                                                                                  ACCEPTED
                                                                              13-15-00061-CV
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                         5/12/2015 4:50:39 PM
                                                                            DORIAN RAMIREZ
                                                                                       CLERK




               ORAL ARGUMENT REQUESTED               FILED IN
                                             13th COURT OF APPEALS
                      NO.   13-15-00061-CVCORPUS CHRISTI/EDINBURG, TEXAS
                                              5/12/2015 4:50:39 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.
                        JUAN GARZA,
                          Appellee.


 On Appeal from County Court at Law No. 1, Nueces County, Texas
                 Cause No. 2012-CCV-61202-1
                   (Hon. Robert J. Vargas)


                REPLY 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
                                      TABLE OF CONTENTS

                                                                                                               Page

TABLE OF CONTENTS........................................................................................ i

TABLE OF AUTHORITIES ................................................................................. ii

ARGUMENT AND AUTHORITIES IN REPLY ...................................................1

I.      Objection to Appellee’s Statement of Facts and Motion to Strike .................1

II.     Appellee’s Report Was Untimely..................................................................2

        A.      Appellee First Asserted a Health Care Liability Claim Against
                Appellant in the Original Petition .......................................................2

        B.      Zanchi v. Lane Supports That 120-day Period for Service of
                Expert Report Began Running when Appellant Was Named and
                Sued in the Original Petition ...............................................................8

        C.      Dr. Mathew Alexander Was Named in the Original Petition;
                Alternatively, Appellee Simply Misnamed Him..................................9

        D.      Appellee’s Expert Report Faxed After 5:00 p.m. Was Late;
                There Is No Due Diligence Exception for Service of Expert
                Reports .............................................................................................14

III.    There Is Legally and Factually Insufficient Evidence to Support the
        Trial Court’s Findings of Fact and Conclusions of Law ..............................21

CONCLUSION & PRAYER ................................................................................24

CERTIFICATE OF COMPLIANCE ....................................................................26

CERTIFICATE OF SERVICE..............................................................................27




                                                         i
                                  TABLE OF AUTHORITIES

Case                                                                                               Page(s)

AmeriPath, Inc. v. Hebert,
  447 S.W.3d 319 (Tex. App.—Dallas 2014, pet. denied)................................... 10

Badiga v. Lopez,
  274 S.W.3d 681 (Tex. 2009) .................................................................18, 20, 24

Bioderm Skin Care, LLC v. Sok,
  426 S.W.3d 753 (Tex. 2014) .............................................................................. 7

Brown v. The State Bar of Texas,
  960 S.W.2d 671 (Tex. App.—El Paso 1997, no writ)....................................... 22

Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC,
  372 S.W.3d 200 (Tex. App.—Texarkana 2012, no pet.)................................... 11

Cameron County Drainage Dist. No. 5 v. Gonzales,
  69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) .............................. 23

Carlisle v. Philip Morris, Inc.,
  805 S.W.2d 498 (Tex. App.—Austin 1991, writ denied).................................... 2

City of Corpus Christi v. Taylor,
  126 S.W.3d 712 (Tex. App.—Corpus Christi 2004, pet. withdrawn) ............... 22

City of Keller v. Wilson,
  168 S.W.3d 802 (Tex. 2005) .......................................................................21, 22

Daybreak Comm. Servs., Inc. v. Cartrite,
  320 S.W.3d 865 (Tex. App.—Amarillo 2010, no pet.)............................3, 12, 13

Dezso v. Harwood,
  926 S.W.2d 371 (Tex. App.—Austin 1996, writ denied)................... 6, 10, 11, 12

Douglas v. KPH Consolidation, Inc.,
  No. 14-12-01016-CV, 2013 WL 5883852
  (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.).................................. 4



                                                     ii
Enserch Corp. v. Parker,
  794 S.W.2d 2 (Tex. 1990)................................................................................ 11

Espeche v. Ritzell,
  123 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) .............. 4

Estate of Regis v. Harris Cnty. Hosp. Dist.,
  208 S.W.3d 64 (Tex. App.-Houston [14th Dist.] 2006, no pet.) ....................... 18

F.R. Hernandez Constr. & Supply Co., Inc. v. Nat’l Bank of Commerce of
  Brownsville,
  578 S.W.2d 675 (Tex. 1979) .......................................................................16, 17

Harrell v. Alvarez,
  46 S.W.3d 483 (Tex. App.—El Paso 2001, no pet.) ......................................... 16

Hayes v. Carroll,
  314 S.W.3d 494 (Tex. App.—Austin 2010 no pet.)............................................ 3

Herrera v. Seton Nw. Hosp.,
  212 S.W.3d 452 (Tex. App.—Austin 2006, no pet.)......................................... 15

Huntley v. Enon Ltd. P'ship,
  197 S.W.3d 844 (Tex. App.—Fort Worth 2006, no pet.).................................. 24

In re Greater Houston Orthopaedic Specialists, Inc.,
   295 S.W.3d 323 (Tex. 2009) ............................................................................ 10

Katz v. Rodriguez,
  563 S.W.2d 627 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.) ........ 23

Kendrick v. Garcia,
  171 S.W.3d 698 (Tex. App.—Eastland 2005, pet. denied) ..........................15, 18

Key v. Muse,
  352 S.W.3d 857 (Tex. App.—Dallas 2011, no pet.) ......................................... 19

Kingwood Specialty Hosp., Ltd. v. Barley,
  328 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2010, no pet.)..................... 3




                                                     iii
Lal v. Harris Methodist Fort Worth,
  230 S.W.3d 468 (Tex. App.—Fort Worth 2007, no pet.).................................. 21

Loaisiga v. Cerda,
  379 S.W.3d 248 (Tex. 2012) .............................................................................. 6

Marks v. St. Luke's Episcopal Hospital,
 319 S.W.3d 658 (Tex. 2010) .............................................................................. 7

