                                                                                 ACCEPTED
                                                                            13-15-00059-CV
                                                              THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                       3/19/2015 7:39:07 PM
                                                                          DORIAN RAMIREZ
                                                                                     CLERK




               ORAL ARGUMENT REQUESTED               FILED IN
                                             13th COURT OF APPEALS
                      NO.   13-15-00059-CVCORPUS CHRISTI/EDINBURG, TEXAS
                                              3/19/2015 7:39:07 PM
                                               DORIAN E. RAMIREZ
                                                      Clerk
                IN THE COURT OF APPEALS
              FOR THE THIRTEENTH DISTRICT
                AT CORPUS CHRISTI, TEXAS


MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF
       SOUTH TEXAS BRAIN AND SPINE CENTER,
                    Appellant,
                                v.
                      DARLENE GARZA,
                          Appellee.


 On Appeal from County Court at Law No. 1, Nueces County, Texas
                 Cause No. 2012-CCV-61201-1
                   (Hon. Robert J. Vargas)


                    BRIEF OF APPELLANT


                              Respectfully submitted,
                              COOPER & SCULLY, P.C.
                              DIANA L. FAUST
                              diana.faust@cooperscully.com
                              Texas Bar No. 00793717
                              R. BRENT COOPER
                              brent.cooper@cooperscully.com
                              Texas Bar No. 04783250
                              KYLE M. BURKE
                              kyle.burke@cooperscully.com
                              Texas Bar No. 24073089
                              900 Jackson Street, Suite 100
                              Dallas, Texas 75202
                              (214) 712-9500
                              (214) 712-9540 (fax)
                              ATTORNEYS FOR APPELLANT
                                NO. 13-15-00059-CV


                        IN THE COURT OF APPEALS
                      FOR THE THIRTEENTH DISTRICT
                        AT CORPUS CHRISTI, TEXAS


 MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
       OF SOUTH TEXAS BRAIN AND SPINE CENTER,
                      Appellant,
                                          v.
                                DARLENE GARZA,
                                    Appellee.


      On Appeal from County Court at Law No. 1, Nueces County, Texas
                      Cause No. 2012-CCV-61201-1
                        (Hon. Robert J. Vargas)


                     IDENTITY OF PARTIES AND COUNSEL


      In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure,

the following is a list of names and addresses of the parties to the trial court’s order

and their counsel:

Appellant:                       Mathew Alexander, M.D., Individually and as
                                 President of South Texas Brain and Spine Center

Trial Counsel
for Appellant:                   Richard C. Woolsey
                                 Woolsey & Associates, P.L.L.C.
                                 555 North Carancahua, Suite 1160
                                 Corpus Christi, Texas 78401-0841



                                           i
Appellate Counsel
for Appellant:          Diana L. Faust
                        R. Brent Cooper
                        Kyle M. Burke
                        Cooper & Scully, P.C.
                        900 Jackson Street, Suite 100
                        Dallas, Texas 75202

Appellee:               Darlene Garza

Trial and Appellate
Counsel for Appellee:   Robert C. Hilliard
                        Catherine D. Tobin
                        John B. Martinez
                        T. Christopher Pinedo
                        Rudy Gonzales, Jr.
                        Todd A. Hunter, Jr.
                        Marion M. Reilly
                        Hilliard Munoz Gonzales, L.L.P.
                        719 S. Shoreline Blvd., Suite 500
                        Corpus Christi, TX 78401




                                ii
                              NO. 13-15-00059-CV


                       IN THE COURT OF APPEALS
                     FOR THE THIRTEENTH DISTRICT
                       AT CORPUS CHRISTI, TEXAS


 MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
       OF SOUTH TEXAS BRAIN AND SPINE CENTER,
                      Appellant,
                                       v.
                              DARLENE GARZA,
                                  Appellee.


     On Appeal from County Court at Law No. 1, Nueces County, Texas
                     Cause No. 2012-CCV-61201-1
                       (Hon. Robert J. Vargas)


                     REQUEST FOR ORAL ARGUMENT


      Appellant Mathew Alexander, M.D., Individually and as President of South

Texas Brain and Spine Center respectfully requests oral argument in this case and

believes it will help the Court in evaluating the case and resolving this appeal.

TEX. R. APP. P. 39.1, 39.7.




                                       iii
                                      TABLE OF CONTENTS

                                                                                                                Page

IDENTITY OF PARTIES AND COUNSEL .......................................................... i

REQUEST FOR ORAL ARGUMENT ................................................................. iii

TABLE OF CONTENTS...................................................................................... iv

TABLE OF AUTHORITIES ................................................................................ vi

STATEMENT OF THE CASE ...............................................................................x

ISSUES PRESENTED......................................................................................... xii

STATEMENT OF FACTS .....................................................................................1

        A.      Appellee’s Allegations........................................................................1

        B.      Appellee’s Motion for Substituted Service..........................................2

        C.      Appellant’s Motions to Dismiss ..........................................................3

        D.      May 8, 2013 Hearing on Motion to Dismiss .......................................4

        E.      Appellant’s Supplemental Brief in Support of Second Motion to
                Dismiss ...............................................................................................5

        F.      January 6, 2015 Hearing on Motion to Dismiss, Ruling, and
                Appeal ................................................................................................6

SUMMARY OF THE ARGUMENT ......................................................................8

ARGUMENT AND AUTHORITIES ...................................................................10

I.      Appellee Failed To Timely Serve Chapter 74 Expert Reports.....................10

        A.      Standards of Review .........................................................................10

                1.       Section 74.351 Motions to Dismiss.........................................10


                                                         iv
               2.      Findings of Fact and Conclusions of Law ...............................12

       B.      Chapter 74 Expert Report Requirement ............................................13

       C.      Expert Report Not Timely Served.....................................................13

               1.      Appellee Named and Sued Dr. Mathew Alexander in
                       Original Petition .....................................................................14

               2.      Report Faxed After 5:00 p.m. on Last Day of 120-day
                       Period Is Untimely..................................................................23

CONCLUSION & PRAYER ................................................................................26

CERTIFICATE OF COMPLIANCE ....................................................................28

CERTIFICATE OF SERVICE..............................................................................29

APPENDIX TO BRIEF OF APPELLANT ...........................................................30




                                                     v
                                  TABLE OF AUTHORITIES

Case                                                                                              Page(s)

BMC Software Belgium, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2001).............................................................................. 12

Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC,
  372 S.W.3d 200 (Tex. App.—Texarkana 2012, no pet.)................................... 19

Cameron County Drainage Dist. No. 5 v. Gonzales,
  69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) .........................12, 22

Chilkewitz v. Hyson,
  22 S.W.3d 825 (Tex. 1999).............................................................................. 15

Christus Spohn Health Sys. Corp. v. Lopez,
  No. 13-13-00165-CV, 2014 WL 3542094
  (Tex. App.—Corpus Christi July 17, 2014, no pet.) ......................................... 23

City of Keller v. Wilson,
  168 S.W.3d 802 (Tex. 2005) .......................................................................12, 22

Cox v. Union Oil Co. of California,
  917 S.W.2d 524 (Tex. App.—Beaumont 1996, no writ) .................................. 15

Douglas v. KPH Consolidation, Inc.,
  No. 14-12-01016-CV, 2013 WL 5883852
  (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.)................................ 15

Downer v. Aquamarine Operators, Inc.,
  701 S.W.2d 238 (Tex. 1985) ............................................................................ 11

Enserch Corp. v. Parker,
  794 S.W.2d 2 (Tex. 1990)................................................................................ 14

Espeche v. Ritzell,
  123 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ............ 17

Harris Methodist Fort Worth v. Ollie,
  342 S.W.3d 525 (Tex. 2011) ............................................................................ 10


                                                     vi
In re Greater Houston Orthopaedic Specialists, Inc.,
   295 S.W.3d 323 (Tex. 2009) .......................................................................14, 21

In re Markowitz,
   No. 10-10-00116-CV, 2010 WL 2683067
   (Tex. App.—Waco July 7, 2010, no pet.)......................................................... 15

In re Prudential Ins. Co. of Am.,
   148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ............................................... 12

Jaffe Aircraft Corp. v. Carr,
  867 S.W.2d 27 (Tex.1993)............................................................................... 12

Kadish v. Pennington Assoc., L.P.,
  948 S.W.2d 301 (Tex. App.—Houston [1st Dist.] 1995, no writ)..................... 17

Krishnan v. Ramirez,
  42 S.W.3d 205 (Tex. App.—Corpus Christi 2001, pet. denied)........................ 17

Larson v. Downing,
  197 S.W.3d 303 (Tex. 2006) (per curiam)........................................................ 11

