                                                                              ACCEPTED
                                                                           13-15-00060-cv
                                                          THIRTEENTH COURT OF APPEALS
                                                                 CORPUS CHRISTI, TEXAS
                                                                     4/29/2015 3:16:35 PM
                                                                        DORIAN RAMIREZ
                                                                                   CLERK

                      No. 13-15-00060-CV

                 IN THE COURT OF APPEALS         FILED IN
   FOR THE THIRTEENTH DISTRICT - AT CORPUS13th
                                           CHRISTI
                                               COURT, OF
                                                      TEXAS
                                                         APPEALS
                                       CORPUS CHRISTI/EDINBURG, TEXAS
                                           4/29/2015 3:16:35 PM
                  DR. STEPHAN KONASIEWICZ, DORIAN E. RAMIREZ
                            Defendant-Appellant, Clerk
                              v.
                         JUAN GARZA,
                                 Plaintiff-Appellee.

ON APPEAL FROM COUNTY COURT AT LAW NO. 1, NUECES COUNTY, TEXAS
                 CAUSE NO. 2012-CCV-61202-1
                   (HON. ROBERT J. VARGAS)


               PLAINTIFF-APPELLEE’S BRIEF


                              HILLIARD MUÑOZ GONZALES LLP
                              Robert C. Hilliard
                              State Bar No. 09677700
                              bobh@hmglawfirm.com
                              Catherine D. Tobin
                              State Bar No. 24013642
                              catherine@hmglawfirm.com
                              John B. Martinez
                              State Bar No. 24010212
                              john@hmglawfirm.com
                              T. Christopher Pinedo
                              State Bar No. 00788935
                              cpinedo@hmglawfirm.com
                              Marion Reilly
                              State Bar No. 24079195
                              marion@hmglawfirm.com
                              719 S. Shoreline, Suite 500
                              Corpus Christi, TX 78401
                              Telephone No.: (361) 882-1612
                              Facsimile No.: (361) 882-3015
                       ATTORNEYS FOR PLAINTIFF-APPELLEE
                                No. 13-15-00060-CV

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

                           DR. STEPHAN KONASIEWICZ,
                                     Defendant-Appellant,
                                          v.
                                    JUAN GARZA,
                                            Plaintiff-Appellee.

       ON APPEAL FROM COUNTY COURT AT LAW NO. 1, NUECES COUNTY, TEXAS
                        CAUSE NO. 2012-CCV-61202-1
                          (HON. ROBERT J. VARGAS)


               STATEMENT REGARDING ORAL ARGUMENT



        This appeal involves clear facts and well-settled law. Together, they amply

support the trial court’s decision to overrule Defendant-Appellant’s objections to

Plaintiff-Appellee’s Chapter 74 expert report. As a result, Plaintiff-Appellee believes

that oral argument is not necessary to aid the decisional process or to expeditiously

resolve this case. However, should the Court wish to hear oral argument, then

Plaintiff-Appellee would welcome the opportunity to further articulate these issues.




	                                         ii
                                            TABLE OF CONTENTS


TABLE OF CONTENTS ..................................................................................................... iii
INDEX OF AUTHORITIES ............................................................................................... v
STATEMENT OF THE CASE ....................................................................................... viii
ISSUES PRESENTED .......................................................................................................... ix
STATEMENT OF THE FACTS ........................................................................................ 1
STANDARDS OF REVIEW ............................................................................................... 6
        I.          THE TRIAL COURT’S DENIAL OF A MOTION TO DISMISS IS
                    REVIEWED FOR AN ABUSE OF DISCRETION ................................................. 6

        II.         THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF
                    LAW ARE REVIEWED FOR FACTUAL AND LEGAL SUFFICIENCY OF
                    THE EVIDENCE ................................................................................................. 7

SUMMARY OF THE ARGUMENT .................................................................................. 8
ARGUMENT .......................................................................................................................... 9
          I.        THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
                    OVERRULING DEFENDANT-APPELLANT’S OBJECTIONS TO
                    PLAINTIFF-APPELLEE’S CHAPTER 74 EXPERT REPORT .............................. 9

                    A.        Plaintiff-Appellee is Entitled to a Presumption of Timely
                              Service ................................................................................................. 10

                    B.        Defendant-Appellant Did Not Rebut the Presumption of
                              Timely Service .................................................................................... 13