Marshall v. Housing Auth. of the City of San Antonio,
 198 S.W.3d 782 (Tex. 2006) .............................................................................. 1

McKenzie v. Carte,
 385 S.W.2d 520 (Tex. Civ. App.—Corpus Christi 1964, writ ref'd n.r.e.) ...16, 17

Mitchell v. Berry,
  No. 05-06-01328-CV, 2007 WL 4111923
  (Tex. App.—Dallas Nov. 20, 2007, pet. struck) ................................................. 1

Nexion Health at Beechnut, Inc. v. Paul,
  335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.).. 14, 19, 20, 24

Nolan v. Hughes,
  349 S.W.3d 209 (Tex. App.—Dallas 2011, no pet.) ........................................5, 6

Offenbach v. Stockton,
  285 S.W.3d 517 (Tex. App.—Dallas 2009)...................................................... 17

Ogletree v. Matthews,
  262 S.W.3d 316 (Tex. 2007) ............................................................................ 24

Osonma v. Smith,
  No. 04-08-00841-CV, 2009 WL 1900404
  (Tex. App.—San Antonio 2009, pet. denied) ..................................................... 3

Otero v. Alonzo,
  No. 13-10-00304-CV, 2011 WL 765673
  (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) .......................................... 14

Padre Behavioral Health Sys., LLC v. Chaney,
  310 S.W.3d 78 (Tex. App.—Corpus Christi 2010, no pet.) ................................ 3


                                                     iv
Pinnacle Homes Inc. v. R.C.L. Offshore Eng'g Co.,
  640 S.W.2d 629 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.).16, 17

Quick v. City of Austin,
  7 S.W.3d 109 (Tex. 1998)................................................................................ 24

Ray v. Farmers' State Bank of Hart,
  576 S.W.2d 607 (Tex. 1979) ............................................................................ 22

Reddy v. Hebner,
  435 S.W.3d 323 (Tex. App.—Austin 2014, pet. filed) ..................................... 19

Rio Grande Valley Vein Clinic, P.A. v. Guerrero,
  431 S.W.3d 64 (Tex. 2014)................................................................................ 6

Salinas v. Dimas,
  310 S.W.3d 106 (Tex. App.—Corpus Christi 2010, pet. denied)...................... 15

Shah v. Moss,
  67 S.W.3d 836 (Tex. 2001).............................................................................. 19

SSC Robstown Operating Co. LP v. Perez,
  No. 13-12-00318-CV, 2013 WL 1838597
  (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) .............................20, 21

Stockton v. Offenbach,
  336 S.W.3d 610 (Tex. 2011) ..................................................... 15, 16, 18, 19, 20

Stroud v. Grubb,
   328 S.W.3d 561 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)..2, 3, 12, 13

Tenet Hospital Ltd. v. Rivera,
  445 S.W.3d 698 (Tex. 2014) ............................................................................ 19

Univ. of Tex. Health Science Ctr. at Houston v. Gutierrez,
  237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)............... 15

Yancy v. United Surgical Partners Int'l, Inc.,
  236 S.W.3d 778 (Tex. 2007) ............................................................................ 19




                                                     v
Zanchi v. Lane,
  408 S.W.3d 373 (Tex. 2013) ...............................................................8, 9, 11, 19

Statutes                                                                                                   Page(s)

TEX. CIV. PRAC. & REM. CODE §§ 74.001-.507 (Vernon 2011) .............................. 1

TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011) ................. 2, 8, 9, 18, 24

TEX. CIV. PRAC. & REM. CODE § 74.351(b) (Vernon 2011).........................8, 21, 25

TEX. CIV. PRAC. & REM. CODE § 74.351(c) (Vernon 2011) .................................. 18

Rules                                                                                                      Page(s)

TEX. R. APP. P. 38.1(h)........................................................................................... 1

TEX. R. CIV. P. 21a..........................................................................................14, 15

TEX. R. CIV. P. 299..........................................................................................15, 17

TEX. R. EVID. 402 .................................................................................................. 1

TEX. R. EVID. 403 .................................................................................................. 1

TEX. R. EVID. 801 .................................................................................................. 1

TEX. R. EVID. 802 .................................................................................................. 1




                                                         vi
                                   NO. 13-15-00061-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.
                                      JUAN GARZA,
                                        Appellee.


      On Appeal from County Court at Law No. 1, Nueces County, Texas
                      Cause No. 2012-CCV-61202-1
                        (Hon. Robert J. Vargas)


                           REPLY 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 Reply

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 Reply to the Brief of

Appellee1 Juan Garza (“Appellee”), Appellant respectfully represents as follows:2

1
       Appellant will cite his opening brief as “Br.” and the Brief of Appellee as “Resp.”



                                               vii
2
        Appellant stands on the arguments and legal authority presented in his primary brief.
Thus, to the extent Appellant may not reply herein to a particular assertion or argument or
citation by Appellee, such conduct should not be construed as acquiescence by Appellant in any
of Appellee’s arguments or waiver by Appellant of any argument made in his Brief of Appellant
or in this Reply Brief.



                                             viii
                 ARGUMENT AND AUTHORITIES IN REPLY

       Appellee missed the deadline for serving Chapter 743 expert reports.

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

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

Appellant’s Second Motion to Dismiss, dismiss Appellee’s claims with prejudice,

and remand for a determination of Appellant’s reasonable attorney’s fees and costs

of court.

I.     Objection to Appellee’s Statement of Facts and Motion to Strike

       Appellant stands by his statement of facts in his opening brief. Appellant

objects to Appellee’s reference to an external webpage on page 2 of Appellee’s

Statement of the Facts. This webpage was not offered or in evidence before the

trial court, nor should it have been. It is hearsay, irrelevant to the issues before the

trial court and this Court, and highly improper where it obviously was included to

prejudice Appellant before this Court. See TEX. R. EVID. 402, 403, 801, 802.