Lone Star HMA, L.P. v. Wheeler,
  292 S.W.3d 812 (Tex. App.—Dallas 2009, no pet.) ....................................21, 22

McAllen Police Officers Union v. Tamez,
 81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism'd ......................... 12

Nexion Health at Beechnut, Inc. v. Paul,
  335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.)........11, 24, 25

Ogletree v. Matthews,
  262 S.W.3d 316 (Tex. 2007) ............................................................................ 13

Otero v. Alonzo,
  No. 13-10-00304-CV, 2011 WL 765673
  (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) .....................................13, 23

Salinas v. Dimas,
  310 S.W.3d 106 (Tex. App.—Corpus Christi 2010, pet. denied)...................... 23



                                                    vii
State Bar of Tex. v. Heard,
  603 S.W.2d 829 (Tex.1980) ............................................................................. 17

Stockton v. Offenbach,
  336 S.W.3d 610 (Tex. 2011) .......................................................................10, 11

Thoyakulathu v. Brennan,
  192 S.W.3d 849 (Tex. App.—Texarkana 2006, no pet.)..............................24, 25

Union Pac. Corp. v. Legg,
  49 S.W.3d 72 (Tex. App.—Austin 2001, no pet.) ............................................ 18

Univ. of Tex. Health Sci. Ctr. v. Gutierrez,
  237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)............... 11

Walker v. Packer,
 827 S.W.2d 833 (Tex. 1992) .......................................................................11, 12

Zanchi v. Lane,
  408 S.W.3d 373, 375 (Tex. 2013) .................................................................... 18

Statutes                                                                                                   Page(s)

TEX. CIV. PRAC. & REM. CODE §§ 74.001-.057 (Vernon 2011) .............................. x

TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011) .......................13, 14, 23

TEX. CIV. PRAC. & REM. CODE § 74.351(b).....................................................13, 26

Rules                                                                                                      Page(s)

TEX. R. APP. P. 39.1 .............................................................................................. iii

TEX. R. APP. P. 39.7 .............................................................................................. iii

TEX. R. CIV. P. 21a (1990) ..............................................................................23, 24

TEX. R. CIV. P. 71 ................................................................................................ 17

Other Authorities                                                                                           Page(s)

Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013 ........ xii


                                                         viii
                             NO. 13-15-00059-CV


                      IN THE COURT OF APPEALS
                    FOR THE THIRTEENTH DISTRICT
                      AT CORPUS CHRISTI, TEXAS


  MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF
         SOUTH TEXAS BRAIN AND SPINE CENTER,
                      Appellant,
                                       v.
                             DARLENE GARZA,
                                 Appellee.


     On Appeal from County Court at Law No. 1, Nueces County, Texas
                     Cause No. 2012-CCV-61201-1
                       (Hon. Robert J. Vargas)


                           BRIEF OF APPELLANT


TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:

      Appellant Mathew Alexander, M.D., Individually and as President of South

Texas Brain and Spine Center (“Dr. Alexander” or “Appellant”) submits this Brief

of Appellant, in accordance with Rules 9.4 and 38 of the Texas Rules of Appellate

Procedure and all local rules of this Court. In support of this appeal from the

denial of Appellant’s Second Motion to Dismiss, Appellant respectfully alleges as

follows:


                                       ix
                             STATEMENT OF THE CASE

       This is a medical malpractice case governed by Chapter 74 of the Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE §§ 74.001-.507

(Vernon 2011) (“Chapter 74” or “TMLA”). On June 19, 2012, Darlene Garza

(“Ms. Garza” or “Appellee”) filed this health care liability claim against Dr.

Alexander, and various other Defendants,1 alleging that the Defendants were

negligent in their care and treatment of Appellee. (CR 7-24).2 Appellee amended

her petition on June 27, 2012. (CR 27-44). On October 31, 2012, Appellant filed

his Motion to Dismiss and Objections to Plaintiff’s Expert Report of J. Martin

Barrash, M.D. Pursuant to Tex. Civ. Prac. & Rem. Code § 74.351 (CR 85-148),

and on November 28, 2012, filed his Second Motion to Dismiss, alleging that

Appellee had not timely served her Chapter 74 expert report. (CR 170-198). On

May 1, 2013, Appellee filed her Response to Appellant’s Second Motion to

Dismiss (CR 209-216), and on May 3, 2012, filed her Amended Response to

Appellant’s Motion to Dismiss and Objections to Chapter 74 Expert Report (CR

220-231). On May 8, 2012, Appellant filed a Reply to Appellee’s Response to

1
       Defendant Christus Spohn Health System d/b/a Christus Spohn Hospital Corpus Christi –
Shoreline was dismissed from the case on July 30, 2014 (CR 377), Defendant Melissa Macias,
M.D. was dismissed on January 9, 2015 (CR 408), and Defendant South Texas Brain and Spine
Center was dismissed on February 6, 2015. (SCR 4).
2
        Appellant will cite the clerk’s record as (CR [page #]), the supplemental clerk’s record as
(SCR [page #]), the reporter’s record as ([volume #] RR [page #]), and the appendix as (Apx.
[Tab letter]).



                                                x
Second Motion to Dismiss. (CR 255-261). On May 8, 2013, the trial court held a

hearing on Appellant’s Motion to Dismiss, and after considering the arguments of

counsel, took the matter under advisement. (2 RR 54).

      On July 9, 2014, Appellant filed a Supplemental Brief in Support of Second

Motion to Dismiss (CR 329-69), arguing that Appellant established that Appellee

did not serve the expert report by October 17, 2012.       (CR 338).    Appellee

responded. (CR 395). On January 6, 2015, the trial court held a second hearing on

Appellant’s Second Motion to Dismiss, whereupon, after hearing the arguments of

counsel, the court once again took the matter under advisement. (3 RR 55).

Following the hearing, the district court signed an Order denying Appellant’s

Second Motion to Dismiss. (CR 407). Appellant timely filed his Request for

Findings of Fact and Conclusions of Law (CR 427-31), and on February 17, 2015,

the trial court issued its Findings of Fact and Conclusions of Law (SCR 16-20).

Appellant timely filed his Notice of Accelerated Appeal. (CR 434-36).




                                       xi
                                   ISSUES PRESENTED

       1.      The trial court abused its discretion in denying Dr. Alexander’s

Second Motion to Dismiss. This issue necessarily includes the following sub-

issues:

               a.      Chapter 74 expert reports must be served within 120 days of the

       original petition.3 Dr. Mathew Alexander was sued in the Original Petition

       filed June 19, 2012. He is described as a party and as the agent for South

       Texas Brain and Spine Center. Appellee may have misnamed him as “Dr.

       Lamar Alexander” at places in the petition, but the Original Petition and

       Appellee’s pre-suit notice letters make clear that she intended to sue Dr.

       Mathew Alexander. Thus, Appellee’s deadline for service of expert reports

       was October 17, 2012, the 120th day after Appellee filed the Original

       Petition. The trial court erred in concluding otherwise.

               b.      Chapter 74 expert reports faxed after 5:00 p.m. on the last day

       of the 120-day period are considered served the next day under Rule 21a and

       are thus untimely. It is undisputed that Appellee faxed the report after 5:00


3
        In 2013, the Legislature amended section 74.351(a) to require service of the expert report
within 120 days of the defendant’s answer. See Act of May 24, 2013, 83rd Leg., ch. 870 (H.B.
658), § 2, eff. Sept. 1, 2013. However, this suit was filed in June 2012 and is thus governed by
the prior version of the statute, which requires service of the report within 120 days following the
filing of the original petition. Unless otherwise noted, all references to Chapter 74 and its
individual sections refer to the 2011 version applicable to this suit.



                                                xii
p.m. on October 17, 2012; thus, the report was served on October 18,

2012—one day late. The trial court erroneously concluded that Appellee’s

expert report was timely served.

      c.     Findings of Fact numbers 3, 4, 5, and 8, and Conclusion of Law

number 18 are supported by legally and factually insufficient evidence, and

Conclusion of Law number 18 is legally erroneous, where examining the

entire contents of the Original Petition as well as the additional evidence

submitted conclusively established that Dr. Mathew Alexander was named

and sued in the Original Petition, such that the section 74.351 expert report

was actually served on October 18, 2012, the 121st day following the filing

of the Original Petition.




