                                                                                ACCEPTED
                                                                           13-15-00060-cv
                                                             THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                      3/19/2015 7:42:43 PM
                                                                         DORIAN RAMIREZ
                                                                                    CLERK




              ORAL ARGUMENT REQUESTED               FILED IN
                                            13th COURT OF APPEALS
                     NO.   13-15-00060-CVCORPUS CHRISTI/EDINBURG, TEXAS
                                             3/19/2015 7:42:43 PM
                                              DORIAN E. RAMIREZ
                                                     Clerk
               IN THE COURT OF APPEALS
             FOR THE THIRTEENTH DISTRICT
               AT CORPUS CHRISTI, TEXAS


               STEFAN KONASIEWICZ, M.D.,
                       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)


                   BRIEF OF APPELLANT


                             Respectfully submitted,
                             COOPER & SCULLY, P.C.
                             DIANA L. FAUST
                             diana.faust@cooperscully.com
                             Texas Bar No. 00793717
                             R. BRENT COOPER
                             brent.cooper@cooperscully.com
                             Texas Bar No. 04783250
                             KYLE M. BURKE
                             kyle.burke@cooperscully.com
                             Texas Bar No. 24073089
                             900 Jackson Street, Suite 100
                             Dallas, Texas 75202
                             (214) 712-9500
                             (214) 712-9540 (fax)
                             ATTORNEYS FOR APPELLANT
                                NO. 13-15-00060-CV


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


                        STEFAN KONASIEWICZ, M.D.,
                                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)


                     IDENTITY OF PARTIES AND COUNSEL


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

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

and their counsel:

Appellant:                       Stefan Konasiewicz, M.D.

Trial Counsel
for Appellant:                   W. Richard Wagner
                                 Peter Cario
                                 Wagner Cario, L.L.P.
                                 7705 Broadway Street
                                 San Antonio, Texas 78209




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

Appellee:               Juan Garza

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




                                ii
                               NO. 13-15-00060-CV


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


                        STEFAN KONASIEWICZ, M.D.,
                                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)


                     REQUEST FOR ORAL ARGUMENT


      Appellant Stefan Konasiewicz, M.D. respectfully requests oral argument in

this case. The issues presented have not previously been considered in the context

of section 74.351 of the Texas Civil Practice and Remedies Code, and thus,

Appellant believes oral argument will aid the Court in evaluating the case and

resolving this appeal. TEX. R. APP. P. 39.1, 39.7.




                                         iii
                                      TABLE OF CONTENTS

                                                                                                                Page

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

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

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

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

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

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

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

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

        B.      Appellee’s Motion for Substituted Service..........................................1

        C.      Appellant’s Objections to Plaintiff’s Expert Report of J. Martin
                Barrash ...............................................................................................2

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

        E.      Appellant’s Supplemental Brief in Support of Objections to
                Appellee’s Expert Report Pursuant to CPRC § 74.351, et seq.............4

        F.      January 6, 2015 Hearing on Motion to Dismiss, Ruling, and
                Appeal ................................................................................................5

SUMMARY OF THE ARGUMENT ......................................................................7

ARGUMENT AND AUTHORITIES .....................................................................9

I.      Appellee Failed To Timely Serve Chapter 74 Expert Reports.......................9

        A.      Standards of Review ...........................................................................9

                1.       Section 74.351 Motions to Dismiss...........................................9


                                                         iv
                       2.      Findings of Fact and Conclusions of Law .....................11

       B.      Chapter 74 Expert Report Requirement ............................................12

       C.      Appellee Did Not Timely Serve Reports Under Rule 21a .................12

               1.      Dr. Konasiewicz’s Evidence Precludes Application of
                       Presumption of Timely Service...............................................15

               2.      Because Appellee Untimely Served the Report, the Trial
                       Court Had No Discretion But to Dismiss Appellee’s Suit
                       With Prejudice ........................................................................24

CONCLUSION AND PRAYER...........................................................................25

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

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

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




                                                     v
                                  TABLE OF AUTHORITIES

Case                                                                                              Page(s)

BMC Software Belgium, N.V. v. Marchand,
 83 S.W.3d 789 (Tex. 2001).............................................................................. 11

Bohannon v. Winston,
  238 S.W.3d 535 (Tex. App.—Beaumont 2007, no pet.) ................................... 23

Cameron County Drainage Dist. No. 5 v. Gonzales,
  69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) .........................11, 24

Christus Spohn Health Sys. Corp. v. Lopez,
  No. 13-13-00165-CV, 2014 WL 3542094
  (Tex. App.—Corpus Christi July 17, 2014, no pet.) (mem. op.).................. 12-13

City of Keller v. Wilson,
  168 S.W.3d 802 (Tex. 2005) .......................................................................11, 24

Cliff v. Huggins,
  724 S.W.2d 778 (Tex. 1987) .......................................................................14, 22
Downer v. Aquamarine Operators, Inc.,
  701 S.W.2d 238 (Tex. 1985) ............................................................................ 10

Doyle v. Grady,
  543 S.W.2d 893 (Tex. Civ. App.—Texarkana 1976, no writ) .......................... 19

Etheredge v. Hidden Valley Airpark Ass'n, Inc.,
  169 S.W.3d 378 (Tex. App.—Fort Worth 2005, pet. denied) ........................... 15

Harris Methodist Fort Worth v. Ollie,
  342 S.W.3d 525 (Tex. 2011) .............................................................................. 9

In re Arnold,
   No. 13-12-00619-CV, 2012 WL 6085320
   (Tex. App.—Corpus Christi, Nov. 30, 2012, no pet.)....................................... 20

In re Prudential Ins. Co. of Am.,
   148 S.W.3d 124 (Tex. 2004) ............................................................................ 10




                                                     vi
Jaffe Aircraft Corp. v. Carr,
  867 S.W.2d 27 (Tex.1993)............................................................................... 11
Larson v. Downing,
  197 S.W.3d 303 (Tex. 2006) (per curiam)........................................................ 10

McAllen Police Officers Union v. Tamez,
 81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism'd)........................ 11

Neiswender v. SLC Constr., LLC,
  No. 13-11-00669-CV, 2012 WL 3046010
  (Tex. App.—Corpus Christi July 26, 2012, pet. denied)........................19, 22, 24
Nexion Health at Beechnut, Inc. v. Paul,
  335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.)..............10, 24