          II.       THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO
                    SUPPORT THE TRIAL COURT’S FINDINGS OF FACT AND
                    CONCLUSIONS OF LAW .................................................................................. 15

CONCLUSION .................................................................................................................... 18
RULE 9.4(I) CERTIFICATION ...................................................................................... 19


	                                                                iii
CERTIFICATE OF SERVICE ........................................................................................ 19




	                                                     iv
                                        INDEX OF AUTHORITIES

                                                                                                                      PAGE
UNITED STATES SUPREME COURT CASES:

Anderson v. City of Bessemar,
      470 U.S. 546 (1985) ..................................................................................................... 6

Bose Corp. v. Consumers Union of U.S., Inc.,
       466 U.S. 485 (1984) .................................................................................................. 17

Southland Life Ins. Co. v. Greenwade,
       159 S.W.2d 854 (1942) ............................................................................................. 10


SUPREME COURT OF TEXAS CASES:

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
     46 S.W.3d 873 (Tex. 2001) ......................................................................................... 6

BMC Software Belgium, N.V. v. Marchland,
     82 S.W.3d 789 (Tex. 2001) ......................................................................................... 7

Cliff v. Huggins,
         724 S.W.2d 778 (Tex. 1987) .............................................................................. 10, 13

In re E.A.,
       287 S.W.3d 1 (Tex. 2009) ........................................................................................ 13

Jaffe Aircraft Corp. v. Carr,
       867 S.W.2d 27 (Tex. 1993) ......................................................................................... 7

Manzi v. State,
88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (en banc) ....................................................... 6

Mathis v. Lockwood,
       166 S.W.3d 743 (Tex. 2005) .................................................................................... 10

Nat’l Med. Enters., Inc. v. Godbey,
       924 S.W.2d 123 (Tex. 1996) .................................................................................... 12


	                                                             v
Walker v. Packer,
      827 S.W.2d 833 (Tex. 1992) ................................................................................. 7, 16

Worford v. Stamper,
      801 S.W.2d 108, 109 (Tex. 1990) ................................................................................ 6


TEXAS COURTS OF APPEALS CASES:

Cameron Cnty Drainage Dist. No. 5 v. Gonzales,
      69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) ................................... 7

H.E.B., L.L.C. v. Ardinger,
      369 S.W.3d 496 (Tex. App.—Fort Worth 2012, no pet.) ..................................... 7

Kendrick v. Garcia,
       171 S.W.3d 698(Tex. App.—Eastland 2005, pet. denied) ........................ 4, 10, 16

Lease Fin. Group, LLC v. Childers,
       310 S.W.3d 120 (Tex. App.—Fort Worth 2010, no pet.) .................................. 10

McAllen Police Officers Union v. Tamez,
      81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism’d) ............................ 7

McQuade v. Berry,
     No. 02-12-00099-CV, 2012 WL 6049012 (Tex. App.—Fort Worth 2012,
     no pet.) ............................................................................................................. 6, 14, 15

Miller v. Kennedy & Minshew Prof. Corp.,
        80 S.W.3d 161 (Tex. App.—Fort Worth 2002, pet. denied) ............................. 12

Pallares v. Magic Valley Elec. Coop.,
        267 S.W.3d 67 (Tex. App.—Corpus Christi 2008, pet. denied) ........................... 7

Pentico v. Mad-Wayler, Inc.,
         964 S.W.2d 708 (Tex. App.-Corpus Christi 1998, pet. denied) ....................... 14

Puri v. Mansukhani,
        973 S.W.2d 701 (Tex. App.—Houston [14th Dist.] 1998).................................. 16


	                                                               vi
Schindler v. Schindler,
       119 S.W.3d 923 (Tex. App.—Dallas 2003, pet. denied) ...................................... 16


STATUTES AND RULES:

Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013 ................... 9

Tex. Civ. Prac. & Rem. Code § 74.351(a) (Vernon 2011) .................................................. 9

Tex. Civ. Prac. & Rem. Code § 74.351(b) (Vernon 2011) ................................................. 9

Tex. Civ. Prac. & Rem. Code § 74.351 .......................................................................... 5, 15

Tex. R. Civ. P. 21a ............................................................................................... 4, 10, 14, 13



	  




	                                                            vii
                       STATEMENT OF THE CASE

Nature of the Case:        This is an interlocutory appeal challenging the trial

                           court’s    order     overruling   Defendant-Appellant’s

                           objections to Plaintiff-Appellee’s expert report in a

                           medical malpractice case. The principal issue in this

                           case is whether the trial court properly determined

                           that Plaintiff-Appellee’s expert report was timely

                           when it was deposited into the mail at a United

                           States Post Office within 120 days of filing his

                           Original Petition.