                                   xiii
                           STATEMENT OF FACTS

      A.    Appellee’s Allegations

      On June 19, 2012, Appellee filed her Original Petition asserting claims

related to injuries she alleged resulted from spinal surgery performed by co-

defendant Dr. Stefan Konasiewicz.       (CR 7-24).    Appellee brought claims of

negligence and gross negligence against Dr. Alexander, based on alleged improper

hiring of Dr. Konasiewicz. (CR 12-15). Further, Appellee asserted that when

Appellant hired Dr. Konasiewicz, he was, or with minimal diligence would have

been, aware of Dr. Konasiewicz’s long history of alleged malpractice.         (Id.).

Appellee alleged that Appellant had a legal duty to his patients to hire employees

who could be trusted to competently and safely perform the complicated and

delicate surgeries his patients relied on him for, and by either failing to properly

inquire into Dr. Konasiewicz’s qualifications or by ignoring the results of the

inquiry, Appellant breached his duty to hire competent employees. (CR 13-14).

Further, Appellee alleged that Appellant negligently misrepresented Dr.

Konasiewicz as a competent and reliable surgeon, and failed to properly inform his

patients of Dr. Konasiewicz’s history, and by hiring him and allowing him to

perform surgery on Appellee, Appellant violated the trust. (Id.).




BRIEF OF APPELLANT                                                           PAGE 1
      B.    Appellee’s Motion for Substituted Service

      On August 29, 2012, Appellee filed a TRCP 106 Motion for Substituted

Service advising the trial court that Appellee’s First Amended Petition and Request

for Discovery had not been delivered on Appellant because the process server had

been unable to locate Appellant at his place of work located at 1227 3rd Street,

Corpus Christi, Texas 78404, and moving the court to authorize substituted

service. (CR 48-50). On September 18, 2012, the trial court signed a TRCP 106

Order for Substituted Service, which ordered:

      On the Motion presented and the supporting affidavit attached from
      the Process Server stating the Defendant Mathew Alexander subjects
      usual place of work located at 1227 3rd Street, Corpus Christi 78404
      can be found and stating specifically the facts showing that service
      has been attempted under T.R.C.P. 106(b) and service at the address
      listed above will be reasonably effective to give notice of this suit by
      delivering a true copy of the documents:

      Citation and Plaintiff’s First Amended Petition and Request for
      Discovery

      attached to anyone over 16 years of age or by attaching a true copy of
      the citation and petition securely to the front door entry way. If the
      property is protected by a fence, by attaching to the entry gate or to
      the Security Guard if the gate is staffed at the address listed above,
      which will be reasonably effective to give notice of this suit.

      It is further ordered that the return of the Process Service be endorsed
      on or attached to the citation, stating when and how the citation was
      delivered, and be signed by the Process Server, also the Process
      Server is to make due return in accordance with the Texas Rules of
      Civil Procedure Rule 107. That any future service on this Defendant
      in this cause may be accomplished in the same manner.



BRIEF OF APPELLANT                                                               PAGE 2
(CR 55).

       C.    Appellant’s Motions to Dismiss

       On October 31, 2012, Appellant filed his Motion to Dismiss and Objections

to the Expert Report of J. Martin Barrash, M.D. Pursuant to Tex. Civ. Prac. &

Rem. Code § 74.351., arguing that Appellee’s claim against Appellant should be

dismissed because the required 120-day expert report of J. Martin Barrash, M.D.

failed to correctly address the elements required by section 74.351. (CR 85-101).

       Appellant filed his Second Motion to Dismiss on November 28, 2012, and

argued that Appellee’s tender of the expert report of Dr. Barrash by facsimile after

5:00 p.m. on October 17, 2012 meant it was served on October 18, 2012, making it

one day late. (CR 170-98). Appellant attached a number of exhibits establishing

that the report was faxed around 6:30 p.m. on October 17, 2012. (CR 175-98).

Therefore, under Section 74.351(b), the court was required to dismiss Appellee’s

claims against Appellant and award reasonable attorney’s fees and costs. (CR 170-

71).

       Appellee responded to Appellant’s Second Motion to Dismiss and

Objections on May 1, 2013, in which she argued that the first pleading to assert

claims against Defendant Dr. Mathew Alexander was Plaintiff’s First Amended

Petition filed on June 27, 2012. (CR 209). Further, Appellee argued that nothing

contained in section 74.451(a)’s 120-day deadline required her to serve an expert



BRIEF OF APPELLANT                                                           PAGE 3
report on Dr. Alexander before she made him a party to the suit. (CR 210-12).

Appellant filed a Reply to Appellee’s Response to Second Motion to Dismiss,

asserting that Appellee sued Dr. Mathew Alexander in the Original Petition, that

the case was one of misnomer, not misidentification, and that even if

misidentification were involved, there is no exception for failing to timely serve an

expert report. (CR 255-261).

      D.     May 8, 2013 Hearing on Motion to Dismiss

      On May 8, 2013, the trial court held a hearing on the Dr. Alexander’s motion

to dismiss. (2 RR 5-56). Appellant argued that while Appellee’s June 19, 2012

Original Petition addressed “Dr. Lamar Alexander” in the style of the case,

Appellant’s name was Mathew Alexander, that he is the president of the South

Texas Brain and Spine Institute, and Appellee requested service on Appellant in

the petition. (2 RR 24). Further, in the “Parties” section of the Original Petition,

Appellee pleaded:

      Defendant Dr. Mathew Alexander is a resident of the state of Texas.
      He can be served through his Attorneys, McKibben, Woolsey, and
      Villareal, LLP at 555 N. Carancahua St. #1100 Corpus Christi, TX
      78401.

(CR 8; 2 RR 24) (emphasis added). And in paragraph 2.5, the Original Petition

stated that South Texas Brain and Spine Center is a professional association

incorporated in the State of Texas, and “can be served through its registered agent,

Dr. Mathew Alexander, at 1227 3rd St., Corpus Christi, Texas 78404-2313.” (Id.)


BRIEF OF APPELLANT                                                            PAGE 4
(emphasis added). Appellant argued there was no question that Appellee knew

who she was suing, and that it was a case of misnomer, and not a misidentification

issue. (2 RR 25). Appellant argued that Appellee was to serve the expert report

within 120 days; however, Appellee served the report on the 121st day and

therefore, it was mandatory that the court dismiss the case. (2 RR 25). Appellee

argued that due diligence should apply such that the report was timely. (2 RR 27-

29). Appellee also urged that Appellant was served with the Chapter 74 expert

report within 120 days of naming Mathew Alexander in the amended petition. (2

RR 29). At the conclusion of the hearing, the trial court indicated it would take the

matter under advisement. (2 RR 54).

      E.     Appellant’s Supplemental Brief in Support of Second Motion to
             Dismiss

      On July 9, 2014, Appellant filed a Supplemental Brief in Support of Second

Motion to Dismiss. (CR 329-369). Appellant argued that Appellee’s expert report

and curriculum vitae were due to be served by October 17, 2012, 120 days from

the filing of the Original Petition on June 19, 2012. (CR 332). Additionally, even

though Appellee asserted that the expert report was not due to be served until 120

days after she filed the First Amended Original Petition on June 27, 2012, she

knew who she sued and did so in the Original Petition. (Id.). Appellant argued that

Appellee may have misnamed a party—calling Appellant Dr. “Lamar Alexander”

in several places in the Original Petition—but the correct parties were involved.


BRIEF OF APPELLANT                                                            PAGE 5
(Id.). Appellant also provided as evidence Appellee’s pre-suit notice letter and

authorization forms for release of health information—sent in an attempt to comply

with section 74.051-052 of the Civil Practice and Remedies Code—which clearly

illustrated that Appellee intended to sue Appellant. (CR 333, 342-47). And,

because Appellee served a report by facsimile at approximately 6:30 p.m. on the

final day for serving reports, under Rule 21a, Appellee served her report one day

late. (CR 336-38).

      Appellee responded, arguing that October 25, 2012 was the 120th day after

the pleading first naming Dr. Mathew Alexander—Plaintiff’s First Amended

Petition dated June 27, 2012; therefore, her expert report was timely served on

October 17, 2012 at 6:28 p.m. (CR 397). Additionally, Appellee argued that due

diligence concepts should apply such that her report was timely even if served after

5:00 p.m. (CR 398-400).