Ogletree v. Matthews,
  262 S.W.3d 316 (Tex. 2007) .......................................................................12, 25

Otero v. Alonzo,
  No. 13-10-00304-CV, 2011 WL 765673
  (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.) ...............................12, 13, 25
Payton v. Ashton,
  29 S.W.3d 896 (Tex. App.—Amarillo 2000, no pet.)..................................14, 23
Rosales v. H.E. Butt Grocery Co.,
  905 S.W.2d 745 (Tex. App.—San Antonio 1995, writ denied) ........................ 20

Salinas v. Dimas,
  310 S.W.3d 106 (Tex. App.—Corpus Christi 2010, pet. denied)...................... 13

Stockton v. Offenbach,
  336 S.W.3d 610 (Tex. 2011) .............................................................................. 9

Texas Beef Cattle Co. v. Green,
  862 S.W.2d 812 (Tex. App.—Beaumont 1993, no writ) .............................20, 23

Unifund CCR Partners v. Weaver,
  262 S.W.3d 796 (Tex. 2008) ............................................................................ 14
Univ. of Tex. Health Sci. Ctr. v. Gutierrez,
  237 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)............... 10


                                                     vii
Waggoner v. Breland,
 No. 01-10-00226-CV, 2011 WL 2732687
 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) .................................. 15

Walker v. Packer,
 827 S.W.2d 833 (Tex. 1992) ............................................................................ 10

Wembley Inv. Co. v. Herrera,
 11 S.W.3d 924 (Tex. 1999).............................................................................. 15

Statutes                                                                                                  Page(s)

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

TEX. CIV. PRAC. & REM. CODE § 74.351(a) ..............................................12, 23, 25

TEX. CIV. PRAC. & REM. CODE § 74.351(b) .....................................................12, 25

TEX. CIV. PRAC. & REM. CODE § 74.351(c) .......................................................... 23

Rules                                                                                                      Page(s)

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

TEX. R. APP. P. 39.7 ............................................................................................. iii
TEX. R. CIV. P. 21a (1990)................................................................... 13, 14, 22, 23

Other Authorities                                                                                          Page(s)

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




                                                         viii
                              NO. 13-15-00060-CV


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


                       STEFAN KONASIEWICZ, M.D.,
                               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)


                           BRIEF OF APPELLANT


TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:

      Appellant Stefan Konasiewicz, M.D. (“Dr. Konasiewicz” or “Appellant”)

submits this Brief of Appellant, in accordance with Rules 9.4 and 38 of the Texas

Rules of Appellate Procedure and all local rules of this Court. In support of this

appeal from the overruling of Appellant’s objections as to the timeliness of the

service of the report, resulting in the denial of Appellant’s request for dismissal

based on the untimely service of the report, Appellant respectfully alleges as

follows:


                                        ix
                           STATEMENT OF THE CASE

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

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

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

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

Konasiewicz, and various other Defendants,1 alleging that Defendants were

negligent in their care and treatment of Appellee. (CR 7-23).2 Appellee amended

his petition on June 27, 2012. (CR 26-42). On November 21, 2012, Appellant

filed Objections to Plaintiff’s Expert’s Report Pursuant to CPRC § 74.351 et seq.,

citing Appellee’s failure to timely serve the Expert Report of J. Martin Barrash.

(CR 157-61).      On May 1, 2013, Appellee filed his Response to Appellant’s

Objections to Chapter 74 Expert Report (CR 233-246). On May 8, 2013, the trial

court held a hearing on Appellant’s objections and request for dismissal, and after

considering the arguments of counsel, took the matter under advisement. (2 RR

54).



1
       Defendant Christus Spohn Health System d/b/a Christus Spohn Hospital Corpus Christi –
Shoreline was dismissed from the case on July 30, 2014 (CR 376), Defendant Melissa Macias,
M.D. was dismissed on January 9, 2015, (CR 407), and Defendant South Texas Brain and Spine
Center was nonsuited on January 28, 2015. (CR 446-47).
2
        Appellant will cite the clerk’s record as ([volume #] CR [page #]), the supplemental
clerk’s record as (SCR [page #]), the reporter’s record as ([volume #] RR [page #]), and the
appendix as (Apx. [Tab letter]).



                                             x
      On July 8, 2014, Appellant filed a Supplemental Brief in Support of

Objections to Plaintiff’s Expert’s Report Pursuant to CRPC § 74.351 et seq. (CR

261-325). Appellee filed a Response in Opposition to Appellant’s Supplemental

Brief on January 2, 2015 (CR 377-393), and on January 6, 2015, the trial court held

an additional hearing on Appellant’s objections and motion to dismiss; after

hearing the arguments of counsel, the court once again took the matter under

advisement.   (3 RR 55).     Following the hearing, the court signed an Order

overruling Appellant’s Objections to Plaintiff’s Expert’s Report Pursuant to CPRC

74.351 et seq. (CR 405). Appellant timely filed his Request for Findings of Fact

and Conclusions of Law (CR 419-23), and on February 17, 2015, the trial court

issued its Findings of Fact and Conclusions of Law (SCR 13-17). Appellant timely

filed his Notice of Accelerated Appeal. (CR 433-35).




                                        xi
                                  ISSUES PRESENTED

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

request for dismissal with prejudice under section 74.351. This issue necessarily

includes the following sub-issues:

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

       following the filing of the original petition.3 Appellee’s deadline for serving

       a report was October 17, 2012. The trial court erred in concluding that

       Appellee timely served an expert report by mailing it on October 17, 2012.

       Dr. Konasiewicz’s evidence conclusively established that the report was

       actually mailed on October 18, 2012. Even if Appellee’s evidence gave rise

       to a presumption of timely service—and it did not—Dr. Konasiewicz

       rebutted that presumption.

               b.     Findings of Fact numbers 6 and 7, and Conclusion of Law

       number 17 are supported by legally and factually insufficient evidence, and

       Conclusion of Law number 17 is legally erroneous, where Dr.

       Konasiewicz’s evidence conclusively established that the section 74.351




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



                                               xii
expert report was actually mailed on October 18, 2012, the 121st day

following the filing of the original petition.




                                    xiii
                            STATEMENT OF FACTS

      A.     Appellee’s Allegations

      On June 19, 2012, Appellee filed his Original Petition asserting claims of

negligence and gross negligence against Dr. Konasiewicz. (CR 7-23). Appellee

alleged that he presented to Dr. Konasiewicz for treatment of back pain. (CR 9).