Trial Court:               County Court at Law No. 1, Nueces County, Texas,

                           Judge Robert J. Vargas presiding.


Trial Court Disposition:   The trial court determined that Plaintiff-Appellee

                           timely served a sufficient Chapter 74 expert report

                           within 120-days of filing his Original Petition. (Supp.

                           CR 16-17.)         Thus, the trial court overruled

                           Defendant-Appellant’s        objections   to   Plaintiff-

                           Appellee’s expert report. (CR 406.)




	                                   viii
                                    ISSUES PRESENTED

             Plaintiff-Appellee disagrees with the issues presented by Defendant-Appellant

in its opening brief. This case involves two relatively simple issues:

        I.         Whether the trial court properly overruled Defendant-Appellant’s

                   objections to the timeliness of Plaintiff-Appellee’s Chapter 74 expert

                   report when he deposited the report into a United States Postal Service

                   mail depository within 120 days of filing his lawsuit.

       II.         Whether the trial court’s Findings of Fact numbers 6 and 7 and

                   Conclusion of Law number 17 are legally and factually sufficient.




	                                               ix
                        STATEMENT OF THE FACTS

Mr. Garza’s Surgeries
       Mr. Garza originally visited South Texas Brain and Spine Center to treat his

back pain. (CR 28.) After an initial consultation with Dr. Macias at the South Texas

Brain and Spine Center, Mr. Garza underwent surgery with Dr. Konasiewicz. (CR

28.) Immediately after the surgery, Mr. Garza experienced intense pain and could not

walk. (CR 28.) Despite repeated calls to the South Texas Brain and Spine Center

about his condition, doctors assured him it was just a “normal” part of the recovery

process. (CR 28.) Dr. Konasiewicz maintained this position even though Mr. Garza

had to be brought to Dr. Konasiewicz’s office on a stretcher approximately one

month after surgery. (CR 28.)

       Mr. Garza eventually saw another doctor in Victoria, Texas for the pain he

experienced post-surgery. (CR 28.) That doctor discovered a large mass on Mr.

Garza’s spine and recommended emergency surgery. (CR 28.) During the emergency

surgery, a large mass was removed that Dr. Konasiewicz had left in Mr. Garza’s body.

(CR 28.) The mass had been pinching Mr. Garza’s spine and caused irreparable

damage—damage that will likely leave Mr. Garza unable to walk for the rest of his

life. (CR 29.)

       Before Dr. Konasiewicz operated on Mr. Garza, he was active and enjoyed life.

(CR 29.) Since the surgery, however, Mr. Garza is completely bedridden and is in and




	                                       1
out of hospital and rehabilitation centers. (CR 29.) Mr. Garza is forced to use a foley

catheter and had to have his leg amputated. (CR 29.)

       Little did Mr. Garza know, Dr. Konasiewicz had a long history of medical

malpractice.      (CR 33.)    Dr. Konasiewicz managed to attain a special infamy in

Minnesota, and a simple internet search uncovers numerous articles dealing with the

extent of his history of malpractice. (CR 33); see, e.g., J.G. Preston, “You’ve Paid $3

Million     to     Settle    Malpractice   Suits?   Welcome    to    Texas,     Podnah!”,

http://www.protectconsumerjustice.org/youve-paid-3-million-to-settle-malpractice-

suits-welcome-to-texas-podnah.html (last accessed April 17, 2015) (discussing how the

brain surgeon has been sued for medical malpractice nine times and was involved in

cases that have already led to more than $3 million in settlements to injured patients).

Mr. Garza’s Lawsuit and Service of His Expert Report

       On June 19, 2012, Mr. Garza filed his Original Petition and Requests for

Disclosure. (Supp. CR 13.) On October 17, 2012, a paralegal with counsel for

Plaintiff-Appellee’s firm, Nicole Porter Stoner, deposited Plaintiff-Appellee’s expert

report, a report by Dr. Martin Barrash, into the mail at the United States Post Office

at 809 Nueces Bay Boulevard, Corpus Christi, Texas 78469. (Supp. CR 14.); see also (2

RR 46-49.) This report was addressed to and served on Dr. Konasiewicz, postage

paid, by certified mail, return receipt requested to the following addresses:

       a.        Stefan Konasiewicz
                 1227 3rd Street


	                                            2
             Corpus Christi, Texas 78404-2313

       b.    Stefan Konasiewicz
             1400 Ocean Dr. Apt. 904C
             Corpus Christi, Texas 78404-2196

       c.    Stefan Konasiewicz
             William Beaumont
             Army Medical Center
             5005 N. Piedras St.
             El Paso, Texas 79920.