      F.    January 6, 2015 Hearing on Motion to Dismiss, Ruling, and
            Appeal

      On January 6, 2015, the Hon. Robert J. Vargas held a hearing on Appellant’s

Second Motion to Dismiss (3 RR 5-57). Appellant argued that the correct party in

the case, Dr. Mathew Alexander, had been sued, as he was named as a party in

paragraphs 2.4 and 2.5 of the June 19, 2012 Original Petition; therefore, Appellee’s

expert report was due to be served by October 17, 2012. (3 RR 45). Appellee

served her expert report to Appellant on October 17, 2012, at 6:29 p.m. to 6:32


BRIEF OF APPELLANT                                                           PAGE 6
p.m.; therefore, Appellant argued that under Rule 21a, if a report is received via

facsimile after 5:00 p.m., it is deemed served the next day, and the court should

dismiss the case with prejudice. (3 RR 46, 48). Appellee argued that review of

the factual allegations and the claims or causes of action, “Lamar Alexander” was

accused of medical negligence, and Appellee saw her mistake and corrected it

through an amended petition, which was filed on June 27, 2012. (3 RR 49).

Additionally, Appellee argued that Mathew Alexander was never served with the

original petition, that he received the first amended petition, which correctly

asserted Dr. Mathew Alexander. (3 RR 50). Appellant argued that whether Dr.

Mathew Alexander was served with the Original Petition is not dispositive; he was

named as a party defendant and sued in that petition. (3 RR 52-53).

      Following the arguments of counsel, the trial court took the matter under

advisement (3 RR 55), and on January 8, 2015, signed an Order denying

Appellant’s Second Motion to Dismiss. (CR 407). Appellant requested findings

of fact and conclusions of law on January 16, 2015 (CR 427-31), and Appellee

filed her Proposed Findings of Fact and Conclusions of Law on January 28, 2015.

(CR 443-49). The trial court filed its findings of fact and conclusions of law on

January 17, 2015. (SCR 16-20). Appellant timely filed his notice of appeal. (CR

434-36).




BRIEF OF APPELLANT                                                         PAGE 7
                      SUMMARY OF THE ARGUMENT

      Appellee failed to timely serve a Chapter 74 expert report, entitling

Appellant to dismissal under the statute. This is a health care liability claim

governed by Chapter 74 of the Texas Civil Practice and Remedies Code, which

requires the claimant to serve an expert report and curriculum vitae upon the

defendant within 120 days following the filing of the Original Petition. Rule 21a

governs the service of Chapter 74 reports. Appellee filed her Original Petition on

June 19, 2012; therefore, her expert report should have been served by October 17,

2012. But Appellee did not serve a report by that date.

      The record established that Appellee sued Dr. Mathew Alexander in the

Original Petition filed on June 19, 2012, even if Appellee mistakenly named him

“Dr. Lamar Alexander” within various allegations within that pleading.

Examining the Original Petition, Appellee named Dr. Mathew Alexander as a party

to the suit, listed his attorneys for service of process, and alleged that Dr. Mathew

Alexander was the agent for a co-defendant, South Texas Brain and Spine Center.

Appellee also sent pre-suit notice letters specifically naming and describing Dr.

Mathew Alexander and the claims Appellee intended to pursue against him.

Appellee intended to sue Dr. Mathew Alexander, the president of South Texas

Brain and Spine Center. Appellee’s use of “Dr. Lamar Alexander” is nothing more

than a misnomer, which does not affect the date the Original Petition was filed.



BRIEF OF APPELLANT                                                            PAGE 8
Because Appellee sued Dr. Mathew Alexander in the Original Petition, Appellee’s

deadline for service of Chapter 74 expert reports was October 17, 2012, rendering

findings of fact numbers 3, 4, 5, and 8 and conclusion of law number 18 supported

by legally and factually insufficient evidence, as well as rendering conclusion of

law number 18 legally erroneous.

         It is undisputed that Appellee did not serve an expert report by October 17,

2012. Appellee faxed a report around 6:30 p.m. on that date, but under Rule 21a,

service by fax after 5:00 p.m. is considered served the next day, here October 18,

2012. Texas courts hold that a Chapter 74 report faxed after 5:00 p.m. on the last

day of the 120-day period is late, requiring dismissal under the statute. Appellee

served the expert report one day late.

         Therefore, the trial court erroneously concluded that the first time Dr.

Mathew Alexander was named and sued as a defendant was June 27, 2012, with

the filing of the First Amended Petition, such that service of the expert report by

fax on October 18, 2012 was timely. The trial court abused its discretion in

denying Appellant’s Second Motion to Dismiss. This Court should reverse the

trial court’s order, dismiss Appellee’s suit with prejudice, and remand to the trial

court for determination of Appellant’s reasonable attorney’s fees and costs of

court.




BRIEF OF APPELLANT                                                            PAGE 9
                      ARGUMENT AND AUTHORITIES

      The trial court abused its discretion in denying Appellant’s Second Motion

to Dismiss.    Appellee filed her Original Petition asserting claims against Dr.

Mathew Alexander and South Texas Brain and Spine Center on June 19, 2012.

Appellee’s deadline for serving Chapter 74 reports was October 17, 2012. There is

no dispute that she did not serve expert reports by that date. Thus, Appellant was

entitled to dismissal under the statute. This Court should reverse the trial court’s

order, dismiss Appellee’s suit with prejudice, and remand for a determination of

Appellant’s reasonable attorney’s fees and costs of court.

I.    Appellee Failed To Timely Serve Chapter 74 Expert Reports

      A.      Standards of Review

              1.   Section 74.351 Motions to Dismiss

      A trial court’s determination of whether to dismiss a case for failure to

timely serve an expert report pursuant to section 74.351 of Texas Civil Practice

and Remedies Code generally is reviewed for abuse of discretion. See Harris

Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (interpreting

chapter 74 of the Texas Civil Practice and Remedies Code). Under an abuse of

discretion standard, the appellate court defers to the trial court’s factual

determinations if they are supported by evidence, but reviews the trial court's legal

determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011).



BRIEF OF APPELLANT                                                           PAGE 10
To the extent an issue presented requires statutory interpretation or a determination

of whether Chapter 74 applies to a claim, the issue is a question of law reviewed de

novo. See id. Further, though an appellate court reviews a trial court's ruling on a

motion to dismiss for failure to comply with section 74.351 for an abuse of

discretion, whether proper service has been made under Rule 21a is a question of

law reviewed de novo. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716,

718 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Univ. of Tex. Health

Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007,

pet. denied)).

      A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles. Larson v. Downing,

197 S.W.3d 303, 304–05 (Tex. 2006) (per curiam). When reviewing the trial

court’s decision for an abuse of discretion, an appellate court may not substitute its

judgment for that of the trial court with respect to resolution of factual issues or

matters committed to the trial court's discretion.      See Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992); see also Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 242 (Tex. 1985). However, a reviewing court is less deferential

when reviewing the trial court’s determination of the legal principles controlling its

ruling. See Walker, 827 S.W.2d at 840.         A trial court has no discretion in

determining what the law is or applying the law to the facts, even when the law is



BRIEF OF APPELLANT                                                            PAGE 11
unsettled. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)

(orig. proceeding). A clear failure by the trial court to analyze or apply the law

correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840.

             2.     Findings of Fact and Conclusions of Law

      Courts of appeals review fact findings for both legal and factual sufficiency.

See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2001).

Conclusions of law are reviewed de novo. McAllen Police Officers Union v.

Tamez, 81 S.W.3d 401, 404 (Tex. App.—Corpus Christi 2002, pet. dism'd).

      An appellate court will sustain a no-evidence complaint if the record shows:

(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital

fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

      In reviewing factual sufficiency, the appellate court considers and weighs all

the evidence in the record to determine whether the evidence supporting a fact

finding is so weak or the finding so contrary to the overwhelming weight of the

evidence that the finding should be set aside. See Cameron County Drainage Dist.

No. 5 v. Gonzales, 69 S.W.3d 820, 825 (Tex. App.—Corpus Christi 2002, no pet.)

(citing Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993)).



BRIEF OF APPELLANT                                                             PAGE 12
      B.    Chapter 74 Expert Report Requirement

      Section 74.351(a) of the Texas Civil Practice and Remedies Code provides

that any person bringing a suit asserting a health care liability claim must, within

120 days following the filing of the original petition, serve an expert report and

curriculum vitae for each physician or health care provider against whom the claim

is asserted. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011). If the

claimant does not provide an expert report and CV as required, the trial court must,

upon the motion of the affected physician or health care provider, dismiss the

claim with prejudice and award reasonable attorney’s fees and costs of court

incurred by the physician or health care provider. Id. § 74.351(b); See Ogletree v.

Matthews, 262 S.W.3d 316, 319-20 (Tex. 2007); Otero v. Alonzo, No. 13-10-

00304-CV, 2011 WL 765673, at *2-*5 (Tex. App.—Corpus Christi Mar. 3, 2011,

no pet.).

      C.    Expert Report Not Timely Served

      Appellee did not timely serve an expert report on Appellant by October 17,

2012, the 120th day following the date Appellee filed her Original Petition.