He alleged that after an initial consultation with Dr. Macias, Dr. Konasiewicz

performed surgery on Appellee on July 27, 2011. (Id.). Appellee alleged he

experienced negative impacts after the surgery. (Id.). Additionally, he alleged that

subsequent examinations by his treating physicians revealed that, in the course of

surgery, Dr. Konasiewicz had left a large mass on his spine, resulting in paralysis

of his legs and other complications. (CR 9-10).

      B.     Appellee’s Motion for Substituted Service

      On September 19, 2012, Appellee filed a Motion for Substituted Service

Pursuant to T.R.C.P. 106(b), advising the trial court that Appellee’s First Amended

Petition and Request for Discovery had not been served on Appellant because the

process server/officer had been unable to locate Appellant, and moving the court to

authorize service either by (1) delivering a true copy of the citation and petition to

anyone over 16 years of age, 1400 Ocean Drive, Apt. 904C, Corpus Christi, TX

78402-2196; or (2) attaching a true copy of the citation and petition securely to the

front entry way at 1400 Ocean Drive, Apt. 904C, Corpus Christi, TX 78402-2196.



BRIEF OF APPELLANT                                                             PAGE 1
(CR 53-54). On October 18, 2012, the trial court signed an Order for Substituted

Service T.R.C.P. 106(b), which ordered:

      IT IS ACCORDINGLY ORDERED that an authorized process
      server/officer that is not a party of this suit nor interested in the
      outcome shall give the Defendant Dr. Stefan Konasiewicz, notice of
      this suit by:

             delivering a true copy of the citation and petition attached, to
      anyone over 16 years of age at 1400 Ocean Drive, Apt 904C, Corpus
      Christi, TX 78404-2196.

      or

             attaching a true copy of the citation and petition securely to the
      front entry way at 1400 Ocean Drive, Apt 904C, Corpus Christi, TX
      78404-2196.

      which will be reasonably effective to give the Defendant, Dr.
      Konasiewicz, notice of this suit.

      IT IS FURTHER ORDERED that the return of the authorized person
      be endorsed on or attached to the citation, stating when and how the
      citation was served and be signed by the authorized person/officer,
      and is to make due return in accordance with the Texas Rules of Civil
      Procedure Rule 107.

(CR 79-80).

      C.      Appellant’s Objections to Plaintiff’s Expert Report of J. Martin
              Barrash

      On November 21, 2012, Appellant filed his Objections to Plaintiff’s

Expert’s Report Pursuant to CPRC § 74.351 et seq., arguing that Appellee served

the purported Chapter 74 expert report of J. Martin Barrash on November 3, 2012,

in an attempt to comply with § 74.351(a) and § 74.351(r)(6) of the Texas Civil



BRIEF OF APPELLANT                                                                PAGE 2
Practice and Remedies Code. (CR 157-61). Appellant urged that Appellee was

obligated to serve Appellant with his Chapter 74 expert report within 120 days

from the filing of Plaintiff’s Original Petition on June 19, 2012, or by October 17,

2012. (CR 158). Therefore, the 120-day report was untimely. (Id.). Additionally,

Appellant argued that Dr. Barrash’s report was deficient and failed to comply with

§ 74.351(r)(6), as it was conclusory as to the standard of care, breach of the

standard of case and causation. (CR 158-59). Appellee responded to Appellant’s

objections on May 3, 2013, in which he argued that he served Appellant at three

different addresses on October 17, 2012, which was the 120-day deadline. (CR

233-37).    Appellee submitted an affidavit by Nicole Stoner, paralegal for

Appellee’s counsel, wherein Ms. Stoner stated she mailed a Chapter 74 expert

report to Dr. Konasiewicz at three different addresses on October 17th. (CR 247-

49).   Additionally, Appellee argued that Texas Rule of Civil Procedure 21a,

providing rules for service by fax and other methods, does not strictly govern

service requirements for expert reports in a health care liability claim. (CR 236-

37). Finally, Appellee argued that Dr. Barrash’s 6-page report complied with the

statutory definition of an “expert report” because it included a fair summary of his

expert opinions of the standards of care, breach and causation. (CR 237-43).




BRIEF OF APPELLANT                                                             PAGE 3
      D.     May 8, 2013 Hearing on Motion to Dismiss

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

motion to dismiss. (2 RR 31-40). Appellant argued that Appellee did not make a

showing of prima facie evidence of delivery to the United States Postal Service

because Appellee did not state anywhere that the expert report was postage-

prepaid. (Id.). In response, Appellee offered the testimony of Nicole Stoner. (2

RR 45). Specifically, Ms. Stoner stated that on October 17, 2012, she mailed the

expert report. (2 RR 46-49). She testified that she affixed postage to the articles

using her office’s postage machine. (2 RR 48). Ms. Stoner 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 conclusion of the hearing, the trial court took the

matter under advisement. (2 RR 54)..

      E.     Appellant’s Supplemental Brief in Support of Objections to
             Appellee’s Expert Report Pursuant to CPRC § 74.351, et seq.

      On July 8, 2014, Appellant filed a supplemental brief in support of his

Objections to Plaintiff’s Expert Report Pursuant to CPRC § 74.351 et seq., to

advise the trial court of the effect of recent supreme court jurisprudence, to provide

evidence that Appellee’s report was untimely, and to supplement his complaints

regarding the sufficiency of the reports. (CR 261-324). Specifically, Appellant

argued that evidence conclusively established that he was not timely served with


BRIEF OF APPELLANT                                                             PAGE 4
an expert report, as the United States Postal Service Track & Confirm results and

the affidavit of Tim Birrenkott, a 24-year employee of the postal service and

current Supervisor of Customer Service Support, proved that Appellee mailed the

report on October 18, 2012. (CR 267-68). Additionally, Appellant argued that at a

minimum, this evidence precluded any application of the presumption of timely

service under Rule 21a.      (CR 268).     Appellee responded to Appellant’s

supplemental brief on January 2, 2015, in which he argued service is complete

upon deposit in a post office or official depository, not upon the placement of a

postmark, and that he presented prima facie evidence of service of the report on

October 17, 2012. (CR 379-80).