(CR 251.) There is no dispute that Dr. Konasiewicz actually received the report. (CR

321-22.)

       During the May 8, 2013 hearing on Defendant-Appellant’s objections to the

expert report, Plaintiff-Appellee provided an affidavit to the Court, signed by Ms.

Porter Stoner, that confirmed she deposited the expert report with the United States

Postal Service, postage paid, on October 17, 2012. (Supp. CR 14.); see also (2 RR 45-

50.) Ms. Porter Stoner also testified, under oath, to that same effect at the May 8,

2013 hearing. (Supp. CR 14.); see also (2 RR 45-49.) Specifically, Ms. Porter Stoner

averred that she affixed postage to the articles using his office’s postage machine. (2

RR 48.) Ms. Porter Stoner also stated that she mailed the items via certified mail,

return receipt requested, postage-prepaid, and deposited them in the outside box at

the Nueces Bay Boulevard post office around 6:30 p.m. (2 RR 46-49.)

       At the May 8, 2013 hearing, Defendant-Appellant argued that the United States

Postal Service Track & Confirm results showed that the expert report was accepted by

the Portland, Texas post office on October 18, 2012.         (3 RR 13.)    Defendant-

	                                        3
Appellant also offered the affidavit of Mr. Tim Birrenkott, a USPS employee, who

stated his opinion that the articles were “tendered into the U.S. Mail at the Portland,

Texas post office branch ensued the post office on October 18, 2012 at 4:13 PM.”

(CR 287.)

       The trial court determined that pursuant to Chapter 74 of the Texas Civil

Practice and Remedies Code, Plaintiff-Appellee had 120 days from June 19, 2012 to

serve Dr. Konasiewicz with an expert report; 120 days from June 19, 2012 was

October 17, 2012. (Supp. CR 13.) In particular, the trial court, per Texas Rule of

Civil Procedure Rule 21a, held that “[w]hen 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.’” (Supp. CR 17) (citing Kendrick v. Garcia, 171

S.W.3d 698, 704 (Tex. App.—Eastland 2005, pet. denied)) (emphasis added) (Tex. R.

Civ. P. 21a.).

       After considering the evidence, the trial court found that “[o]n October 17,

2012, Plaintiff-Appellee 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, Texas

78469.” (Supp. CR 14.) The Court found that “[t]he Stoner Affidavit and testimony

are prima facie evidence that Plaintiff-Appellee’s Chapter 74 expert report was served

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

	                                        4
deadline established by Tex. Civ. Prac. & Rem. Code § 74.351 for service of expert

reports.” (Supp. CR 14.) The Court further found that “[t]he May 21, 2014 affidavit

from Tim Birrenkott, proffered by Defendant Dr. Stephen Konasiewicz, does not

obligate a finding that the prima facie presumption has been overcome.” (Supp. CR

14.) Accordingly, the trial court issued an order overruling Defendant-Appellant’s

objections to Plaintiff-Appellee’s expert report on January 8, 2015.   This appeal

followed. (CR 406.)




	                                      5
                             STANDARDS OF REVIEW

I.     The Trial Court’s Denial of a Motion to Dismiss is Reviewed for an
       Abuse of Discretion.

       The trial court’s denial of a motion to dismiss for failure to timely file a section

74.351(a) expert report is reviewed for an abuse of discretion. See Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of

discretion standard in reviewing trial court’s decision regarding the dismissal of a

claim under Chapter 74); McQuade v. Berry, No. 02-12-00099-CV, 2012 WL 6049012,

at *2 (Tex. App.—Fort Worth 2012, no pet.) (affirming the trial court’s denial of a

motion to dismiss based on timeliness challenges after reviewing the decision for an

abuse of discretion). Under this standard, an appellate court will not reverse a trial

court’s judgment simply because the appellate court would have decided the matter

differently. To the contrary, the Court will only reverse the judgment if the trial court

“acted without any reference to any guiding rules or principles.” Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990). This deferential standard of review applies even to

“the trial court’s resolution of the historical facts from conflicting affidavits.” Manzi v.