Appellee faxed Dr. Barrash’s report after 5:00 p.m. on October 17th; thus, under

Rule 21a, as discussed below, the report was served the following day and was




BRIEF OF APPELLANT                                                          PAGE 13
late. Appellee has asserted that she did not sue Dr. Mathew Alexander in the

Original Petition but in a later amended petition, giving Appellee until October 25,

2012 to serve the report. But as explained below, Appellee sued Dr. Mathew

Alexander with the Original Petition and failed to timely serve a report by the

October 17, 2012 deadline.

             1.     Appellee Named and Sued Dr. Mathew Alexander in Original
                    Petition

      Appellee’s expert’s report and curriculum vitae were due to be served by

October 17, 2012, 120 days from the filing of the Original Petition on June 19,

2012. See TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011). Appellee

asserted that Dr. Mathew Alexander was not sued in the Original Petition, and that

the First Amended Original Petition added Dr. Mathew Alexander as a party. (CR

209-12, 395-98; 3 RR 48-55). Appellee urged a misidentification occurred such

that the expert report deadline did not begin running until the First Amended

Original Petition was filed. (Id.).

      But the record demonstrates that Appellee knew who she was suing, and

sued Dr. Mathew Alexander within the Original Petition.           (CR 255-56).     A

misnomer differs from a misidentification. In re Greater Houston Orthopaedic

Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (citing Enserch Corp. v.

Parker, 794 S.W.2d 2, 4 (Tex. 1990)). Misidentification arises when two separate

legal entities exist and a plaintiff mistakenly sues an entity with a name similar to


BRIEF OF APPELLANT                                                           PAGE 14
that of the correct entity. Id. (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 828

(Tex. 1999)). A misnomer occurs when a party misnames itself or another party,

but the correct parties are involved.     Id.   The petition as a whole must be

considered in determining who is being sued. In re Markowitz, No. 10-10-00116-

CV, 2010 WL 2683067, at *1 (Tex. App.—Waco July 7, 2010, no pet.); Cox v.

Union Oil Co. of California, 917 S.W.2d 524, 526 (Tex. App.—Beaumont 1996,

no writ). The identity of the parties is determined from the substance of the matter,

even though that identity may not be accurately reflected by the style of the case.

Douglas v. KPH Consolidation, Inc., No. 14-12-01016-CV, 2013 WL 5883852, at

*3 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.).

      Here, Appellee may have misnamed a party—calling Dr. Mathew Alexander

Dr. “Lamar” Alexander several times in the Original Petition—but she named the

correct party. Appellee identified the “Parties” to the suit on page two of her

Original Petition, stating:

      Defendant Dr. Mathew Alexander is a resident of the state of Texas.
      He can be served through his Attorneys, McKibben, Woolsey, and
      Villareal, LLP at 555 N. Carancahua St. #1100 Corpus Christi, TX
      78401.

(CR 8) (emphasis added). Appellee also stated that South Texas Brain and Spine

Center “can be served through its registered agent, Dr. Mathew Alexander, at 1227

3rd St., Corpus Christi, Texas 78404-2313.”       (Id.) (emphasis added).     These

allegations are the same within the First Amended Petition. (CR 60).


BRIEF OF APPELLANT                                                           PAGE 15
      Appellee knew she wanted to sue the Dr. Alexander who was president of

the South Texas Brain and Spine Center, and in her petition listed two first names

for the Dr. Alexander she intended to sue. It was undisputed in the record that

there is only one Dr. Alexander who is president of South Texas Brain and Spine

Center, and only one Dr. Alexander who allegedly hired Dr. Konasiewicz. (See 3

RR 49). That Dr. Alexander is Mathew Alexander, M.D., one of those physicians

listed as a party defendant in the Original Petition. (CR 7-24). Appellee included

nothing within her “Factual Allegations” in her Original Petition addressing either

Dr. Mathew Alexander or Dr. Lamar Alexander, but she did include allegations

addressing South Texas Brain and Spine Center. (CR 9-12). To introduce her

“causes of action” section of her pleading, she states: “All of the actions of each

Defendant violated the approximate standard of care for the relevant healthcare

facilities or providers.” (CR 11). But Appellee named no party “Defendant Dr.

Lamar Alexander”; she only named as a party “Defendant Dr. Mathew Alexander.”

(CR 8). Further, it is only within the causes of action alleged as negligence and

gross negligence that Appellee referred to Dr. Mathew Alexander as Dr, Lamar

Alexander, stated as “Negligence: Dr. Melissa Macias, Dr. Lamar Alexander, and

South Texas Brain and Spine Center” in the headings and also in the first sentences

of those sections of her petition. (CR 12, 13, 14). The remainder of the allegations

pleaded within those sections address the conduct of “Defendants.” (Id.).



BRIEF OF APPELLANT                                                          PAGE 16
      Appellee urged that because Dr. Lamar Alexander was named in the style of

the Original Petition and under the legal theories of negligence and gross

negligence, this meant that Dr. Mathew Alexander was not sued. (3 RR 48-49).

Texas law is clear that legal effect of a pleading is not determined by its style but

by its allegations and evident purpose. Espeche v. Ritzell, 123 S.W.3d 657, 665

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (examining claims asserted

within original petition and concluding that claims asserted included those of party

not named in style until first amended petition); Krishnan v. Ramirez, 42 S.W.3d

205, 224-25 (Tex. App.—Corpus Christi 2001, pet. denied) (examining contents of

petition and concluding that legal effect of pleading was that suit was brought by

Ramirez as guardian of property of child, who was heir of deceased mother and

assignee of father’s claim, despite that “assignee” was not included in style). See

also State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (orig.proceeding)

(explaining it is substance of a pleading that controls the legal effect of a lawsuit;

not its form or style); TEX. R. CIV. P. 71. (pleadings shall be docketed as originally

designated and shall remain identified as designated, unless the court orders

redesignation).5   Construing the Original Petition as a whole, it is clear that

Appellee intended to and did sue the Dr. Mathew Alexander, who is also the

5
      Determining the legal effect of the pleading is a question of law. See Kadish v.
Pennington Assoc., L.P., 948 S.W.2d 301, 305 (Tex. App.—Houston [1st Dist.] 1995, no writ)
(Hedges, J., dissenting).



BRIEF OF APPELLANT                                                                PAGE 17
president of South Texas Brain and Spine Center, the entity Appellee urges is

partially responsible for negligently hiring and credentialing Dr. Konasiewicz.

(See CR 8-16).

      Appellee urged that the petition served with process controls the matter, and

that the Original Petition was not served on Dr. Mathew Alexander. (3 RR 49-55).

But this argument fails under Zanchi v. Lane,6 wherein the Texas Supreme Court

expressly held that, for purposes of calculating the Chapter 74 expert report

deadline, a person becomes a “party” to a suit when named in the petition; service

of that petition is not necessary to start the period for service of the report. (3 RR

52-53). Dr. Mathew Alexander became a party when named as a “Defendant” in

the Original Petition on June 19, 2012, thus triggering the expert report deadline.

Zanchi, 408 S.W.3d at 375.

      Appellee’s argument also begs the question: “If Dr. Mathew Alexander had

been served with the Original Petition, would he have been on notice that Appellee

was asserting claims against him?” The answer is yes. See Union Pac. Corp. v.

Legg, 49 S.W.3d 72, 78 (Tex. App.—Austin 2001, no pet.) (“A misnomer occurs

when a plaintiff intends to sue the correct defendant . . . misnames him in the

petition, citation, or both; describes events in the petition in such a way that the

correct defendant, when he receives service thereof, is apprised of the fact that he

6
      408 S.W.3d 373, 375 (Tex. 2013).



BRIEF OF APPELLANT                                                            PAGE 18
is the intended defendant . . .”); Burchinal v. PJ Trailers-Seminole Mgmt. Co.,

LLC, 372 S.W.3d 200, 214 (Tex. App.—Texarkana 2012, no pet.) (“The main

reason that the statute of limitations is tolled in cases of misnomer is that the party

intended to be sued has been served and put on notice that he is the intended

defendant.”).

      And there is no evidence that Appellee was mistaken about whom to sue. In

fact, the evidence establishes that Appellee intended to sue Dr. Mathew Alexander.

Appellee’s pre-suit notice letter and authorization forms for release of protected

health information—sent in an attempt to comply with sections 74.051-.052 of the

Civil Practice and Remedies Code—clearly illustrate that Appellee intended to sue

Dr. Mathew Alexander. (CR 342-47).