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

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

Motion to Dismiss (3 RR 5-57). Appellant argued that Appellee failed to meet his

burden to trigger any presumption of service on October 17th despite Ms. Stoner’s

affidavit and despite her testimony because the postal service interpreted the

meaning of the track and confirm sheets to establish that the certified letters

containing the expert report were actually mailed in Portland, Texas on October

18, 2012. (3 RR 13). Further, Appellant contended that even if the court gave

Appellee the benefit of the doubt and concluded that the evidence provided by the

Stoner affidavit and testimony at the first hearing was prima facie evidence to


BRIEF OF APPELLANT                                                        PAGE 5
support a presumption of service on October 17th, the 120th day, Appellant did not

receive the expert report until November 3, 2012, which was not within the three

days required under Rule 21(a) to support the presumption. (3 CR 13-14).

      Appellee responded that Rule 21(a) states that service by mail or commercial

delivery shall be complete upon deposit of the document in the mail, and that it

matters not when the postal service gets around to stamping the mail. (3 RR 23).

Further, Appellee argued that the rules contemplate that the period starts the

moment that the mail is put in the box, and there is uncontroverted evidence in the

case that the paralegal took the mail and deposited it in the mailbox on the date as

required – October 17th – at the Nueces Bay location, and Appellee gets the benefit

of having done it timely, having done it right, and Appellant’s motion to dismiss

should be denied. (3 RR 24, 33). Appellee urged that the portion of Rule 21a

allowing a party to rebut the presumption of service when the item is not received

within three days does not establish the date of mailing or allow the court to

provide any relief other than extending the time for the receiving party to respond.

(3 RR 34-40).

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

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

Objections to Plaintiff’s Expert’s Report Pursuant to CRPC 74.351 et seq.,

resulting in the denial of Dr. Konasiewicz’s request for dismissal with prejudice



BRIEF OF APPELLANT                                                           PAGE 6
through failure to timely comply with section 74.351(a). (CR 405).4 Appellant

requested findings of fact and conclusions of law on January 16, 2015 (CR 419-23)

and Appellee filed his Proposed Findings of Fact and Conclusions of Law on

January 28, 2015. (CR 439-45). The trial court filed its findings of fact and

conclusions of law on February 17, 2015. (SCR 13-17). Appellant timely filed his

notice of appeal. (CR 433-35).

                         SUMMARY OF THE ARGUMENT

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

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

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

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

defendant within 120 days of the filing of the Original Petition. Numerous courts,

including this Court, have applied Rule 21a to govern the service of Chapter 74

reports. Appellee filed his Original Petition on June 19, 2012; therefore, his expert

report should have been served by October 17, 2012. But Appellee did not serve a

report by that date.

       Dr. Konasiewicz provided conclusive evidence that the report was mailed on

October 18, 2012, rendering findings of fact numbers 6 and 7 and conclusion of
4
        At the two hearings, the court only considered the issue of the timeliness of Appellee’s
report and did not hear argument on the sufficiency of the report. (See 2 RR 5-57; 3 RR 5-58).
The trial court’s order addresses only the timeliness of Appellee’s report, as reflected by the
court’s findings of fact and conclusions of law. (See SCR 13-17).



BRIEF OF APPELLANT                                                                      PAGE 7
law number 17 supported by legally and factually insufficient evidence, as well as

rendering conclusion of law number 17 legally erroneous. The mailing labels,

United States Postal Service (“USPS”) Tracking results, and affidavit of 24-year

USPS supervisor Tim Birrenkott conclusively established that Appellee mailed the

items at 4:13 p.m. on October 18, 2012, at the Portland, Texas post office.

Therefore, under Rule 21a, Appellee’s service of the report was untimely.

      Appellee’s evidence offered to prove that the report was mailed on October

17, 2012 is not prima facie evidence of the fact of service and cannot give rise to

any presumption of service on that date. The USPS Tracking results and Mr.

Birrenkott’s affidavit offered by Dr. Konasiewicz establish that the affidavit and

statements by Appellee’s counsel’s paralegal (that the report was mailed on

October 17, 2012 at the Nueces Bay Boulevard post office) were untrue. And even

if the paralegal’s affidavit gave rise to a presumption of service—which it did

not—Dr. Konasiewicz overcame that presumption with the aforementioned

evidence. Dr. Konasiewicz also rebutted any presumption of service because the

report was received 17 days after the alleged mailing date of October 17, 2012,

well past the three-day period contemplated in Rule 21a.

      The trial court could come to only one conclusion based on the evidence

before it: that Appellee did not serve his Chapter 74 expert report by the October

17, 2012 deadline. The trial court erred in concluding otherwise, and abused its



BRIEF OF APPELLANT                                                          PAGE 8
discretion in overruling Dr. Konasiewicz’s objections to the timeliness of

Appellee’s expert report and denying his request for dismissal with prejudice. This

Court should reverse the trial court’s order, dismiss Appellee’s suit with prejudice,

and remand for a determination of Dr. Konasiewicz’s reasonable attorney’s fees

and costs of court.

                        ARGUMENT AND AUTHORITIES

I.    Appellee Failed To Timely Serve Chapter 74 Expert Reports

      A.     Standards of Review

             1.       Section 74.351 Motions to Dismiss

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

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

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

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

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

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

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

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

To the extent an issue presented requires statutory interpretation or a determination

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

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



BRIEF OF APPELLANT                                                            PAGE 9
motion to dismiss for failure to comply with section 74.351 for an abuse of

discretion, whether proper service has been made is a question of law reviewed de

novo. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (citing Univ. of Tex. Health Sci. Ctr. v.

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

denied)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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



BRIEF OF APPELLANT                                                             PAGE 10
             2.     Findings of Fact and Conclusions of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




BRIEF OF APPELLANT                                                             PAGE 11
       B.     Chapter 74 Expert Report Requirement

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

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

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

for each physician or health care provider against whom the claim is asserted.

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

not serve an expert report and CV as required, the trial court must, upon the motion

of the affected physician or health care provider,5 dismiss the claim with prejudice

and award reasonable attorney’s fees and costs of court incurred by the physician

or health care provider. Id. § 74.351(b); See Ogletree v. Matthews, 262 S.W.3d

316, 319-20 (Tex. 2007); Otero v. Alonzo, No. 13-10-00304-CV, 2011 WL

765673, at *2-*5 (Tex. App.—Corpus Christi Mar. 3, 2011, no pet.).

