. op.);

Avila v. Rocha, No. 05-93-01850-CV, 1995 WL 22736, at *2–3 (Tex. App.—

Dallas Jan. 18, 1995, no writ) (not designated for publication); Shaw v. Nat’l Cnty.

Mut. Fire Ins. Co., 723 S.W.2d 236, 237 (Tex. App.—Houston [1st Dist.] 1986, no

writ).

         As an exhibit to his motion to dismiss, appellant attached a ―covering

document‖ that appellee had sent when serving the expert report. The covering

document contained a certificate of service that stated,

               The undersigned hereby certifies, in accordance with Texas
         Rule of Civil Procedure 21a, that on the 22nd day of November,
         2011, in accordance with Texas Rule of Civil Procedure 21, he
         served both (1) Dr. James D. Bates‘s expert report and (2) Dr.
         James D. Bates‘s curriculum vitae on . . . the attorney in charge for
         the Defendant, by Certified Mail . . . , Return Receipt Requested and
         Facsimile . . . .

Within his exhibits, appellant also included Dr. Bates‘s report, which was dated

―November 22, 2011,‖ and a copy of the certified mail envelope that had

contained the report, which had a postmark date of November 23, 2011.

         Appellee argues that the certificate of service, stating that the report was

served on November 22, provided prima facie evidence under rule 21a that the

report was placed in the mail on that day and therefore justified the trial court‘s

denial of appellant‘s motion to dismiss. Appellant contends, however, that the

trial court should have determined that service was untimely because the

envelope was postmarked on November 23, a postmark should be considered as

prima facie evidence of the date the envelope was mailed, and appellee‘s


                                           7
certificate of service cannot serve as prima facie evidence because it was

allegedly defective.

      First, we disagree that the certificate of service quoted above was

defective to the extent that it did not carry the presumption of proper service. To

contend that the certificate of service was defective, appellant relies on Kendrick,

in which the plaintiff had filed expert reports with the trial court and had delivered

the reports to the defendants only by leaving a copy in the district clerk‘s office

and by delivering a copy through first class mail. 171 S.W.3d at 700–01. After

concluding that rule 21a applied to the service of expert reports, the court in

Kendrick held that the methods of delivery attempted by the plaintiff were

unauthorized. Id. at 704. The court also stated that a certificate of service that

was filed by the plaintiff‘s counsel after the defendants filed motions to dismiss

did not raise a presumption of receipt because the certificate was not

contemporaneously executed ―on the filed instrument‖ as required by rule 21a.

Id. (citing Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)).

      As appellant recognizes, the facts in Kendrick are distinct from the facts in

this appeal. Appellant does not contend that the certificate of service in this case

was not executed ―on the filed instrument‖; instead, he argues that the certificate

was defective because it stated that appellee served the report by facsimile on

November 22, when by the effect of rule 21a, the service by facsimile was

deemed to have occurred on November 23. See Tex. R. Civ. P. 21a (―Service by

telephonic document transfer after 5:00 p.m. local time of the recipient shall be


                                          8
deemed served on the following day.‖).         But unlike rule 21a‘s expressed

requirement that the certificate of service be executed on the instrument, the rule

does not require a certificate of service to specify the method of service.

Approximately $14,980.00 v. State, 261 S.W.3d 182, 187 (Tex. App.—Houston

[14th Dist.] 2008, no pet.); Smith v. Mike Carlson Motor Co., 918 S.W.2d 669,

673 (Tex. App.—Fort Worth 1996, no writ). Thus, because rule 21a does not

require a statement about the method of service to be included in a certificate of

service, we conclude that the legally incorrect but superfluous statement in

appellee‘s certificate of service about the date of one of the two attempted

methods of service does not negate the prima facie presumption, created by the

certificate, of proper service by certified mail on November 22.

      Next, we reject appellant‘s contention that under the facts of this case, the

November 23 postmark overcame the prima facie presumption, created by the

certificate of service, that service by certified mail occurred on November 22.

Appellant cites a statute and a rule of civil procedure to contend that a postmark

provides prima facie evidence of the date of mailing. Both of these authorities,

however, relate to issues other than the proper and timely service of documents

on other parties. See Tex. Civ. Prac. & Rem. Code Ann. § 136.001 (West 2011)

(explaining that when registered mail is required by law, certified mail with return

receipt requested will suffice if the certified mail is validated with a postmark);

Tex. R. Civ. P. 5 (stating, in the context of filing a document with a clerk, that a




                                         9
legible postmark is prima facie evidence of the date of mailing).6 Also, neither of

these authorities purport to alter rule 21a‘s unambiguous language that service

by certified mail is ―complete upon deposit of the paper, enclosed in a postpaid,

properly addressed wrapper, in a post office or official depository.‖ Tex. R. Civ.