      Although addressed to Dr. Lamar Alexander, the body of the letter makes

clear that Appellee intends to hold Dr. Mathew Alexander responsible:

      This letter serves as formal notice under Chapter 74 of the Texas Civil
      Practice & Remedies Code of Mrs. Garza’s claim against Dr.
      Konasiewicz, the South Texas Brain and Spine Center, and its
      individual doctors and owners.

      ***

      Ms. Garza contends that her injuries were the result of the negligence
      and gross negligence of South Texas Brain and Spine Center, Christus
      Spohn Health Systems d/b/a Christus Spohn-Shoreline, Dr. Mathew
      Alexander, individually and as president of South Texas [B]rain and
      [S]pine [C]enter, and against Dr. Melissa Macias and Stefan
      Konasiewicz individually and their staffs.



BRIEF OF APPELLANT                                                             PAGE 19
(CR 343) (emphasis added). The authorization form for release of protected health

information states:

      I, Darlene Garza, hereby authorize Dr. Mathew Alexander, South
      Texas Brain and Spine Center, 1227 3rd Street, Corpus Christi,
      TX 78404 to obtain and disclose . . . the protected health information
      of Darlene Garza . . . .

(CR 344) (emphasis in original). The form continues:

      D.     The persons or class of persons to whom the health information
             of Darlene Garza will be disclosed or who will make use of
             said information are:

                                         ***

      3.     Any consulting or testifying experts employed by or on behalf
             of Dr. Mathew Alexander, South Texas Brain and Spine
             Center, 1227 3rd Street, Corpus Christi, TX 78404 with
             regard to the matter set out in the Notice of Health Care Claim
             accompanying this authorization;

      4.     Any attorneys (including staff, secretarial, clerical, or paralegal)
             employed by or on behalf of Dr. Mathew Alexander, South
             Texas Brain and Spine Center, 1227 3rd Street, Corpus
             Christi, TX 78404 with regard to the matter set out in the
             Notice of Health Care Claim accompanying this authorization;

(CR 344-45) (emphasis in original). This letter is dated the day before Appellee

filed the Original Petition. (CR 342). Appellee intended to sue Dr. Mathew

Alexander, even if she misnamed him in parts of the Original Petition.

      Appellee named as a party defendant and sued Dr. Mathew Alexander in her

Original Petition. Alternatively, her suit relates back to the Original Petition due to

a misnomer which was obviously intended to refer to Dr. Mathew Alexander. See


BRIEF OF APPELLANT                                                              PAGE 20
Greater Houston Orthopaedic, 295 S.W.3d at 326 (typically, misnomer cases

involve a plaintiff who has misnamed the defendant, and a petition involving this

type of misnomer is nonetheless effective, with any subsequent amendment

relating back to the date of the original filing).

      Further, this is not an instance of misidentification because there is no

evidence that a separate entity—Dr. Lamar Alexander—exists that Appellee

intended to sue.     (See 3 RR 49).       Appellee clearly intended to sue the Dr.

Alexander who was president of South Texas Brain and Spine Center, and there is

only one such Dr. Alexander—Dr. Mathew Alexander, named as a defendant party

in the Original Petition. Even if this were a case of misidentification—which

Appellant disputes—the Dallas Court of Appeals has held that misidentification of

a defendant and failed attempts to serve the defendant with citation do not extend

the 120-day deadline for service of Chapter 74 expert reports. Lone Star HMA,

L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex. App.—Dallas 2009, no pet.). In

Wheeler, Wheeler initially misidentified a hospital, but correctly identified the

hospital in her second amended petition and served it with citation two months

after she filed the initial petition. Id. at 814. Wheeler served the hospital with an

expert report within 120 days of serving the amended petition, but more than 120

days from filing the original petition. Id. at 815. The Dallas Court refused to

apply the doctrine of misidentification to the service of an expert report, and held



BRIEF OF APPELLANT                                                           PAGE 21
that section 74.35l(a) “makes no exception for the time it takes to effectuate

service of the lawsuit, nor does it address failed attempts to serve a lawsuit.” Id. at

816. Therefore, even if Dr. Alexander was misidentified, Appellee still failed to

serve her expert report upon Dr. Alexander within the 120-day deadline from the

filing of the Original Petition naming a Dr. Alexander and South Texas Brain and

Spine Center.

      Appellee sued Dr. Mathew Alexander in her Original Petition on June 19,

2012, and had 120 days following that date in which to serve Dr. Alexander with

an expert report and curriculum vitae in accordance with section 74.351 of the

Civil Practice and Remedies Code.          Appellee’s deadline for serving those

documents was October 17, 2012. Therefore, the trial court erroneously concluded

that Dr. Mathew Alexander was not named or sued in the Original Petition and that

Appellee’s report deadline was October 25, 2012; findings of fact numbers 3, 4, 5,

and 8 and conclusion of law number 18 are supported by legally and factually

insufficient evidence, and conclusion of law number 18 is legally erroneous. (See

Findings of Fact Nos. 3-5, 8 and Conclusions of Law No. 18 (SCR 16-20)). See

City of Keller, 168 S.W.3d at 810; Gonzales, 69 S.W.3d at 825. And as discussed

below, Appellee failed to serve the report or curriculum vitae by the October 17,

2012 deadline.




BRIEF OF APPELLANT                                                             PAGE 22
             2.     Report Faxed After 5:00 p.m. on Last Day of 120-day Period
                    Is Untimely

      Section 74.351(a) requires the claimant to “serve” the expert report within

120 days of the filing of the original petition. Id. § 74.351(a). This Court has

interpreted the word “serve” in section 74.351(a) to require compliance with Texas

Rule of Civil Procedure 21a. Christus Spohn Health Sys. Corp. v. Lopez, No. 13-

13-00165-CV, 2014 WL 3542094, at *4 (Tex. App.—Corpus Christi July 17,

2014, no pet.) (mem. op.); Otero v. Alonzo, No. 13-10-00304-CV, 2011 WL

765673, at *3 (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) (citing Salinas v.

Dimas, 310 S.W.3d 106, 108 (Tex. App.—Corpus Christi 2010, pet. denied)); See

TEX. R. CIV. P. 21a (1990).7 Rule 21a authorizes service by one of four methods of

delivery: (1) in person, by agent, or by courier receipted delivery; (2) by certified

or registered mail to the party’s last known address; (3) by telephonic document

transfer to the recipient's current telecopier number; or (4) by such other manner as

the court in its discretion may direct. Id.

      Rule 21a provides that:

      Service by mail shall be complete upon deposit of the paper, enclosed
      in a postpaid, properly addressed wrapper, in a post office or official
      depository under the care and custody of the United States Postal
      Service. Service by telephonic document transfer after 5:00 p.m. local
      time of the recipient shall be deemed served on the following day.

7
        Rule 21a was amended effective January 1, 2014. Those amendments do not apply, as
the suit and the service dispute at issue arose in 2012.



BRIEF OF APPELLANT                                                               PAGE 23
Id. (emphasis added). Notice may be served by a party to the suit, an attorney of

record, a sheriff or constable, or by any other person competent to testify. Id.

      An expert report faxed after 5:00 p.m. on the last day of the 120-day period

is not timely. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex.

App.—Houston [14th Dist.] 2011, no pet.)). In Nexion Health, the plaintiff served

an amended report by facsimile at 6:14 p.m. on the final day for serving reports.

Id. at 717. The court held that, under Rule 21a, service by fax after 5:00 p.m. is

considered served the next day, such that plaintiff served her expert report one day

late. Id. at 718. Because the plaintiff did not comply with the service requirements

of section 74.351, the trial court had no discretion to take any action other than to

dismiss the plaintiff’s claims. Id.; see also Thoyakulathu v. Brennan, 192 S.W.3d

849, 850-853 (Tex. App.—Texarkana 2006, no pet.) (late service of expert reports

due to fax machine problems could not except suit from dismissal required by

section 74.351).

      In the Second Motion to Dismiss, Appellant asserted that Appellee’s expert

report was not timely served. (CR 170-73). Specifically, on October 17, 2012, Dr.

Barrash’s expert report was faxed between 6:29-6:32 p.m. (CR 171). Appellant

attached to his motion: Exhibit A (Dr. Barrash’s expert report and accompanying

letter from Appellee’s law firm, indicating said facsimile time in the header located

at the top of each page of the cover letter and report) (CR 175-93), Exhibit B



BRIEF OF APPELLANT                                                            PAGE 24
(facsimile confirmation page provided by Appellee’s counsel to Defendant

Christus Spohn’s counsel, indicating the fax was sent on 10/17/2012 at 6:28 p.m.)