       C.     Appellee Did Not Timely Serve Reports Under Rule 21a

       As noted, section 74.351(a) requires the claimant to “serve” the expert report

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

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

Texas Rule of Civil Procedure 21a. Christus Spohn Health Sys. Corp. v. Lopez,

No. 13-13-00165-CV, 2014 WL 3542094, at *4 (Tex. App.—Corpus Christi July


5
      It is undisputed that Dr. Konasiewicz sought dismissal with prejudice. (CR 157-58, 270;
SCR 9, 16; 2 RR 31; 3 RR 14).



BRIEF OF APPELLANT                                                                   PAGE 12
17, 2014, no pet.) (mem. op.); Otero v. Alonzo, No. 13-10-00304-CV, 2011 WL

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

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

TEX. R. CIV. P. 21a (1990).6 Rule 21a authorizes service by one of four methods of

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

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

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

the court in its discretion may direct. Id.

       Rule 21a provides that:

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

Id. Notice may be served by a party to the suit, an attorney of record, a sheriff or

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

       The party or attorney of record must certify to the court compliance with

Rule 21a in writing over signature and on the filed instrument. Id. A certificate by

a party or an attorney or record, or the affidavit of any person showing service of a

notice shall be prima facie evidence of the fact of service. Id. Thus, Rule 21a sets
6
        Rule 21a was amended effective January 1, 2014. Those amendments do not apply, as
the suit and the service dispute at issue arose in 2012. Further, at one time Appellee disputed
that Rule 21a applies to the service of Chapter 74 expert reports. (CR 236-37). However, it
appears that Appellee has acknowledged that Rule 21a applies. (See CR 378-81).



BRIEF OF APPELLANT                                                                    PAGE 13
up a presumption that when notice properly addressed and postage prepaid is

mailed, that the notice was duly received by the addressee. Cliff v. Huggins, 724

S.W.2d 778, 780 (Tex. 1987).

      However, that presumption may be rebutted by proof of non-receipt:

      Nothing herein shall preclude any party from offering proof that the
      notice or instrument was not received, or, if service was by mail, that
      it was not received within three days from the date of deposit in a post
      office or official depository under the care and custody of the United
      States Postal Service, and upon so finding, the court may extend the
      time for taking the action required of such party or grant such other
      relief as it deems just.

TEX. R. CIV. P. 21a; Cliff, 724 S.W.2d at 780. In the absence of evidence to the

contrary, the presumption has the force of a rule of law. Cliff, 724 S.W.2d at 780.

The presumption, however, is not “evidence” and it vanishes when opposing

evidence is introduced that the letter was not received. Id.; see Unifund CCR

Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (attorney’s affidavit

rebutted presumption of timely service of responses to requests for admissions).

      Receipt is an element of service. Payton v. Ashton, 29 S.W.3d 896, 898

(Tex. App.—Amarillo 2000, no pet.). “[I]mplicit in the concept of service is the

need for the party upon whom an item is served to actually receive it.” Id. “If

receipt of the item was not implicitly required, then there would be no reason for

those who drafted Rule 21a to state that nothing precluded a party from

establishing non-receipt.” Id. (applying Rule 21a and holding that, while record



BRIEF OF APPELLANT                                                           PAGE 14
showed that requests for admissions were mailed via certified mail, return receipt

requested, the fact that those mailings were returned marked “unclaimed” negated

the presumption of receipt and provided the court with a basis to conclude that the

requests were not received); Waggoner v. Breland, No. 01-10-00226-CV, 2011

WL 2732687, at *2 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (U.S.

Postal Service letter stating that certified mail was returned “unclaimed” would be

sufficient to rebut the presumption of service); Etheredge v. Hidden Valley Airpark

Ass'n, Inc., 169 S.W.3d 378, 381-82 (Tex. App.—Fort Worth 2005, pet. denied)

(rejecting argument that proper service by mail under Rule 21a does not depend

upon actual receipt by the addressee and that all Rule 21a requires of a serving

party is to deposit the document in the mail; notice of hearing setting sent by

certified mail and returned "unclaimed" did not provide the notice required by Rule

21a); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999)

(concluding that non-movant had not been served with motion of nonsuit when

presumption of receipt raised by certificate of service was rebutted by evidence of

non-receipt).

                1.   Dr. Konasiewicz’s Evidence      Precludes    Application   of
                     Presumption of Timely Service

      Here, because Dr. Konasiewicz conclusively established service of the

section 74.351 expert report on the 121st day following the filing of the Original

Petition, no presumption of timely service of Appellee’s expert reports arose.


BRIEF OF APPELLANT                                                         PAGE 15
Indeed, the evidence is both legally and factually insufficient to support the

findings of fact numbers 6 and 7, and conclusion of law number 17; further,

conclusion of law number 17 is legally erroneous.

      In his initial objections, Dr. Konasiewicz asserted that Appellee had not

timely served Dr. Barrash’s report within the 120-day deadline: October 17, 2012.

(CR 157-58). Dr. Konasiewicz established he had not even received the report

until November 3, 2012. (Id.; CR 318-19).

      Appellee responded, asserting that he served Dr. Konasiewicz with the

report on October 17, 2012. (CR 234-36). To support this assertion, Appellee

attached the affidavit of Nicole Stoner (the “Stoner Affidavit”), a paralegal for

Appellee’s counsel. (CR 247-49). In her affidavit, Ms. Stoner asserted that she

mailed the reports on October 17, 2012:

      On October 17, out of an abundance of precaution, we mailed the
      Chapter 74 expert Report to Dr. Konasiewicz at the following
      addresses:

            a.    Stefan Konasiewicz
                  1227 3rd St.
                  Corpus Christi, Texas 78404-2313

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

            c.    Stefan Konasiewicz
                  William Beaumont
                  Army Medical Center
                  5005 N. Piedras St.


BRIEF OF APPELLANT                                                        PAGE 16
                   El Paso, Texas 79920

(CR 248). Ms. Stoner later testified that she placed the packages containing Dr.

Barrash’s report in the mailbox outside of the Nueces Bay Boulevard post office

some time around 6:30 p.m. on October 17, 2012. (2 RR 46-50). She stated that

she affixed the postage beforehand using an office machine, rather than having it

done by the postal service. (2 RR 48).

      By supplement, Dr. Konasiewicz provided conclusive evidence to the court

that Appellee did not mail Dr. Barrash’s report on October 17, 2012, as Appellee

claimed; rather, Appellee mailed the report on October 18, 2012. (CR 261-325).