Appellant moves that the Court strike those portions of Appellee’s brief or, at a

minimum, refuse to consider those references. See Mitchell v. Berry, No. 05-06-

01328-CV, 2007 WL 4111923, at *3 (Tex. App.—Dallas Nov. 20, 2007, pet.

struck) (refusing to consider appellant’s factual assertions unsupported by the

record (citing TEX. R. APP. P. 38.1(h); Marshall v. Housing Auth. of the City of

3
       TEX. CIV. PRAC. & REM. CODE §§ 74.001-.507 (Vernon 2011).



REPLY BRIEF OF APPELLANT                                                          PAGE 1
San Antonio, 198 S.W.3d 782, 789 (Tex. 2006))); Carlisle v. Philip Morris, Inc.,

805 S.W.2d 498 (Tex. App.—Austin 1991, writ denied) (portion of appellants’

brief (1) citing and quoting from scientific and medical publications which had not

been submitted to trial court and included as part of evidence, and (2) including

“facts” interspersed with disparaging comments about defendants would be

stricken from brief since such materials were outside trial record).

II.    Appellee’s Report Was Untimely

       A.     Appellee First Asserted a Health Care Liability Claim Against
              Appellant in the Original Petition

       Appellee sued Appellant Dr. Mathew Alexander in the Original Petition

filed June 19, 2012. (CR 7-24). Thus, Appellee’s expert reports and curriculum

vitae were due to be served by October 17, 2012, 120 days from the filing of the

Original Petition. See TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011).

       Appellee devotes several pages arguing that the 120-day deadline to serve an

expert report runs from the date the plaintiff first asserted a health care liability

claim against the defendant. (Resp. at 9-11). This argument misses the point.

Appellant does not dispute that the deadline begins running only after claims are

asserted against a particular defendant. See Stroud v. Grubb, 328 S.W.3d 561,

565-66 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

       In every case cited by Appellee, there was no question that claims were first

asserted against the defendant in an amended petition such that the report deadline


REPLY BRIEF OF APPELLANT                                                       PAGE 2
began running with the filing of that petition.       (Resp. at 9-11) (citing Padre

Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78 (Tex. App.—Corpus

Christi 2010, no pet.) (hospital not joined as party until third amended petition);

Hayes v. Carroll, 314 S.W.3d 494, 500 (Tex. App.—Austin 2010 no pet.) (original

petition sued hospital, whereas physicians added in amended petition); Daybreak

Comm. Servs., Inc. v. Cartrite, 320 S.W.3d 865, 871 (Tex. App.—Amarillo 2010,

no pet.) (original petition asserted claims against Daybreak Group, Ltd. Co, a

distinct non-health care provider, whereas amended petition asserted claims against

Daybreak Community Services, Inc., a health care provider); Kingwood Specialty

Hosp., Ltd. v. Barley, 328 S.W.3d 611, 613 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (original petition named physician as sole defendant, and amended

petition later named hospital as additional defendant); Stroud, 328 S.W.3d at 562

(original petition sued Dr. Avendano, whereas fourth amended petition named Dr.

Stroud for the first time); Osonma v. Smith, No. 04-08-00841-CV, 2009 WL

1900404, at *1 (Tex. App.—San Antonio 2009, pet. denied) (original petition

named Methodist Hospital, The Hand Center, and Dr. Person as defendants,

whereas amended petition added Dr. Osonma and his employer)).

       But here, Dr. Mathew Alexander was named and sued in the Original

Petition. (Br. at 14-22). Again, Appellee identified Dr. Mathew Alexander in the

“Parties” to the suit on page two of her Original Petition, stating:



REPLY BRIEF OF APPELLANT                                                     PAGE 3
       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). Noticeably, Appellee never addresses or attempts to

explain away this statement. (See entire Resp.). Nor does Appellee address his

statement in the Original Petition 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.” (CR 8) (emphasis added). And these same

statements were made in Appellee’s First Amended Petition, which Appellee

admits named Dr. Mathew Alexander. (CR 57).

       Appellee attempts to rely largely on the style of the case in the Original

Petition which did not specifically name Dr. Mathew Alexander. (Resp. at 11).

But Texas law does not support that the style of case dictates who has been sued.

Rather, the 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) (“Although Jonathan was not

named in the style of the lawsuit until the first amended petition, his claims as a

third-party beneficiary to the contract were included in Espeche’s original

petition.”); 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.) (the

identity of the parties is determined from the substance of the matter, even though


REPLY BRIEF OF APPELLANT                                                     PAGE 4
that identity may not be accurately reflected by the style of the case). The court

must consider the petition as a whole to determine who is being sued. Nolan v.

Hughes, 349 S.W.3d 209, 212 (Tex. App.—Dallas 2011, no pet.).

       Construing the petition as a whole, it is clear that Appellee intended to sue

Dr. Mathew Alexander, the Dr. Alexander that is president of South Texas Brain

and Spine Center. (CR 7-24). Beyond his description of Dr. Mathew Alexander as

a “Defendant” in the “Parties” section of her Original Petition, Appellee stated:

“All of the actions of each Defendant violated the approximate standard of care for

the relevant healthcare facilities or providers.” (CR 8, 10). And again, there is no

evidence that there exists a “Dr. Lamar Alexander.” At the hearing, Appellee did

not dispute that there is no Dr. Lamar Alexander in Corpus Christi. (See 3 RR 49).

At one point, the trial court acknowledged that “[o]bviously, Mathew Alexander

was named a party . . . .” (3 RR 50).

       Appellee takes issue with Appellant’s reference to the pre-suit notice letter

as evidence of Appellee’s intent to sue Dr. Mathew Alexander. (Resp. at 11 n.2).

Appellee did not object when these letters and the authorizations for release of

protected health information were attached to Appellant’s supplemental brief in

support of the Second Motion to Dismiss.         (See CR 394-401; 3 RR 1-58).