(CR 194-95), and Exhibit C (the affidavit of Carlos Villarreal, a partner of

Appellant’s counsel’s law firm, attesting that the expert report and cover letter of

Dr. Barrash were received by facsimile on 10/17/2012 between 6:29-6:32 p.m.).

(CR 196-98). Appellee admitted that the fax was sent at 6:28 p.m. on October 17,

2012. (CR 396).

      Here, the deadline for serving expert reports was October 17, 2012. As in

Nexion Health, the expert report here served after 5:00 p.m. on that date is

considered served on October 18, 2012. Appellee’s expert report was a day late,

and the trial court had no discretion under the statute but to dismiss Appellee’s

claims with prejudice and award Appellant’s reasonable attorney’s fees and costs.

Nexion Health, 335 S.W.3d at 718; see Thoyakulathu, 192 S.W.3d at 850-853.

The trial court erroneously concluded that Appellee’s expert report was timely

served; findings of fact numbers 3, 4, 5, and 8 and conclusion of law number 18

are supported by legally and factually insufficient evidence, and conclusion of law

number 18 is legally erroneous. (See Findings of Fact Nos. 3-5, 8 and Conclusions

of Law No. 18 (SCR 16-20)). Thus, the trial court abused its discretion in denying

Appellant’s Second Motion to Dismiss. (See CR 407). This Court should reverse

the trial court’s order, dismiss Appellee’s suit with prejudice, and remand for a



BRIEF OF APPELLANT                                                          PAGE 25
determination of Appellant’s reasonable attorney’s fees and costs of court. TEX.

CIV. PRAC. & REM. CODE § 74.351(b).

                           CONCLUSION & PRAYER

      Appellee’s deadline for serving expert reports was October 17, 2012.

Appellant established that Appellee did not serve the expert reports by that date.

Therefore, Chapter 74 dictates that Appellant was entitled to dismissal of

Appellee’s claims with prejudice and an award of reasonable attorney's fees and

costs of court.

      Appellee sued Dr. Mathew Alexander in the Original Petition filed on June

19, 2012, even if Appellee mistakenly named him Dr. Lamar Alexander within

various allegations in that pleading. Appellee named Dr. Mathew Alexander as a

party defendant to the suit, listed his attorneys for service of process, and indicated

that Dr. Mathew Alexander was the agent for a co-defendant, South Texas Brain

and Spine Center. Appellee’s allegations of conduct supporting her negligence and

gross negligence legal theories addressed the conduct of “Defendants,” and there

was no Defendant “Dr. Lamar Alexander” – only a Defendant Dr. Mathew

Alexander. Appellee also sent a pre-suit notice letter specifically naming and

describing Dr. Mathew Alexander and the claims Appellee intended to pursue

against him individually. Appellee intended to sue Dr. Mathew Alexander, the

president of South Texas Brain and Spine Center. Because Appellee sued Dr.



BRIEF OF APPELLANT                                                             PAGE 26
Mathew Alexander in the Original Petition, Appellee’s deadline for service of

Chapter 74 expert reports was October 17, 2012.              The trial court erred in

concluding otherwise.

      It is undisputed that Appellee did not serve an expert report by October 17,

2012. Appellee faxed a report around 6:30 p.m. on that date, but under Rule 21a,

service by fax after 5:00 p.m. is considered served the next day, here October 18,

2012. Appellee served the expert report one day late, requiring dismissal under the

statute and case law.

      Therefore, the trial court abused its discretion in denying Appellant’s Second

Motion to Dismiss. This Court should reverse the trial court’s order, dismiss

Appellee’s suit with prejudice, and remand to the trial court for determination of

Appellant’s reasonable attorney’s fees and costs of court.

      THEREFORE, Appellant Mathew Alexander, M.D., Individually and as

President of South Texas Brain and Spine Center respectfully prays this Court

reverse the trial court’s order denying Appellant’s Second Motion to Dismiss,

dismiss Appellee’s claims with prejudice, and remand to the trial court with an

order to determine and award Appellant’s reasonable attorney’s fees and costs of

court. Appellant prays for all such other and further relief, whether general or

special, at law and in equity, as this Court deems just.




BRIEF OF APPELLANT                                                            PAGE 27
                                     Respectfully submitted,

                                     COOPER & SCULLY, P.C.


                                     By: /s/Diana L. Faust
                                          DIANA L. FAUST
                                          diana.faust@cooperscully.com
                                          State Bar No. 00793717
                                          R. BRENT COOPER
                                          brent.cooper@cooperscully.com
                                          State Bar No. 04783250
                                          KYLE M. BURKE
                                          kyle.burke@cooperscully.com
                                          State Bar No. 24073089

                                     900 Jackson, Suite 100
                                     Dallas, Texas 75202
                                     (214) 712-9500
                                     (214) 712-9540 (fax)

                                     ATTORNEYS     FOR   APPELLANT
                                     MATHEW     ALEXANDER,      M.D.,
                                     INDIVIDUALLY, AND AS PRESIDENT
                                     OF SOUTH TEXAS BRAIN AND SPINE
                                     CENTER


                     CERTIFICATE OF COMPLIANCE

      I hereby certify that this Brief of Appellant was prepared using Microsoft

Word 2003, which indicated that the total word count (exclusive of those items

listed in rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, as amended) is

6,576 words.

                                      /s/Diana L. Faust
                                     DIANA L. FAUST


BRIEF OF APPELLANT                                                        PAGE 28
                       CERTIFICATE OF SERVICE

      I hereby certify that I served a true and correct copy of this Brief of
Appellant on the following counsel of record, on the 19th day of March 2015, by
the method indicated:

Mr. Robert C. Hilliard                                            VIA EFILE
bobh@hmglawfirm.com
Mr. Rudy Gonzales, Jr.
rgonzales@hmglawfirm.com
Ms. Marion M. Reilly
marion@hmglawfirm.com
Ms. Catherine D. Tobin
catherine@hmglawfirm.com
Mr. John B. Martinez
john@hmglawfirm.com
Mr. T. Christopher Pinedo
cpinedo@hmglawfirm.com
Mr. Todd A. Hunter
todd@hmglawfirm.com
HILLIARD MUNOZ GONZALES, L.L.P.
719 S. Shoreline Blvd., Suite 500
Corpus Christi, TX 78401
Counsel for Appellee

Mr. Richard C. Woolsey                                            VIA EFILE
RWoolsey@rcwoolseylaw.com
WOOLSEY & ASSOCIATES, P.L.L.C.
555 North Carancahua, Suite 1160
Corpus Christi, TX 78401-0841
Trial Counsel for Appellant



                                     /s/Diana L. Faust
                                    DIANA L. FAUST




BRIEF OF APPELLANT                                                      PAGE 29
                             NO. 13-15-00059-CV


                         IN THE COURT OF APPEALS
                       FOR THE THIRTEENTH DISTRICT
                         AT CORPUS CHRISTI, TEXAS


 MATHEW ALEXANDER, M.D., INDIVIDUALLY AND AS PRESIDENT
       OF SOUTH TEXAS BRAIN AND SPINE CENTER,
                      Appellant,
                                       v.
                             DARLENE GARZA,
                                 Appellee.


     On Appeal from County Court at Law No. 1, Nueces County, Texas
                     Cause No. 2012-CCV-61201-1
                       (Hon. Robert J. Vargas)


                   APPENDIX TO BRIEF OF APPELLANT


      In compliance with rule 38.1(j) of the Texas Rules of Appellate Procedure,

Appellant Mathew Alexander, M.D., Individually and as President of South Texas

Brain and Spine Center submits this Appendix to his Brief of Appellant containing

the following items:

      Tab A:       January 8, 2015 Order on Defendants Mathew Alexander,
                   M.D., Individually and as President of South Texas Brain and
                   Spine Center, et al.’s Second Motion to Dismiss (CR 407)
      Tab B:       February 17, 2015 Court’s Findings of Fact and Conclusions of
                   Law (SCR 16-20)
      D/923166v5




BRIEF OF APPELLANT                                                       PAGE 30
APPENDIX TAB “A”
                          CAUSE NO. 2012 CCV 61201-1


Darlene Garza,                                                In the County Court
Plaintiff,

v.