Dr. Konasiewicz provided as exhibits the correspondence and mailing envelope

from Appellee’s counsel’s office to Dr. Konasiewicz containing Dr. Barrash’s

report and curriculum vitae. (CR 303-06, 320-23). The mail label numbers 7011

0470 0003 1906 3604 and 7011 0470 0003 1906 3567 correspond to the articles

mailed to Dr. Konasiewicz. (Id.).

      Dr. Konasiewicz also provided the results from an inquiry on the United

States Postal Service (“USPS”) Tracking web page corresponding to the above-

numbered articles.    (CR 313-14).       The USPS Tracking results showed that

CMRRR Nos. 0470 0003 1906 3604 and 7011 0470 0003 1906 3567 were not

actually received by the USPS until the late-afternoon (4:13 p.m.) of October 18,

2012 (rather than October 17, 2012 around 6:30 p.m.) at the Portland, Texas post



BRIEF OF APPELLANT                                                        PAGE 17
office (rather than the Nueces Bay Boulevard location). (CR 313-14).           This

conclusively established that Appellee did not deposit the articles at the Nueces

Bay Boulevard post office on October 17, 2012 as claimed.

      Dr. Konasiewicz also provided the affidavit of Tim Birrenkott, a 24-year

employee of the USPS and current Supervisor of Customer Service Support. (CR

283-84).   Mr. Birrenkott’s affidavit conclusively established that the above-

referenced items were, in fact, not mailed on October 17, 2012 at the main post

office on Nueces Bay Boulevard. (Id.). Mr. Birrenkott reviewed Ms. Stoner’s

affidavits, the transcript of the May 8, 2013 hearing, the correspondence related to

the above mailing, and the USPS Track & Confirm results. (Id.).

      Mr. Birrenkott swore that the certified mail items referenced above “were

not deposited on October 17, 2012 in any mailbox at the main post office located at

809 Nueces Bay Boulevard in Corpus Christi, Texas, 78469.” (CR 284) (emphasis

added). Instead, the items were “tendered into the U.S. Mail at the Portland, Texas

post office branch inside the post office on October 18, 2012 at 4:13 PM. The

items would have had to be handed by the customer to an employee of the Portland

post office.”   (Id.) (emphasis added).    Mr. Birrenkott further stated that if a

certified mail item had been deposited at the main post office—as Ms. Stoner

claimed—it would have been reported by the Track & Confirm system as




BRIEF OF APPELLANT                                                          PAGE 18
“accepted” at the main post office on Nueces Bay Boulevard in Corpus Christi.

(Id.).

         The evidence conclusively established that Dr. Konasiewicz was not timely

served with expert reports. The deadline for Appellee to serve expert reports was

October 17, 2012. The USPS Track & Confirm results and Mr. Birrenkott’s

affidavit proved that Appellee mailed the reports on October 18, 2012 from

Portland, Texas. (CR 283-84, 313-14). See Neiswender v. SLC Constr., LLC, No.

13–11–00669–CV, 2012 WL 3046010, at *3 (Tex. App.—Corpus Christi July 26,

2012, pet. denied) (affidavit by counsel’s legal assistant claiming mailing date of

September 3, 2010—prior to limitations deadline—was directly controverted by

affidavit of county postmaster, who affirmatively stated that item was mailed on

September 7th or 8th, 2010); see also Doyle v. Grady, 543 S.W.2d 893, 894 (Tex.

Civ. App.—Texarkana 1976, no writ) (affidavit of USPS employee sufficient to

establish date of mailing of brief where it was not clear whether postmark was

affixed by USPS or private postage meter).

         At a minimum, the evidence precludes any application of the presumption of

timely service under Rule 21a. Ms. Stoner admitted the postage meter date of

October 17, 2012 was affixed by private postage meter, rather than stamped by the

USPS. (2 RR 48). The USPS Tracking results and Mr. Birrenkott’s affidavit




BRIEF OF APPELLANT                                                          PAGE 19
establish that Ms. Stoner’s statements are not accurate or true in the following

respects:

         the date the report was purportedly mailed (October 17th, 2012) (it was

          actually mailed October 18th 2012);

         that it was mailed sometime around 6:30 p.m. (it was actually mailed at

          4:13 p.m.);

         that it was mailed at the Nueces Bay Boulevard post office (it was actually

          mailed at the Portland, Texas post office);

         that it was placed in a receptacle outside the post office (it was actually

          handed across the counter to an employee inside).

Compare (CR 248) and (2 RR 46-50) with (CR 283-84, 313-14). The Stoner

Affidavit (and Ms. Stoner’s testimony) are not prima facie evidence of service and

thus cannot even give rise to a presumption of timely service. See TEX. R. CIV. P.

21a; Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 748 (Tex. App.—San

Antonio 1995, writ denied) (“A prima facie case represents the minimum quantum

of evidence necessary to support a rational inference that the allegation of fact is

true.”); In re Arnold, No. 13–12–00619–CV, 2012 WL 6085320, at *3 (Tex.

App.—Corpus Christi, Nov. 30, 2012, no pet.) (same); Texas Beef Cattle Co. v.

Green, 862 S.W.2d 812, 813 (Tex. App.—Beaumont 1993, no writ) (date stamped

by a private postage meter on the envelope containing the appellee’s brief was



BRIEF OF APPELLANT                                                           PAGE 20
insufficient to overcome prima facie evidence of the postal service postmark which

indicated that the brief had not been mailed before the filing deadline).

       Appellee argued that “deposit” is dispositive, and that it matters not when

the USPS actually stamps the mail as “accepted.” (CR 378-81; 3 RR 22-30). But

as Dr. Konasiewicz explained, Appellee’s evidence does not give rise to any

reasonable inference that it was deposited when Ms. Stoner claimed. (3 RR 26-

28).    Instead, the USPS Tracking results and Mr. Birrenkott’s affidavit

conclusively established that the report was not deposited at the Nueces Bay

Boulevard location on October 17, 2012, but instead was mailed from Portland,

Texas on October 18, 2012. (Id.; CR 283-84, 313-14).