State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (en banc); see Anderson v. City of

Bessemar, 470 U.S. 546, 574-75 (1985) (“[T]he parties to a case on appeal have already

been forced to concentrate their energies and resources on persuading the trial judge

that their account of the facts is a correct one; requiring them to persuade three more

judges at the appellate level is requiring too much.”).



	                                           6
       To the extent resolution of the issues requires interpreting statutes, the court

applies a de novo standard of review. See Pallares v. Magic Valley Elec. Coop., 267

S.W.3d 67, 69-70 (Tex. App.—Corpus Christi 2008, pet. denied) (internal citations

omitted).

II.    The Trial Court’s Findings of Fact and Conclusions of Law Are
       Reviewed for Factual and Legal Sufficiency of the Evidence.

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

See BMC Software Belgium, N.V. v. Marchland, 82 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). The appellate court

will only set aside a factual finding if the evidence supporting the finding is contrary to

the overwhelming weight of the evidence. See Cameron Cnty 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)). The appellate court will not

substitute its judgment for that of the trial court in evaluating factual matters

determined by the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A

trial court does not abuse its discretion when it bases its decision on conflicting

evidence and when some evidence of substantive and probative character supports

the decision. See H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 520 (Tex. App.—Fort

Worth 2012, no pet.). Here, Plaintiff-Appellee provided substantive evidence of a

probative character.


	                                          7
                        SUMMARY OF THE ARGUMENT

                                       I.
       The trial court correctly overruled Defendant-Appellant’s objections to

Plaintiff-Appellee’s Chapter 74 expert report. In accordance with Texas Rule of Civil

Procedure 21a, Plaintiff-Appellee timely deposited his expert report in an official

United States Post Office mail depository within 120-days of filing his Original

Petition. Plaintiff-Appellee presented the trial court with ample evidence to establish

a prima facie case of timely service and this evidence was not rebutted by Defendant-

Appellant. The trial court therefore correctly found in favor of Plaintiff-Appellee on

the timeliness issue.

                                           II.

        The evidence is more than sufficient to support the trial court’s factual finding

that Plaintiff-Appellee deposited his expert report in an official United States Post

Office mail depository on October 17, 2012. The trial court was free to assess the

credibility of the witnesses and the trial court’s conclusions are not against the great

weight of the evidence. Moreover, the legal conclusions that the trial court drew from

the facts of the case were correct and supported by the law. Thus, the trial court’s

findings of fact numbers 6 and 7 and conclusion of law number 17 are legally and

factually sufficient.




	                                          8
                                                                                                                                                                                                                                                    ARGUMENT

I.                                                         THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING
                                                           DEFENDANT-APPELLANT’S OBJECTIONS TO PLAINTIFF-APPELLEE’S
                                                           CHAPTER 74 EXPERT REPORT.

                                                           At the time that this lawsuit was filed and amended, Chapter 74 of the Texas

Civil Practice & Remedies Code provided that a claimant 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).1 If a claimant fails to serve an expert report on the defendant physician or

health care provider, then, on the motion of the affected physician or health care

provider, the trial court shall dismiss claimant’s claim. Tex. Civ. Prac. & Rem. Code §

74.351(b) (Vernon 2011). On appeal, Defendant-Appellant does not challenge the

sufficiency of Plaintiff-Appellee’s expert report; instead, Defendant-Appellant

challenges the timeliness of Plaintiff-Appellee’s service of his expert report.

Defendant-Appellant’s attack on the timeliness of Plaintiff-Appellee’s expert report is

not sustainable as a matter of law because he timely served Dr. Stefan Konasiewicz

after suing him.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  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. The original petition was filed in June 2012 and amended later that same month and
is thus governed by the prior version of the statute, which required service of the expert report
within 120 days following the filing of the original petition. All references to Chapter 74 contained
herein refer to the 2011 version of the statute applicable to this suit unless otherwise noted.

	                                                                                                                                                                                                                                                     9
       A.     Plaintiff-Appellee is Entitled to a Presumption of Timely Service.

       Texas Rule of Civil Procedure Rule 21a states that notices and other documents

may be served, among other means, by certified mail. Tex. R. Civ. P. 21a. When a

document is served by certified mail, service is "complete upon deposit of the paper,

enclosed in a postpaid, properly addressed wrapper, in a post office or official

depository under the care and custody of the United States Postal Service." Kendrick v.

