                                                                                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




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                                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


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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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