       At the second hearing on the motion to dismiss, Appellee also asserted that

Mr. Birrenkott did not say the mail item was not deposited on October 17th. (3 RR

at 28-29). But Mr. Birrenkott did say just that. Mr. Birrenkott affirmed that the

items “were not deposited on October 17, 2012 in any mailbox at the main post

office located at 809 Nueces Bay Boulevard in Corpus Christi, Texas, 78469 . . . .

.” (CR 284-85) (emphasis supplied). Mr. Birrenkott unequivocally stated that the

items were tendered at the Portland, Texas post office branch “inside the post

office on October 18, 2012 at 4:13 PM.”           (Id.) (emphasis supplied).     How

Appellee could read these words any other way defies logic.




BRIEF OF APPELLANT                                                             PAGE 21
      Further, Dr. Konasiewicz did not receive the reports until November 3,

2012. (CR 319). The USPS Track & Confirm Results indicate that CMRRR label

numbers 0470 0003 1906 3604 and 7011 0470 0003 1906 3567 were delivered at

10:03 a.m. on November 3, 2012 in El Paso, Texas – long after the 3-day period

provided for within Rule 21a. (CR 313-14). And Dr. Konasiewicz swore that he

did not receive the reports until November 3, 2012. (CR 319). Even if Appellee

established a presumption of “the fact of service”—which Dr. Konasiewicz

disputes—the evidence of non-receipt within three days rebuts any presumption

that the above-referenced articles were mailed on October 17, 2012. See TEX. R.

CIV. P. 21a (proof that instrument was not received within three days rebuts

presumption); Cliff, 724 S.W.2d at 780.

      Appellee urged that the portion of Rule 21a allowing a party to rebut the

presumption of service when the item is not received within three days does not

establish the date of mailing or allow the court to provide any relief other than

extending the time for the receiving party to respond. (3 RR 34-40). But the rule

surely provides an alternative means to rebut any presumption that an item was

mailed when alleged. (See 3 RR 38-42). See also Neiswender v. SLC Constr.,

LLC, No. 13–11–00669–CV, 2012 WL 3046010, at *3 (Tex. App.—Corpus Christi

July 26, 2012, pet. denied) (affidavit by counsel’s legal assistant claiming mailing

date of September 3, 2010—prior to limitations deadline—was directly



BRIEF OF APPELLANT                                                          PAGE 22
controverted by affidavit of county postmaster, who affirmatively stated that item

was mailed on September 7th or 8th, 2010); Texas Beef Cattle, 862 S.W.2d at 813.

And if receipt is an element of service, Payton, 29 S.W.3d at 898, then surely a

party is entitled to show that, based on a lengthy delay in receiving an item, it was

likely not deposited when alleged. See Bohannon v. Winston, 238 S.W.3d 535, 538

(Tex. App.—Beaumont 2007, no pet.) (“[Rule 21a] . . . provides the trial court

with the discretion to establish a date of service based upon the actual receipt of

notice as opposed to the date of constructive delivery.”). Further, Rule 21a does

not speak only in terms of extending a deadline for the receiving party—here Dr.

Konasiewicz—to act. Rather, that rule also allows the court to grant such other

relief as it deems just. TEX. R. CIV. P. 21a. In this case, that relief is in the form of

an order with findings of fact and conclusions of law that the report was served on

October 18, 2012, to support the requested dismissal under Chapter 74 when a

claimant fails to timely serve an expert report. What the court cannot do is use

Rule 21a to extend the deadline for service of expert reports because that would

directly contravene and rewrite section 74.351. See TEX. CIV. PRAC. & REM. CODE

§ 74.351(a), (c) (extensions may only be granted in two instances: (1) by

agreement of the parties, or (2) by the court to cure a deficiency in a timely-served

report); (3 RR 40-41).




BRIEF OF APPELLANT                                                               PAGE 23
      Dr. Konasiewicz conclusively proved that Appellee did not mail Dr.

Barrash’s report on October 17, 2012.       Appellee’s evidence was legally and

factually insufficient to even raise a presumption—or to support a finding or

conclusion—that the report was mailed on that day. See City of Keller, 168

S.W.3d at 810; Gonzales, 69 S.W.3d at 825.

      Alternatively, if Appellee raised the presumption of service, Dr.

Konasiewicz’s evidence conclusively contradicts, overcomes, or alternatively,

rebuts that presumption. See Neiswender, 2012 WL 3046010, at *3. The evidence

shows that the report was not mailed on October 17, 2012, the deadline for service

of the expert report.

      Thus, the trial court erroneously concluded that service of the section 74.351

expert report was proper, Nexion Health, 335 S.W.3d at 718, and further, erred in

concluding that Appellee timely served Dr. Konasiewicz on October 17, 2012 with

the report of Dr. Barrash, by depositing it into the mail at the United States Post

Office at 809 Nueces Bay Boulevard, Corpus Christi, TX 78469. (See Findings of

Fact Nos. 6 & 7, and Conclusions of Law No. 17 (SCR 14, 16-17)).

             2.     Because Appellee Untimely Served the Report, the Trial Court
                    Had No Discretion But to Dismiss Appellee’s Suit With
                    Prejudice




BRIEF OF APPELLANT                                                          PAGE 24
      Appellant conclusively established service of the expert report on October

18, 2012, the 121st day following the filing of the Original Petition. Because

Appellee did not timely serve an expert report, the trial court had no discretion but

to dismiss Appellee’s suit with prejudice.      TEX. CIV. PRAC. & REM. CODE §

74.351(a), (b); Ogletree, 262 S.W.3d at 319-20; Otero, 2011 WL 765673, at *2-*5.

      This Court should reverse the trial court’s order overruling Dr.

Konasiewicz’s objections regarding the timeliness of Appellee’s expert report,

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

determination of Dr. Konasiewicz’s reasonable attorney’s fees and costs of court.

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

                         CONCLUSION AND PRAYER

      Appellee failed to timely serve a Chapter 74 report, entitling Dr.

Konasiewicz to dismissal under the statute. Appellee’s expert report was due

October 17, 2012.      Dr. Konasiewicz provided conclusive evidence that Dr.

Barrash’s report was mailed on October 18, 2012. The mailing labels, USPS

Tracking results, and affidavit of a 24-year USPS supervisor conclusively

established that Appellee mailed the item at 4:13 p.m. on October 18, 2012, by

taking it inside the Portland, Texas post office.      Therefore, under Rule 21a,

Appellee’s service of the report was October 18, 2012.