Garcia, 171 S.W.3d 698, 704 (Tex. App.-Eastland 2005, pet. denied) (emphasis added).

When service is accomplished, a "certificate by a party or an attorney of record . . .

showing service of a notice shall be prima facie evidence of the fact of service." See

Lease Fin. Group, LLC v. Childers, 310 S.W.3d 120, 126 (Tex. App.—Fort Worth 2010,

no pet.); see also Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (stating that the

presumption of proper service under rule 21a, unless rebutted "by an offer of proof

of nonreceipt," has the "force of a rule of law") (citing Southland Life Ins. Co. v.

Greenwade, 159 S.W.2d 854, 857 (1942)). Here, the presumption of timely service is

supported by both Ms. Porter Stoner’s affidavit and Ms. Porter Stoner’s testimony.

Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (“A certificate by a party or an

attorney of record, or the return of the officer, or the affidavit of any person showing service

of a notice shall be prima facie evidence of the fact of service.”) (citing Tex. R. Civ. P.

21a) (emphasis added).

       There is evidence in the form of both affidavit and live testimony, that service

was effectuated on that date. Specifically, Plaintiff-Appellee provided the Court with


	                                            10
the May 3, 2013 affidavit of Ms. Porter Stoner. Ms. Porter Stoner averred that “On

October 17, out of an abundance of precaution, we mailed the Chapter 73 expert

report to Dr. Konasiewicz at the following addresses:

       d.      Stefan Konasiewicz
               1227 3rd Street
               Corpus Christi, Texas 78404-2313

       e.      Stefan Konasiewicz
               1400 Ocean Dr. Apt. 904C
               Corpus Christi, Texas 78404-2196

       f.      Stefan Konasiewicz
               William Beaumont
               Army Medical Center
               5005 N. Piedras St.
               El Paso, Texas 79920.”

(CR 250-51.)

       Additionally, Ms. Porter Stoner appeared at the May 8, 2013 hearing on the

motion to dismiss and offered testimony. (2 RR 45-50.) Ms. Porter Stoner testified

that she deposited the articles containing the expert report at the post office on

October 17, 2012. (2 RR 46.) She further confirmed that the articles were sent to Dr.

Konasiewicz via certified mail, return receipt requested and that postage was prepaid.

(2 RR 47.) The letters accompanying the expert report were dated “October 17,

2012,” (CR 307, 309, 311), and the mailing envelopes of the articles, which

Defendant-Appellant himself submitted into evidence, likewise reflect a date of

October 17, 2012. (CR 306, 308, 310).




	                                       11
       Although Defendant-Appellant questions the veracity of Ms. Porter Stoner’s

testimony regarding when and where she deposited the articles, the plain fact of the

matter is that, in this instance, the court—not the parties—determines the credibility

of the witnesses. See Miller v. Kennedy & Minshew Prof. Corp., 80 S.W.3d 161, 166 (Tex.

App.—Fort Worth 2002, pet. denied) (“[A]t a contested evidentiary hearing, the trial

court is the sole judge of the credibility of the witnesses and may believe or disbelieve

any part of the witnesses’ testimony.”). The trial court’s determination in this regard

is entitled to deference and this Court “may not reverse for an abuse of discretion

merely because it disagrees with the trial court’s decision if that decision was within

the trial court’s discretionary authority.” Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d

123, 134 (Tex. 1996). In the instant case, the trial court was presented with evidence

that arguably fell on both sides of the issue, but the trial court was free to weigh that

evidence in the manner that it did and the conflicting evidence is not so great as to

warrant reversal. See id. Ms. Porter Stoner’s affidavit, her live testimony, and the

dates on the envelopes’ postage all support Plaintiff-Appellee’s position and, taken

together, this evidence is both sufficient to create a presumption of timely service and

to support the trial court’s determination that Plaintiff-Appellee’s expert report was

mailed on October 17, 2012. See id. (“An abuse of discretion does not exist if the trial

court bases its decision on conflicting evidence and some evidence reasonably

supports the trial court’s decision.”).




	                                         12
       B.     Defendant-Appellant Did Not Rebut the Presumption of Timely
              Service.

       Once Plaintiff-Appellee’s case was imbued with the presumption of timely

service, Defendant-Appellant was required to rebut the presumption with an offer of

proof negating service. He failed to rebut that presumption.

