Dr. Matthew Alexander, M.D., Individually and as President of South Texas Brain and Spine Center And South Texas Brain and Spine Center v. Darlene Garza
13-15-00059-CV
| Tex. App. | May 12, 2015Background
- Plaintiff (Garza) filed an original petition on June 19, 2012 alleging health-care-liability claims and (in the “Parties” section) identified “Defendant Dr. Mathew Alexander” and indicated he could be served through counsel and as registered agent of South Texas Brain & Spine Center.
- Plaintiff later filed a First Amended Petition correcting typographical errors; plaintiff conceded the amended petition named Dr. Mathew Alexander.
- Under Tex. Civ. Prac. & Rem. Code § 74.351(a), an expert report and CV must be served within 120 days after a defendant is “named” in a suit; that made the deadline October 17, 2012 for claims asserted in the June 19 petition.
- Plaintiff faxed the expert report on October 17, 2012 after 5:00 p.m.; Rule 21a deems faxes sent after 5:00 p.m. served the next day (Oct. 18), rendering the report one day late.
- Appellant (Dr. Alexander) moved to dismiss under § 74.351(b); the trial court denied the second motion to dismiss. This reply brief argues the trial court’s findings lack evidentiary support and that dismissal with prejudice was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (Appellant's position / relief sought) |
|---|---|---|---|
| Whether the 120‑day deadline runs from the original petition or an amended petition | Garza contends the relevant 120‑day period starts when a claim is first asserted against the defendant — here she relies on the amended petition | Alexander argues the original petition named him (despite typographical errors) so the 120‑day clock began June 19, 2012 | Appellant: original petition named Dr. Mathew Alexander; expert report due Oct. 17, 2012; late service mandates dismissal |
| Whether the pleadings (style vs. substance) control identification of the sued party | Garza emphasizes style / service history and argues amended petition controls | Alexander points to the substance of the original petition, pre‑suit letter, and authorizations showing intent to sue Mathew Alexander | Appellant: identity determined from petition substance and entire record; original petition named the defendant |
| Whether misnomer/misidentification prevents the 120‑day clock from running from the original petition | Garza argues any misidentification defeats running of the clock from the original petition | Alexander contends misnomer doctrine, if relevant, supports relation‑back because the original petition unmistakably referred to Mathew Alexander | Appellant: even if misnomer claimed, the amendment relates back; deadline still Oct. 17, 2012 |
| Whether a due‑diligence or excusable‑mistake exception excuses a faxed expert report served after 5:00 p.m. on the deadline day | Garza urges a due‑diligence (or relation) argument to treat the late fax as timely | Alexander responds Rule 21a governs facsimile service; Tex. caselaw rejects a general due‑diligence exception to § 74.351 deadlines and the trial court made no findings to support an exception | Appellant: Rule 21a deems the late fax served Oct. 18 (one day late); no due‑diligence exception exists or applies; dismissal required |
Key Cases Cited
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (Section 74.351 deadline runs from date defendant is named in the lawsuit; identity is determined from pleadings/substance)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (declined to adopt a due‑diligence exception in facts before court; plaintiff failed to show diligence)
- Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) (Chapter 74 provides limited exceptions to report deadlines; legislature removed broader extensions such as for ‘‘accident or mistake’‘)
- Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011) (facsimile served after 5:00 p.m. is deemed served next day; late service requires dismissal under § 74.351)
- Dezso v. Harwood, 926 S.W.2d 371 (Tex. App.—Austin 1996) (courts may look beyond pleadings to determine whether plaintiff intended to sue a particular person; misnomer vs. misidentification distinction)