Appellee made no argument before the trial court concerning the effect of these

documents. While courts construe the petition to see who has been sued, Appellee



REPLY BRIEF OF APPELLANT                                                      PAGE 5
offers no law barring a court from looking at additional evidence to determine such

a dispute. In fact, in cases involving misnomer or misidentification, courts have

looked at evidence beyond the pleadings to determine what person or entity has

been sued. See, e.g., Nolan v. Hughes, 349 S.W.3d 209, 212 (Tex. App.—Dallas

2011, no pet.) (looking at pleadings and summary judgment evidence offered by

defendant, including an assumed name certificate and defendant’s affidavit, to

conclude that defendant owned a particular restaurant, and that plaintiff did not file

her first amended petition naming defendant as the owner of the restaurant where

she was injured and defendant was not served and had no knowledge of claims

within the two-year limitations period); Dezso v. Harwood, 926 S.W.2d 371, 374

(Tex. App.—Austin 1996, writ denied) (looking a pleadings, citation, and

testimony to determine that plaintiff intended to sue Elsie Dezso and had simply

misnamed her in the portions of the pleadings and in the citation).

       And, in Chapter 74 cases, Texas courts regularly examine the entire record

and will look to extrinsic evidence to determine whether a claim presents a “health

care liability claim” and whether a party is a “health care provider” as those terms

are defined by the statute. See, e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex.

2012) (when making determination of whether claim is for health care liability,

“courts should consider the entire court record, including the pleadings, motions

and responses, and relevant evidence properly admitted.”); Rio Grande Valley Vein



REPLY BRIEF OF APPELLANT                                                        PAGE 6
Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) (looking not only at

allegations in petition but documentation in evidence showing that plaintiff

completed forms for medical history, informed consent, and medical information

disclosure, indicating she was a patient, and concluding that plaintiff’s claims were

health care liability claims); Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 759

(Tex. 2014) (record established that defendant company was an affiliate of a

physician and thus a “health care provider” under Chapter 74).4

       Otherwise, Appellee makes no attempt to address or explain why the pre-suit

notice letter and authorization for release of protected health information do not

show Appellee’s intent to sue Dr. Mathew Alexander, president of South Texas

Brain and Spine Center. As explained, the pre-suit letter contends that Appellee’s

injuries are a result of the negligence of “Dr. Mathew Alexander, individually and

as president of South Texas [B]rain and [S]pine [C]enter” (CR 342), and the

authorization form for release of protected health information repeatedly refers to

“Dr. Mathew Alexander.” (CR 343-44; see also Br. at 19-20). And, the letter was

dated June 18, 2012, one day before Appellee filed his Original Petition. (CR 341-




4
       Thus, Appellee’s reliance on Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658
(Tex. 2010) is misplaced. (Resp. at 11 n.2).



REPLY BRIEF OF APPELLANT                                                            PAGE 7
42). It is simply disingenuous for Appellee to claim or suggest that he did not

intend to sue Dr. Mathew Alexander all along.5

       Because Appellee sued Dr. Mathew Alexander in the Original Petition on

June 19, 2012, Appellee’s deadline for service of the expert report and curriculum

vitae was October 17, 2012. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon

2011).      Appellee failed to serve a report and curriculum vitae by that date,

requiring dismissal under the statute. Id. § 74.351(b).

       B.      Zanchi v. Lane Supports That 120-day Period for Service of
               Expert Report Began Running when Appellant Was Named and
               Sued in the Original Petition

       Contrary to Appellee’s suggestion, Appellant did not cite and discuss Zanchi

v. Lane to support that the 120-day period for serving expert reports is triggered

even though a defendant is not named as a party in the original petition. (Resp. at

12-13) (citing Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013)). Rather, Appellant

discussed Zanchi in response to Appellee’s argument to the trial court that in

determining who was sued, one should only look to the petition that was served on

the defendant. (Br. at 18-19; 3 RR 49-55). According to Appellee, because the




5
        If, as Appellee contends, he did not intend to sue Dr. Mathew Alexander in the Original
Petition, then it is curious that Appellee faxed the report the same day and approximate time
(October 17, 2012, 6:00 p.m.) he claims he was serving reports on other defendants, including
Dr. Konasiewicz, who were undoubtedly named in the Original Petition and for whom October
17, 2012 was the deadline for service of reports. (See CR 171-96, 395; 2 RR 48).



REPLY BRIEF OF APPELLANT                                                                PAGE 8
Original Petition was not served on Appellant, the First Amended Petition should

control the running of the 120-period. (3 RR 49-55).

       But again, whether the Original Petition was served on Dr. Mathew

Alexander does not control when the 120-day period began running. What matters

is whether Dr. Mathew Alexander was named as a party in the Original Petition.

See Zanchi, 408 S.W.3d at 377. Because Appellee named Dr. Mathew Alexander

in the Original Petition and expressly described him as a party in Paragraph 2.4

(CR 8), Dr. Mathew Alexander was “named in a lawsuit” for purposes of the

Chapter 74 expert report requirement. Zanchi, 408 S.W.3d at 377. The Original

Petition was filed June 19, 2012, making the 120-day deadline October 17, 2012.

(CR 7); TEX. CIV. PRAC. & REM. CODE § 74.351(a) (Vernon 2011). There is no

dispute that Appellee served his report on October 18, 2012, one day late. (Br. at

23-26).

       C.     Dr. Mathew Alexander Was Named in the Original Petition;
              Alternatively, Appellee Simply Misnamed Him

       Appellant has argued that Appellee named and sued Dr. Mathew Alexander

in the Original Petition, and that, alternatively, the suit relates back to the Original

Petition due to a misnomer which was obviously intended to refer to Dr. Mathew

Alexander. (Br. at 14-22).