P. 21a; see also Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 718 n.7 (Tex.

App.—Corpus Christi 1998, pet. denied) (―Although the rules of procedure view

postmarks as prima facie evidence of the date of mailing for purposes of filing

documents with the court, . . . postmarks are not conclusive evidence of the date

an item was mailed in other contexts.‖).

      We recognize that the supreme court has held that the presumption of

service under rule 21a from a party‘s certificate of service ―vanishes when

opposing evidence is introduced that [a document] was not received.‖ In re E.A.,

287 S.W.3d 1, 5 (Tex. 2009) (emphasis added) (quoting Cliff, 724 S.W.2d at

780); see also Tex. R. Civ. P. 21a (―Nothing herein shall preclude any party from

offering proof that the notice or instrument was not received . . . .‖) (emphasis

added).   But it is undisputed that appellant received, through certified mail,

appellee‘s expert report, so the rule expressed in E.A. and in Cliff seems

inapplicable.   Moreover, we cannot conclude that the postmark in this case


      6
         Similarly, the cases cited by appellant, which relate to the ―mailbox rule‖
for filing documents, rather than rule 21a‘s service standards, are inapposite.
See, e.g., Alvarez v. Thomas, 172 S.W.3d 298, 301–02 (Tex. App.—Texarkana
2005, no pet.); Tex. Beef Cattle Co. v. Green, 862 S.W.2d 812, 813–14 (Tex.
App.—Beaumont 1993, order).


                                           10
outweighs the prima facie presumption of timely service because the postmark is

equally as consistent with a late-in-the-evening November 22 mailing as it is with

a November 23 mailing. In fact, when considering appellant‘s concession that

appellee delivered the expert report by facsimile late on the night of

November 22, which tends to show that appellee was attempting service of the

report at that time, the postmark may be more consistent with a November 22

mailing.   We conclude that at the most, under rule 21a, the November 23

postmark presented the trial court with an inference that possibly conflicted with

the prima facie presumption that appellee mailed the expert report on

November 22. A trial court does not abuse its discretion, however, when it bases

its decision on conflicting evidence and when some evidence of substantive and

probative character supports the decision. See H.E.B., L.L.C. v. Ardinger, 369

S.W.3d 496, 520 (Tex. App.—Fort Worth 2012, no pet.).

      Finally, although appellant cites four cases in which he asserts that courts

of appeals required plaintiffs in health care liability claims to present evidence of

timely service, none of the plaintiffs in those cases benefited from the prima facie

presumption created by a proper certificate of service that was executed on the

served instrument.    See Strobel v. Marlow, 341 S.W.3d 470, 476–77 (Tex.

App.—Dallas 2011, no pet.); Yilmaz v. McGregor, 265 S.W.3d 631, 636–40 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied); Patel v. Williams, No. 11-06-00254-

CV, 2007 WL 632989, at *3–4 (Tex. App.—Eastland Mar. 1, 2007, no pet.)

(mem. op.) (holding that when there was conflicting evidence about the date of


                                         11
service, the trial court did not abuse its discretion by concluding that the report

was timely served); Kendrick, 171 S.W.3d at 704.

      For all of these reasons, we hold that under rule 21a, appellee‘s certificate

of service constituted prima facie evidence that he served the expert report on

appellant on November 22, and that under the facts of this case, appellant‘s

evidence of a postmark of November 23 did not obligate the trial court to find that

the prima facie presumption had been overcome.7 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‖). Thus, we conclude that the

trial court did not abuse its discretion by finding that appellee served the expert

report on November 22 and by overruling appellant‘s motion to dismiss

appellee‘s health care liability claim.    See Foster, 303 S.W.3d at 837.       We

overrule appellant‘s only issue.


      7
        We note that the supreme court has stated that an ―inference established
prima facie . . . is overcome, together with the evidentiary facts tending to
establish it, only when the evidence tending to support the contrary inference is
conclusive, or so clear, positive and disinterested that it would be unreasonable
not to give effect to it as conclusive.‖ Greenwade, 138 Tex. at 457, 159 S.W.2d
at 858; see Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.—Houston [1st
Dist.] 2004, no pet.) (applying the standard expressed in Greenwade). We have
not found any cases in which the issue on appeal was whether the service (not
filing) of a document was timely and in which a court held that a postmark
required more weight than the prima facie presumption created by a certificate of
service. Cf. Hausmann v. Tex. Sav. & Loan Ass’n, 585 S.W.2d 796, 801 (Tex.
Civ. App.—El Paso 1979, writ ref‘d n.r.e.) (giving more weight to an affidavit
about the date of mailing than a postmark).


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                                  Conclusion

      Having overruled appellant‘s issue, we affirm the trial court‘s order denying

appellant‘s motion to dismiss.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: December 6, 2012




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