Stefan Konasiewicz, M.D. v. Juan Garza
13-15-00060-CV
| Tex. App. | Mar 19, 2015Background
- Juan Garza (plaintiff) filed a medical-malpractice suit on June 19, 2012 against Dr. Stefan Konasiewicz and others; Chapter 74 (TMLA) applies and requires an expert report within 120 days of the original petition.
- The 120-day deadline for serving an expert report was October 17, 2012 (since suit was filed June 19, 2012 under the pre-2013 statute).
- Garza submitted an expert report by mail (paralegal Nicole Stoner swore she mailed certified copies on October 17, 2012); Konasiewicz did not receive the report until November 3, 2012.
- Konasiewicz produced USPS Track & Confirm printouts and an affidavit from a USPS supervisor (Tim Birrenkott) showing the certified items were accepted at the Portland, TX branch on October 18, 2012 at 4:13 p.m., not at the Nueces Bay Boulevard post office on October 17.
- The trial court overruled Konasiewicz’s objections, found prima facie proof of service on October 17, 2012, and denied dismissal; Konasiewicz appealed, arguing the report was mailed one day late and dismissal with prejudice was mandatory under §74.351(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garza timely "served" the Chapter 74 expert report within 120 days | Stoner affidavit/testimony shows she deposited certified mail on Oct 17, 2012; service is complete upon deposit | Konasiewicz: USPS records and supervisor affidavit prove mailing/acceptance occurred Oct 18, 2012 (121st day), so service was late | Trial court found Stoner's affidavit prima facie evidence of Oct 17 service and denied dismissal; Konasiewicz appeals arguing court erred |
| Whether Rule 21a governs what constitutes "service" of a Chapter 74 expert report | Garza acknowledged Rule 21a applies (service by mail is complete upon deposit in USPS) | Konasiewicz: Rule 21a's presumption of receipt may be rebutted by evidence of nonreceipt or delayed receipt beyond 3 days; here USPS data rebuts presumption | Trial court applied Rule 21a and credited the prima facie certificate of service; Konasiewicz contends the USPS evidence should have controlled |
| Whether a presumption of service arising from a certificate/affidavit was rebutted | Garza: prima facie certificate of service stands absent sufficient rebuttal | Konasiewicz: USPS tracking and postmaster affidavit conclusively rebut and show nonreceipt within 3 days | Konasiewicz argues the evidence conclusively rebuts the presumption and mandates dismissal under §74.351; trial court disagreed |
| Remedy when expert report is untimely under §74.351 | If report is untimely, statute mandates dismissal with prejudice and award of fees | Konasiewicz seeks mandatory dismissal because he contends service was on day 121 | Trial court refused dismissal based on its findings; Konasiewicz appeals for reversal and dismissal |
Key Cases Cited
- Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (standard of review for chapter 74 dismissal)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (deference to trial-court factual findings; legal issues reviewed de novo)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal and factual sufficiency review)
- Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987) (presumption of receipt from mailed, postage-prepaid items and its rebuttal)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (chapter 74 expert-report dismissal principles)
- Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008) (presumption of mailing and its rebuttal)
- Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011) (Rule 21a governs service of Chapter 74 reports)