       Appellee now asserts that Appellant cannot use the misnomer doctrine as a

“sword” to compel dismissal of a health care liability claim. (Resp. at 13-14). But


REPLY BRIEF OF APPELLANT                                                          PAGE 9
Appellee was the first to raise the misidentification doctrine (and necessarily the

misnomer doctrine) in response to Appellant’s Second Motion to Dismiss. (CR

209-210 n.1) (asserting that the Original Petition involved a misidentification and

that the First Amended Petition cannot relate back to the date of the Original

Petition). Ironically, Appellee wishes to use misidentification—a doctrine which

normally favors and shields defendants—as a “sword” to claim that he did not sue

Dr. Mathew Alexander in the Original Petition such that the expert report period

did not begin running with that petition.

       Appellee has provided no case law to support that the misnomer or

misidentification doctrines are applicable only in the context of statutes of

limitations, or to protect plaintiffs. (See Resp. at 13-15). Instead, Texas courts

have examined and applied (or refused to apply) the doctrines in multiple contexts.

See, e.g., In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323,

326 (Tex. 2009) (plaintiff’s misnomer of itself did not negate non-suit and later

motion for non-suit with correct name related back to the original notice of non-

suit containing the misnomer); AmeriPath, Inc. v. Hebert, 447 S.W.3d 319, 334

(Tex. App.—Dallas 2014, pet. denied) (examining and applying misnomer doctrine

in contract interpretation and holding that plaintiff could not escape non-compete

agreement based on mere misnomer of defendant employer in the contract); Dezso

v. Harwood, 926 S.W.2d 371, 374 (Tex. App.—Austin 1996, writ denied)



REPLY BRIEF OF APPELLANT                                                    PAGE 10
(refusing to apply misidentification doctrine to save defendant from a default

judgment, though defendant was misnamed in citation and portions of the petition).

       Appellee also contends that misnomer is not applicable because Appellant

was not served with the Original Petition. (Resp. at 14-15). But again, this Court

must look at the petitions—regardless of whether they were served—to determine

when the 120-day period for service of expert reports commenced. See Zanchi,

408 S.W.3d at 377. Because of this rule, it is appropriate to examine whether, if

Dr. Mathew Alexander had been served with the Original Petition, he would have

been on notice of a claim against him. If Dr. Mathew Alexander had been served

with the Original Petition, the same misnomer issue would arise. See Dezso v.

Harwood, 926 S.W.2d 371, 373 (Tex. App.—Austin 1996, writ denied) (“When

the correct defendant is served under the wrong name the case is not one of

misidentification but rather misnomer.”) (citing Enserch Corp. v. Parker, 794

S.W.2d 2, 4–5 (Tex. 1990)); Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC,

372 S.W.3d 200, 214 (Tex. App.—Texarkana 2012, no pet.) (part of the reason

misnomer may apply is because the party intended to be sued has been served and

put on notice that he is the intended defendant) (emphasis added).

       A person receiving the Original Petition would have been on notice that

Appellee’s claims were based on treatment through South Texas Brain and Spine

Center. (CR 8-15). Only Dr. Mathew Alexander is the president of South Texas



REPLY BRIEF OF APPELLANT                                                   PAGE 11
Brain and Spine Center; there is no evidence of a “Dr. Lamar Alexander” that is

president of South Texas Brain and Spine Center.          (See CR 253; 3 RR 49).

Appellee knew and indicated that Dr. Mathew Alexander was the registered agent

for the Center. (CR 8). Appellee described “Defendant Dr. Mathew Alexander” as

one of the “Parties” and stated that “All of the actions of each Defendant violated

the approximate standard of care for the relevant healthcare facilities or providers.”

(CR 8, 11). No rational defendant named Dr. Mathew Alexander and associated

with South Texas Brain and Spine Center would have ignored this petition had it

been served, because it could have resulted in a default judgment. See Dezso, 926

S.W.2d at 374 (upholding default judgment against Elsie Dezso and rejecting her

claims of misidentification, where although citation and portions of petition

misnamed Elsie Dezso as “Judi Dezso,” allegations in petition made clear that

Elsie Dezso’s business formed the basis of the plaintiff’s lawsuit, and “Elsie Dezso

should have logically concluded that Harwood intended to sue her and that he had

simply misnamed her.”).

       And Appellee’s reliance on Daybreak Community Services, Inc. v. Cartrite,

320 S.W.3d 865 (Tex. App.—Amarillo 2010, no pet.) and Stroud v. Grubb, 328

S.W.3d 561 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) is misplaced.

(Resp. at 15-16). In Cartrite, the plaintiff originally sued “Daybreak Group, Ltd.

Co.” Cartrite, 320 S.W.3d at 866-67. But the parties later entered a Rule 11



REPLY BRIEF OF APPELLANT                                                       PAGE 12
agreement allowing the plaintiff to amend her petition to substitute the correct

defendant, “Daybreak Community Services, Inc.”            Id. at 867.    The parties

recognized that the two companies were separate and distinguishable entities, with

Daybreak     Group     merely   providing   “financial,   accounting,   payroll   and

administrative support services,” whereas Daybreak Community Services was a

health care provider. Id. at 873. The court did not find—as Appellee states—that

the “plaintiff’s misidentification of the defendant entitled her to a new 120-day

deadline.” (Resp. at 16). It was the defendant, not the plaintiff, who pushed the

misidentification doctrine, which the court did not adopt. Rather, the court held

that “[w]hen Cartrite filed her first amended petition on July 6, 2009, alleging

health care liability claims for the first time against Daybreak Community

Services, Inc., a health care provider, she was entitled to have 120 days from the

filing of that petition in which to serve Nurse Foster's expert report and curriculum

vitae.” Id. And Stroud simply involved a case where the plaintiff originally sued

an existing physician that had performed a cardiac catheterization (Dr. Avendano),

and later amended his petition to add Dr. Stroud, who had performed a triple

coronary artery bypass grafting. Stroud, 328 S.W.3d at 562.