       First, the Texas Supreme Court has held that the presumption of service under

Rule 21a from a party's certificate of service "vanishes when opposing evidence is

introduced that [a document] was not received." In re E.A., 287 S.W.3d 1, 5 (Tex. 2009)

(emphasis added) (quoting Cliff, 724 S.W.2d at 780); see also Tex. R. Civ. P. 21a

("Nothing herein shall preclude any party from offering proof that the notice or

instrument was not received . . . .") (emphasis added). Yet, the presumption does not

“vanish” here because it is undisputed that Defendant-Appellant actually

received Plaintiff-Appellee’s expert report. See (CR 251); see also (2 RR 23, 3 RR

20.) The date of that receipt says nothing about the date of deposit—and it is the

latter that controls. See, e.g., Tex. R. Civ. P. 21a. For that reason, In re E.A. and Cliff v.

Huggins are wholly inapplicable. See In re E.A., 287 S.W.3d at 5 (Tex. 2009); see also

Cliff v. Huggins, 724 S.W.2d at 780.

       Second, as outlined above, Plaintiff-Appellee timely served his expert report via

certified mail return receipt requested on the 120th day after filing his petition. See

supra PART I.A. Relying upon the postmark and affidavit of Birrenkott, Defendant-

Appellant argues that the envelope was not “accepted” by the United States Postal


	                                           13
Service until October 18, 2012. However, the rule of law for service in Texas is based

on when the mail is “deposited” and not the USPS.com “accepted” rule. Tex. R. Civ.

P. 21.     None of Defendant-Appellant’s authorities purport to alter Rule 21a's

unambiguous language that service by certified mail is "complete upon deposit of the

paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official

depository." Tex. R. Civ. P. 21a (emphasis added).

         Third, Defendant-Appellant’s contention that an October 18, 2012 postmark

should overcome the prima facie presumption, created by the certificate of service and

Ms. Porter Stoner’s affidavit and testimony, is unsupportable.          For example, in

McQuade v. Berry, the Second Court of Appeals determined that under Tex. R. Civ. P.

21a, the plaintiff’s certificate of service constituted prima facie evidence that he served

the expert report on a defendant on November 22, and that under the facts of the

case, the defendant’s evidence of a November 23 postmark did not obligate the trial

court to find that the prima facie presumption had been overcome. McQuade v. Berry,

2012 Tex. App. LEXIS 10065 (Tex. App. –Fort Worth 2012, no pet.). The Second

Court upheld the trial court’s judgment, finding that the plaintiff timely served the

expert report on November 22 and that the trial court correctly denied the

defendant’s motion to dismiss alleging untimely service. Id. at 14; see also Pentico v.

Mad-Wayler, Inc., 964 S.W.2d 708, 718 n.7 (Tex. App.-Corpus Christi 1998, pet.

denied) ("Although the rules of procedure view postmarks as prima facie evidence of

the date of mailing for purposes of filing documents with the court, . . . postmarks are

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not conclusive evidence of the date an item was mailed in other contexts."). Because

Defendant-Appellant failed to rebut the presumption of service, the trial court’s

judgment should be upheld.

II.    THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT
       THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW.


       The Defendant-Appellant additionally argues that the trial court’s 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.” Defendant-Appellant’s Brief at xii. Not so. The trial court’s Findings

and Conclusions in dispute are as follows:

       Finding of Fact Number 6:

       On October 17, 2012, Plaintiff-Appellee 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, Texas. The expert
       report was served on Dr. Konasiewicz postage paid by certified mail,
       return receipt requested.

       Finding of Fact Number 7:

       Plaintiff-Appellee has provided an affidavit of Nicole Porter Stoner
       dated May 3, 2013, and the testimony of Nicole Porter Stoner at the May
       8, 2013 hearing confirming service of the Chapter 74 expert report on
       Defendant Konasiewicz by depositing the same with the United States
       Postal Service postage paid on October 17, 2012. The Stoner Affidavit
       and testimony are prima facie evidence that Plaintiff-Appellee’s Chapter
       74 expert report was served on Dr. Stephen Konasiewicz on October 17,
       2012, which is within the 120-day deadline established by Tex. Civ. Prac.
       & Rem. Code § 74.351 for service of expert reports. McQuade v. Berry,
       2012 Tex. App. LEXIS 10065 (Tex. App.—Fort Worth 2012, no pet.)