BRIEF OF APPELLANT                                                           PAGE 25
      The Stoner Affidavit (and her testimony) are legally and factually

insufficient to constitute prima facie evidence of the fact of service or raise any

reasonable inference supporting any presumption of service on October 17, 2012.

The USPS Tracking results and Mr. Birrenkott’s affidavit wholly undermine and

conclusively disprove Ms. Stoner’s assertions that the report was mailed on

October 17, 2012 at the Nueces Bay Boulevard post office. And even if the Stoner

Affidavit gave rise to a presumption of service, Dr. Konasiewicz overcame that

presumption with the aforementioned evidence. Dr. Konasiewicz also rebutted any

presumption of service because the report was received 17 days after the alleged

mailing, well past the three-day period contemplated in Rule 21a.

      The trial court could come to only one conclusion based on the evidence

before it: that Appellee did not timely serve her Chapter 74 expert report. The trial

court erred in concluding service was timely based on a date of service as October

17, 2012, and abused its discretion in overruling Dr. Konasiewicz’s objections to

the timeliness of Appellee’s expert report and request for dismissal with prejudice.

This Court should reverse the trial court’s order, dismiss Appellee’s suit with

prejudice, and remand for a determination of Dr. Konasiewicz’s reasonable

attorney’s fees and costs of court.

      THEREFORE, Appellant Stefan Konasiewicz, M.D. respectfully prays this

Court reverse the trial court’s order overruling Dr. Konasiewicz’s objections



BRIEF OF APPELLANT                                                           PAGE 26
regarding the timeliness of Appellee’s expert report, dismiss Appellee’s claims

with prejudice, and remand to the trial court with an order to determine and award

Appellant’s reasonable attorney’s fees and costs of court. Appellant prays for all

such other and further relief, whether general or special, at law and in equity, as

this Court deems just.




BRIEF OF APPELLANT                                                         PAGE 27
                                     Respectfully submitted,

                                     COOPER & SCULLY, P.C.


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

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

                                     ATTORNEYS FOR APPELLANT
                                     STEFAN KONASIEWICZ, M.D.



                     CERTIFICATE OF COMPLIANCE

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

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

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

6,308 words.

                                      /s/Diana L. Faust
                                     DIANA L. FAUST




BRIEF OF APPELLANT                                                        PAGE 28
                       CERTIFICATE OF SERVICE

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

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

Mr. W. Richard Wagner                                             VIA EFILE
rwagner@wagnercario.com
Mr. Peter Cario
pcario@wagnercario.com
WAGNER CARIO, L.L. P.
7718 Broadway Street
San Antonio, TX 78209
Trial Counsel for Appellant



                                     /s/Diana L. Faust
                                    DIANA L. FAUST




BRIEF OF APPELLANT                                                      PAGE 29
                                NO. 13-15-00060-CV


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


                         STEFAN KONASIEWICZ, M.D.,
                                 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)


                     APPENDIX TO BRIEF OF APPELLANT


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

Appellant Stefan Konasiewicz, M.D. submits this Appendix to his Brief of

Appellant containing the following items:

         Tab A:      January 8, 2015 Order on Defendant Stefan Konasiewicz,
                     M.D.’s Objections to Plaintiff’s Expert’s Report Pursuant to
                     CPRC 74.351 et seq. (CR 405)

         Tab B:      February 17, 2105 Court’s Findings of Fact and Conclusions of
                     Law (SCR 13-17)


D/923311v3




BRIEF OF APPELLANT                                                          PAGE 30
APPENDIX TAB “A”
                         CAUSE NO. 2012 CCV 61202-1


Juan Garza,                                              In the County Court
Plaintiff,

v.

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



     ORDER ON DEFENDANT STEFAN KONASIEWICZ, M.D.'S OBJECTIONS TO
       PLAINTIFF'S EXPERT'S REPORT PURSUANT TO CPRC 74.351 et seq.



       After considering DEFENDANT STEFAN KONASIEWICZ, M.D.'S OBJECTIONS

TO PLAINTIFF'S EXPERT'S REPORT PURSUANT T               C 74.351 et seq., and

Plaintiffs response thereto, the Court OVERRRULES   'BJECTIONS.

SIGNED on                 r, 2010




                                                                         405
APPENDIX TAB “B”
                              CAUSE NO. 2012 CCV 61202-1


Juan Garza,                           §              In the County Court
Plaintiff,                            §
                                      §
v.                                    §
                                      §
Dr. Stefan Konasiewicz and Dr.        §                        at Law #1
Mathew Alexander, Individually and as §
President of South Texas Brain and    §
Spine Center,                         §
Defendants.                           §            Nueces County, Texas
        Co afri- t)
       1165514111NPS ORDER ON FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

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

following Findings of Fact and Conclusions of Law:

                                      I. FINDINGS OF FACT

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

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

120 days from June 19, 2012 to serve the party defendants named in Plaintiffs Original

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

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

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

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

the case for his Original Petition.

4.     Plaintiff then filed his First Amended Petition on June 27, 2012. Plaintiff's First

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

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



                                                                                     Page 1
                                                                                         13
facts and causes of actions against Dr. Mathew Alexander and listed him as a

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

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

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

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

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

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

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

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

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

certified mail, return receipt requested.

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

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

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

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

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

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

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

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

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

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

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


                                                                                 Page 2

                                                                                    14
S.W.2d 833, 840 (Tex. 1992) (stating that to establish an abuse of discretion on a trial

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

reasonably have reached only one decision").

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

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

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

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

therefore timely.

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

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

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

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

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

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

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

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

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

in support of their Motion.

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

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

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

Konasiewicz's Objections.

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



                                                                                   Page 3

                                                                                      15
Motion to Dismiss and the Objections. The hearing was limited to Defendants'

complaints concerning the timeliness of Plaintiff's Chapter 74 expert report. The Court

took the matter under advisement.

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

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

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

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

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

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

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

Second Motion to Dismiss on January 2, 2015.

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

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

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

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

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

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

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

alleged untimely service of the report.

                              II. CONCLUSIONS OF LAW

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

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

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



                                                                                     Page 4
                                                                                           16
certified mail, service is "complete upon deposit of the paper, enclosed in a postpaid,

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

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

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

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

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

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

Dr. Mathew Alexander was Plaintiff's First Amended Petition. Hayes v. Carroll, 314

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

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

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

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

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

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




                                         HONO                          RT VARGAS




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