       Neither Cartrite nor Stroud is analogous to the situation here. Again, there

is no evidence that there exists a separate and distinguishable person named “Dr.

Lamar Alexander” that is associated with South Texas Brain and Spine Center and



REPLY BRIEF OF APPELLANT                                                      PAGE 13
that Appellee intended to sue. Appellee did not add a new person or entity when

he “saw [his] mistake and corrected it through an amended petition.” (3 RR 49).

He simply corrected the typographical errors in the Original Petition that

misnamed Dr. Mathew Alexander. Because Appellee named and sued Appellant

in the Original Petition, or alternatively, misnamed him such that the amended

petition relates back, the expert reports were due to be served no later than October

17, 2012. Appellee missed that deadline.

       D.     Appellee’s Expert Report Faxed After 5:00 p.m. Was Late; There
              Is No Due Diligence Exception for Service of Expert Reports

       There is no dispute that Appellee faxed Dr. Barrash’s report after 5:00 p.m.

on October 17, 2012. (CR 396) (admitting that report was faxed at approximately

6:00 p.m. on October 17th). Under Rule 21a and Texas case law, the report is

deemed to have been served the next day, October 18th, rendering it one day late.

TEX. R. CIV. P. 21a; Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716

(Tex. App.—Houston [14th Dist.] 2011, no pet.)).

       Appellee contends that service of the report—even after 5:00 p.m. on the last

day of the deadline—was timely because a due diligence exception applies. (Resp.

at 16-19). Appellee first asserts that Chapter 74 “does not define how a plaintiff

must serve an expert report on a defendant.” (Resp. at 16-17). But this Court and

others have established that service of expert reports under section 74.351(a) must

comply with Rule 21a. Otero v. Alonzo, No. 13-10-00304-CV, 2011 WL 765673,


REPLY BRIEF OF APPELLANT                                                      PAGE 14
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)); Univ. of

Tex. Health Science Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied); Herrera v. Seton Nw. Hosp., 212

S.W.3d 452, 459 (Tex. App.—Austin 2006, no pet.); Kendrick v. Garcia, 171

S.W.3d 698, 703-04 (Tex. App.—Eastland 2005, pet. denied). Rule 21a expressly

provides that documents served by facsimile after 5:00 p.m. are deemed served the

following day. TEX. R. CIV. P. 21a.

       Appellee then urges that a due diligence exception to the 120-day deadline

should apply, based on Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011).

(Resp. at 17-19). Here, in its findings of fact and conclusions of law, the trial court

did not find, conclude, or imply that there is a due diligence exception to the

deadline for service of Chapter 74 expert reports, or that any alleged exception

applies in this case. (See SCR 16-20). The findings of fact and conclusions of law

are wholly silent on this matter, and Appellant asserts that a due diligence

exception cannot be inferred from or deemed part of the trial court’s findings of

fact, conclusions of law, or judgment.

       When a party does not request—and the trial court does not make—findings

on an entire ground of recovery or defense, the appellate court cannot presume that

specific ground of recovery or defense supports the judgment. TEX. R. CIV. P. 299;



REPLY BRIEF OF APPELLANT                                                        PAGE 15
see F.R. Hernandez Constr. & Supply Co., Inc. v. Nat’l Bank of Commerce of

Brownsville, 578 S.W.2d 675 (Tex. 1979)). Where the trial court files findings

which do not establish any element of the grounds of defense, the party relying

upon that defense must file a request for additional findings such as to avoid

waiver of that defense on appeal. McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.

Civ. App.—Corpus Christi 1964, writ ref'd n.r.e.).        An express finding of fact

cannot extend by implication to cover independent grounds of defense. Pinnacle

Homes Inc. v. R.C.L. Offshore Eng'g Co., 640 S.W.2d 629, 630 (Tex. App.—

Houston [14th Dist.] 1982, writ ref’d n.r.e.) (citing F.R. Hernandez Constr., 578

S.W.2d at 679).

       Here, it was Appellee’s burden to request any findings of fact and

conclusions of law addressing the purported due diligence exception to the

statutory deadline found in section 74.351. See Harrell v. Alvarez, 46 S.W.3d 483,

485 (Tex. App.—El Paso 2001, no pet.) (in face of statute of limitations defense, if

there is a fact issue on the question of due diligence of service, plaintiff had burden

to obtain favorable findings); Stockton, 336 S.W.3d at 616-17 (plaintiff failed to

raise fact issue, even if due diligence exception existed). Appellee prepared the

proposed findings of fact and conclusions of law that did not address the due

diligence arguments or application to Chapter 74, and the trial court never added

anything to those prepared findings and conclusions. Compare (CR 440-44) with



REPLY BRIEF OF APPELLANT                                                        PAGE 16
(SCR 16-20). Nor did Appellee make any requests for additional findings of fact

and conclusions of law. And nothing in the reporter’s record shows the trial

court’s intent to apply any due diligence exception to the section 74.351 deadline,

or any intent to rely on a due diligence exception to extend the deadline for service

of the report by fax. (See 2 RR 5-56; 3 RR 5-57). No element of any supposed

due diligence exception was included in the findings of fact, was conclusively

established, judicially admitted, or stipulated to such that in the absence of a

missing element, such element could be deemed. (Id.).

       Thus, Appellee has waived any due diligence argument, and a due diligence

exception cannot be deemed in support of the trial court’s judgment. TEX. R. CIV.

P. 299; F.R. Hernandez Constr., 578 S.W.2d at 679; McKenzie, 385 S.W.2d at 529;

Pinnacle Homes, 640 S.W.2d at 630. But, without waiving his argument that the

court’s findings and conclusions do not support any such exception, Appellant will

address the issue.