	                                           15
       (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 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.”).

       Conclusion of Law Number 17:

       Plaintiff-Appellee served his Chapter 74 expert report, by certified mail,
       on Defendant Dr. Stephen Konasiewicz by depositing it into the mail on
       October 17, 2012, in accordance with Texas Rule of Civil Procedure 21a.
       When a document is served by certified mail, service is “complete upon
       deposit of the paper, enclosed in a postpaid, 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).

(Supp. CR 14, 15, 17.)

       The trial court correctly concluded, based upon its review of the evidence filed

and its review of the law that Plaintiff-Appellee timely served his expert report.

Notably, a finding of fact by the trial court, not assailed on appeal, is entitled to the

same deference as a jury’s finding and is binding on the reviewing court, provided the

finding is authorized by law. See, e.g., Puri v. Mansukhani, 973 S.W.2d 701 (Tex. App.—

Houston [14th Dist.] 1998). As explained in great detail above, the trial court’s legal

conclusion is legally sound. See supra Part I.A.-B. The trial court’s factual conclusions,

based upon the evidence presented and testimony of the witnesses, are not against the

great weight and preponderance of the evidence as to be manifestly unjust. See Puri,

973 S.W.2d at 701; see also Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—

	                                          16
Dallas 2003, pet. denied) (“[W]e will sustain the findings if there is sufficient evidence

to support them, and we will review the legal conclusions drawn from the facts found

to determine their correctness.”). Further the trial court judge, acting as the trier of

fact, was entitled to disbelieve Mr. Birrenkott. See, e.g., Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 512 (1984) (“When the testimony of a witness is not believed,

the trier of fact may simply disregard it.”). Here, the trial court judge simply resolved

the conflicting affidavits of Ms. Porter Stoner and Mr. Birrenkott and accepted Ms.

Porter Stoner’s affidavit over Mr. Birrenkott’s, as he was entitled to do. See id.

Accordingly, the findings of fact and conclusion of law are legally and factually

sufficient.




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                                  CONCLUSION

       Plaintiff-Appellee presented prima facie evidence that Defendant-Appellant Dr.

Konasiewicz was served on October 17, 2012 in accordance with Rule 21a.

Defendant-Appellant did not rebut that presumption of timely service. The evidence

and law support the trial court’s Findings of Fact and Conclusion of Law, and the trial

court’s judgment should be affirmed.

                                                     Respectfully Submitted,

                                                     /s/Marion M. Reilly

                                                     Robert C. Hilliard
                                                     State Bar No. 09677700
                                                     bobh@hmglawfirm.com
                                                     Catherine D. Tobin
                                                     State Bar No. 24013642
                                                     catherine@hmglawfirm.com
                                                     John B. Martinez
                                                     State Bar No. 24010212
                                                     john@hmglawfirm.com
                                                     T. Christopher Pinedo
                                                     State Bar No. 00788935
                                                     cpinedo@hmglawfirm.com
                                                     Marion Reilly
                                                     State Bar No. 24079195
                                                     marion@hmglawfirm.com

                                                     HILLIARD MUÑOZ GONZALES LLP
                                             719 S. Shoreline Boulevard
                                             Suite 500
                                             Corpus Christi, TX 78401
                                             Telephone No.: (361) 882-1612
                                             Facsimile No.: (361) 882-3015
                                 ATTORNEYS FOR PLAINTIFF-APPELLEE



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                          RULE 9.4(I) CERTIFICATION

       In compliance with the Texas Rules of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this brief, excluding those matters listed in Rule 9.4(i)(1),

is 4,309.

                                                 /s/ Marion M. Reilly
                                                 Marion M. Reilly




                            CERTIFICATE OF SERVICE
       I certify that a copy of the foregoing Plaintiff-Appellee’s Brief was served via

the electronic filing system on the following:


Diana L. Faust
Cooper & Scully, P.C.
900 Jackson St. #100
Dallas, TX 75202

Richard Wager
Patterson and Wagner
7550 I-10 West, Suite 500
San Antonio, TX 78229

Mr. Richard C. Woolsey
Woolsey and Associates
555 N. Carancahua, Suite 1101
Corpus Christi, Texas 78401
                                                 /s/ Marion M. Reilly
                                                 Marion M. Reilly




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