Dr. Stefan Konasiewicz; Dr. Melissa                               At Law No. One
Macias; Dr. Mathew Alexander,
individually and as President of South
Texas Brain and Spine Center; South
Texas Brain and Spine Center,
Defendants.                                                Nueces County, Texas




 ORDER ON DEFENDANTS', DR. MATHEW ALEXANDER, M.D., INDIVIDUALLY
  AND AS PRESIDENT OF SOUTH TEXAS BRAIN AND SPINE CENTER, AND
 SOUTH TEXAS BRAIN AND SPINE CENTER'S, SECOND MOTION TO DISMISS



      After considering Defendants' Dr. Alexander, M.D. Individually and as President

of South Texas Brain and Spine Center, and The South     as Brain and Spine Center's

Second Motion to Dismiss, the Court DENIES said

SIGNED on                    , 20K-




                                                                                407
APPENDIX TAB “B”
                             CAUSE NO. 2012 CCV 61201-1


Darlene Garza,                        §                             In the County Court
Plaintiff,                            §
                                      §
v.                                    §
                                      §
Dr. Stefan Konasiewicz and Dr.        §                                         at Law #1
Mathew Alexander, Individually and as §
President of South Texas Brain and    §
Spine Center,                         §
Defendants.                           §                          Nueces County, Texas

                 fi
       JaimetOrriitru& ORDER ON FINDINGS OF FACT AND CONCLUSIONS OF LAW

       After a hearing held on this the 17th day of February 2015, and after considering

all responses and objections and oral argument of all Counsel the Court enters the

following Findings of Fact and Conclusions of Law:

                                  I. FINDINGS OF FACT

1.     On June 19, 2012, Plaintiff filed her Original Petition and Requests for

Disclosure,

2.     Under Chapter 74 of the Texas Civil Practice and Remedies Code, Plaintiff had

120 days from June 19, 2012 to serve the party defendants named in Plaintiff's Original

Petition with an expert report; 120 days from June 19, 2012 was October 17, 2012.

3.     In her Original Petition, Plaintiff did not name Dr. Mathew Alexander as a party to

the suit: Plaintiff did not assert a cause of action against Dr. Mathew Alexander in her

Original Petition nor did Plaintiff list Dr. Mathew Alexander as a defendant in the style of

the case for her Original Petition.

4.     Plaintiff then filed her First Amended Petition on June 27, 2012. Plaintiffs First



                                                                                     Page 1


                                                                                        16
Amended Petition named Dr. Mathew Alexander individually and as President as South

Texas Brain and Spine Center as a party to the suit; the First Amended Petition alleged

facts and causes of actions against Dr. Mathew Alexander and listed him as a

defendant in the style of the case. June 27, 2012 was the first time Plaintiff sued and

brought a cause of action against Defendant Dr. Mathew Alexander.

5.     Under Chapter 74 of the Texas Civil Practice and Remedies Code, Plaintiff had

120 days from June 27, 2012 to serve Dr. Mathew Alexander with an expert report; 120

days from June 27, 2012 was October 25, 2012.

6.     On October 17, 2012, Plaintiff timely served her Chapter 74 expert report, a

report by Dr. Martin Barrash, on Defendant Dr. Stephen Konasiewicz by depositing it

into the mail at the United States Post Office at 809 Nueces Bay Boulevard, Corpus

Christi, TX 78469. The expert report was served on Dr. Konasiewicz postage paid by

certified mail, return receipt requested.

7.     Plaintiff has provided an affidavit of Nicole Stoner dated May 3, 2013, and the

testimony of Nicole Stoner at the May 8, 2013, hearing confirming service of the

Chapter 74 expert report on Defendant Konasiewicz by depositing the same with the

United States Postal Service postage paid on October 17, 2012. The Stoner Affidavit

and testimony are prima facie evidence that Plaintiffs Chapter 74 expert report was

served on Dr. Stephen Konasiewicz on October 17, 2012, which is within the 120-day

deadline established by Tex. Civ. Prac. & Rem. Code §74.351 for service of expert

reports. McQuade v. Berry, 2012 Tex. App. LEXIS 10065 (Tex. App.—Fort Worth 2012,

no pet.) (the patient's certificate of service constituted prima facie evidence that he

served the expert report on the dentist). The May 21, 2014, affidavit from Tim


                                                                                 Page 2


                                                                                   17
t



    Birrenkott, proffered by Defendant Dr. Stephen Konasiewicz, does not obligate a finding

    that the prima facie presumption has been overcome. See Walker v. Packer, 827

    S.W.2d 833, 840 (Tex. 1992) (stating that to establish an abuse of discretion on a trial

    court's resolution of a factual issue, a party must show that the "trial court could

    reasonably have reached only one decision").

    8.     Plaintiff timely served Defendant Dr. Mathew Alexander with Plaintiff's Chapter

    74 expert report via facsimile on October 17, 2012, at approximately 6:28 p.m. Plaintiff

    had until October 25, 2012 to serve an expert report on Defendant Dr. Mathew

    Alexander, and her service of her expert report via facsimile on October 17, 2012, was

    therefore timely.

    9.     On October 31, 2012, Defendants Dr. Mathew Alexander, Individually and as

    President of South Texas Brain and Spine Center, and South Texas Brain and Spine

    Center moved to dismiss Plaintiff's action, alleging that Plaintiffs Chapter 74 expert

    report was legally insufficient. Plaintiff filed a response on May 1, 2013.

    10.   On November 28, 2012, Defendants Dr. Mathew Alexander, Individually and as

President of South Texas Brain and Spine Center, and South Texas Brain and Spine

    Center filed and served a Second Motion to Dismiss addressing the timeliness of

Plaintiffs Chapter 74 expert report. Plaintiff filed a response on May 1, 2013, and filed

    supplemental response on May 3, 2013. On May 8, 2013, Defendants filed their Reply

in support of their Motion.

11.       On November 16, 2012, Defendant Dr. Stephen Konasiewicz filed his Objections

to Plaintiffs expert report pursuant to Texas Civil Practice and Remedies Code § 74.351

et seq.       On May 3, 2013, Plaintiff filed her Response to Defendant Dr. Stephen


                                                                                     Page 3


                                                                                          18
Konasiewicz's Objections.

12.    On May 8, 2013, the Court conducted a hearing and received evidence on the

Motion to Dismiss and the Objections. The hearing was limited to Defendants'

complaints concerning the timeliness of Plaintiffs Chapter 74 expert report. The Court

took the matter under advisement.

13.    On July 8, 2014, Defendant Dr. Stephen Konasiewicz filed a supplemental brief

in support of his objections to Plaintiffs expert's report pursuant to Texas Civil Practice

and Remedies Code § 74.351 et seq., to which Plaintiff responded on January 2, 2015.

14.    On July 9, 2014, Defendants Dr. Mathew Alexander, Individually and as

President of South Texas Brain and Spine Center, and South Texas Brain and Spine

Center filed and served a Supplemental Brief in Support of their Second Motion to

Dismiss. Plaintiff filed her Response to Defendants' Supplemental Brief in Support of

Second Motion to Dismiss on January 2, 2015.

15.     On January 6, 2015, the Court conducted another hearing on the Motions to

Dismiss and the Objections. The hearing was again limited to Defendants' complaints

concerning the timeliness of service of Plaintiffs Chapter 74 expert reports.

16.    On January 8, 2015, this Court overruled Dr. Stephen Konasiewicz's Objections

to the timeliness of Plaintiffs Chapter 74 expert report and denied Defendants', Dr.

Mathew Alexander, Individually and as President of South Texas Brain and Spine

Center, and South Texas Brain and Spine Center, Motion to Dismiss based on the

alleged untimely service of the report.

                              II. CONCLUSIONS OF LAW

17.   Plaintiff served her Chapter 74 expert report, by certified mail, on Defendant Dr.


                                                                                    Page 4


                                                                                       19
Stephen Konasiewicz's by depositing it into the mail on October 17, 2012, in

accordance with Texas Rule of Civil Procedure 21a. When a document is served by

certified mail, service is "complete upon deposit of the paper, enclosed in a postpaid,

properly addressed wrapper, in a post office or official depository under the care and

custody of the United States Postal Service." Kendrick v. Garcia, 171 S.W.3d 698, 704

(Tex. App.—Eastland 2005, pet. denied) (emphasis added).

18.     Plaintiff served her Chapter 74 expert report on Defendant Dr. Mathew Alexander

within the 120-day deadline mandated by Texas Civil Practice and Remedies Code

Section 74.351(a) because the operative pleading asserting a cause of action against

Dr. Mathew Alexander was Plaintiffs First Amended Petition. Hayes v. Carroll, 314

S.W.3d 494 (Tex. App.—Austin 2010, no pet.) (reasoning that if a defendant has not

been added to a case, there has yet to be a lawsuit filed against that defendant).

19.     This Court's rulings are subject to review under an abuse of discretion standard.

McQuade v. Berry, 2012 Tex. App. LEXIS 10065 (Tex.          —Fort Worth 2012, no pet.).



Date:
                                         HONG                              VARGAS




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