       The Texas Supreme Court has not adopted any due diligence exception to

the deadline for serving Chapter 74 expert reports. And Texas courts of appeals

have uniformly held that no exceptions exist for due diligence, accident, or

mistake, especially because the Legislature expressly removed the provision

allowing for extensions of time if the claimant could show an “accident or

mistake” in failing to timely serve a report. See Offenbach v. Stockton, 285



REPLY BRIEF OF APPELLANT                                                      PAGE 17
S.W.3d 517, 521 (Tex. App.—Dallas 2009) (“Unlike former article 4590i, which

gave a claimant two opportunities to seek an extension of time in which to furnish

an expert report, [section] 74.351(a) does not contain a ‘due diligence’ or ‘good

cause’ exception.” (emphasis added) (citations omitted)), aff'd, 336 S.W.3d 610

(Tex. 2011); Estate of Regis v. Harris Cnty. Hosp. Dist., 208 S.W.3d 64, 68 (Tex.

App.-Houston [14th Dist.] 2006, no pet.) (“In repealing article 4590i and enacting

Civil Practice and Remedies Code chapter 74, the legislature specifically removed

the trial court's ability to grant an extension based on a plaintiff’s diligence.”);

Kendrick v. Garcia, 171 S.W.3d 698, 705 (Tex. App.—Eastland 2005, pet. denied)

(“As a result of the omission of the ‘accident or mistake’ exception in Section

74.351, we conclude that the new statute precludes the existence of a good faith

exception to the requirement of timely serving expert reports.”). Rather, section

74.351 creates only two exceptions to the 120–day deadline: (1) the parties agree

to an extension; or (2) the trial court is permitted to grant one thirty-day extension

to the plaintiff to cure a deficient but otherwise timely report. See TEX. CIV. PRAC.

& REM. CODE § 74.351(a), (c); Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009).

Neither exception applies in this case. Contrary to Appellee’s assertion, engrafting

a due diligence exception would indeed frustrate legislative intent and the purpose

of the Legislature’s amendments to Chapter 74.




REPLY BRIEF OF APPELLANT                                                       PAGE 18
       In Stockton v. Offenbach, 336 S.W.3d 610, 615-16 (Tex. 2011)—relied on

by Appellee—the supreme court declined to adopt any due diligence exception.

See Reddy v. Hebner, 435 S.W.3d 323, 330 (Tex. App.—Austin 2014, pet. filed)

(rejecting argument that Stockton court applied concepts of due diligence or

relation-back to service of Chapter 74 reports); Key v. Muse, 352 S.W.3d 857, 862-

63 (Tex. App.—Dallas 2011, no pet.) (declining to apply due diligence doctrine

and recognizing that the Stockton court stopped short of deciding whether a due

diligence exception applies to the expert report deadline), abrogated on other

grounds by Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013). Rather, the Stockton

court noted that, even assuming a due diligence exception existed, the plaintiff

could not show such diligence. Stockton, 336 S.W.3d at 616-17. The plaintiff

knew of the difficulty in serving the defendant and moved for substituted service,

but did not apprise the court of the 120-day deadline or its significance to the

pending motion, and allowed the report deadline to lapse before re-urging the

motion. Id.6

       While Appellee wishes to ignore Nexion Health at Beechnut, Inc. v. Paul,

335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.), the decision is



6
        None of the other cases cited by Appellee established a due diligence exception for
service of Chapter 74 expert reports. (Resp. at 17-18) (citing Tenet Hospital Ltd. v. Rivera, 445
S.W.3d 698, 704-05 (Tex. 2014); Shah v. Moss, 67 S.W.3d 836 (Tex. 2001); Yancy v. United
Surgical Partners Int’l, Inc., 236 S.W.3d 778 (Tex. 2007)).



REPLY BRIEF OF APPELLANT                                                                 PAGE 19
on point. And, the court would have likely rejected any due diligence argument

because it did reject Paul’s argument that her failure to timely serve the report was

not due to any conscious indifference on her part.            Id. at 719 (“[S]uch

circumstances are no longer a defense to untimely service under section 74.351.”)

(citing Badiga v. Lopez, 274 S.W.3d 681, 684 (Tex. 2009)). And that Nexion

Health was issued before Stockton is of no moment. The Stockton court did not

hold that a due diligence exception exists and did not overrule or even address

Nexion Health. See generally, Stockton, 336 S.W.3d 610. And after Stockton, this

Court cited Nexion Health with approval to hold that service of an expert report

one day later requires dismissal under the statute. SSC Robstown Operating Co.

LP v. Perez, No. 13-12-00318-CV, 2013 WL 1838597 (Tex. App.—Corpus Christi

Feb. 28, 2013, pet. denied) (“The Texas Legislature created clear deadlines under

section 74.351. While we recognize this may sometimes result in seemingly harsh

consequences, this Court lacks the authority to extend the statutory deadlines.”)

(citing Nexion Health, 335 S.W.3d at 719).

       Even if a due diligence exception exists—and it does not—no such

exception would apply here. Unlike the allegedly evasive defendant in Stockton,

Appellant had already been served with process, appeared, and answered the suit

almost a month before the 120-day deadline. (CR 74-76). Appellee did not have

to exercise due diligence to find Appellant’s attorney of record to timely serve him



REPLY BRIEF OF APPELLANT                                                      PAGE 20
with an expert report. Thus, Appellee cannot urge that service of the report one or

two days late satisfies non-existent exceptions for due diligence, accident, or

mistake. See Perez, 2013 WL 1838597, at *4; Lal v. Harris Methodist Fort Worth,

230 S.W.3d 468, 472 (Tex. App.—Fort Worth 2007, no pet.) (affirming trial

court’s dismissal where plaintiff faxed expert reports two days after deadline, and

rejecting plaintiff’s argument that she “worked diligently” to provide the report and

that defendants were not prejudiced by the delay).

       Appellee did not serve an expert report by the statutory deadline, requiring

dismissal under the statute. TEX. CIV. PRAC. & REM. CODE § 74.351(b) (Vernon

2011). 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

claims with prejudice, and remand to the trial court for a determination of

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

III.   There Is Legally and Factually Insufficient Evidence to Support the
       Trial Court’s Findings of Fact and Conclusions of Law

       Contrary to Appellee’s assertions, the trial court’s 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. (Br. at 14-25).

       The evidence to support Findings of Fact Numbers 3, 4, 5, and 8 and

Conclusion of Law Number 18 is no more than a mere scintilla. See City of Keller


REPLY BRIEF OF APPELLANT                                                      PAGE 21
v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Appellee offered no evidence to

support that there exists a “Dr. Lamar Alexander” that is president of South Texas

Brain and Spine Center that he intended to sue. More importantly, the evidence

offered by Appellant conclusively established the opposite of the vital fact of the

intended defendant. See City of Keller, 168 S.W.3d at 810. The pleadings, pre-suit

notice letters, and authorizations for release of protected health information

conclusively established that Appellee’s suit was directed at Dr. Mathew

Alexander, the president of South Texas Brain and Spine Center. (CR 341-45).

There is no evidence to support that Appellee did not sue Appellant in the Original

Petition.

       And although deference must be given to the trial court's findings of fact,

that deference will be given only in those instances in which findings of fact are

supported by evidence found in the record. Brown v. The State Bar of Texas, 960

S.W.2d 671, 675 (Tex. App.—El Paso 1997, no writ) (citing Ray v. Farmers' State

Bank of Hart, 576 S.W.2d 607 (Tex. 1979)). Findings of fact are not conclusive

when a complete reporter’s record appears in the appellate record, as in this case.

City of Corpus Christi v. Taylor, 126 S.W.3d 712, 717 (Tex. App.—Corpus Christi

2004, pet. withdrawn).     Only when there is sufficient competent evidence of

probative force to support the finding must it be sustained. Brown, 960 S.W.2d at

675 (emphasis added). When the evidence is so weak or the finding so against the



REPLY BRIEF OF APPELLANT                                                    PAGE 22
great weight and preponderance of the evidence as to be manifestly unjust, a

reviewing court must set aside that finding. See Cameron County Drainage Dist.

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

        Appellee’s statement that “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” is misplaced; Appellant is obviously attacking the factual

findings (Br. at xii-xiii, 13-26), and therefore they are not entitled to such

deference. See Katz v. Rodriguez, 563 S.W.2d 627, 631 (Tex. Civ. App.—Corpus

Christi 1977, writ ref’d n.r.e.) (unless the trial court’s findings of fact are

challenged by point of error on appeal, however, they are binding on the appellate

court).

        Here, the evidence showed that Appellee intended to and did sue Appellant

in the Original Petition on June 19, 2012, such that expert reports were due to be

served no later than October 17, 2012. (CR 7-24; CR 341-45). The evidence

showed that Appellee did not serve reports until October 18, 2012. (CR 171-96,

395).     There is legally insufficient competent evidence of probative force to

support the trial court’s Findings of Fact Numbers 3, 4, 5, and 8, or, alternatively,

the trial court’s findings are so against the great weight and preponderance of the

evidence as to be manifestly unjust such that they must be set aside. See Gonzales,

69 S.W.3d at 825.



REPLY BRIEF OF APPELLANT                                                         PAGE 23
       The trial court’s conclusions of law are reviewed de novo as legal questions,

and thus accorded no deference by a reviewing court. Huntley v. Enon Ltd. P'ship,

197 S.W.3d 844 (Tex. App.—Fort Worth 2006, no pet.) (citing Quick v. City of

Austin, 7 S.W.3d 109, 116 (Tex. 1998)). Based on the evidence before it, the trial

court could come to only one conclusion: that Appellee sued Appellant in the

Original Petition and did not timely serve Dr. Barrash’s report on October 17,

2012. Thus, the trial court erroneously concluded that the operative pleading

asserting a cause of action against Dr. Mathew Alexander was the First Amended

Petition and that service of the report was timely. See Nexion Health at Beechnut,

Inc. v. Paul, 335 S.W.3d 716, 718 (Tex. App.—Houston [14th Dist.] 2011, no

pet.); (See Conclusion of Law No. 18 (SCR 20)). Because Appellee did not timely

serve an expert report, the trial court had no discretion but to dismiss Appellee’s

suit with prejudice. TEX. CIV. PRAC. & REM. CODE §§ 74.351(a), (b); Ogletree v.

Matthews, 262 S.W.3d 316, 319-20 (Tex. 2007); Badiga v. Lopez, 274 S.W.3d

681, 683 (Tex. 2009).

                           CONCLUSION & PRAYER

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

to Dismiss. The pleadings and evidence conclusively established that Appellee

sued Dr. Mathew Alexander in the Original Petition filed on June 19, 2012.

Appellee’s deadline for service of expert reports was October 17, 2012. There is



REPLY BRIEF OF APPELLANT                                                     PAGE 24
no dispute that he served Dr. Barrash’s report on October 18, 2012, one day late,

requiring dismissal of Appellee’s suit under section 74.351(b). This Court should

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

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

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

CIV. PRAC. & REM. CODE § 74.351(b).

       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.




REPLY BRIEF OF APPELLANT                                                  PAGE 25
                                     Respectfully submitted,

                                     COOPER & SCULLY, P.C.


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

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

                                     ATTORNEYS     FOR   APPELLANT
                                     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

6,087 words.

                                      /s/Diana L. Faust
                                     DIANA L. FAUST


REPLY BRIEF OF APPELLANT                                                   PAGE 26
                           CERTIFICATE OF SERVICE

     I hereby certify that I served a true and correct copy of this Reply Brief of
Appellant on the following counsel of record, on the 12th day of May 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
D/926417v2




REPLY BRIEF OF APPELLANT                                                   PAGE 27
