the University of Texas Medical Branch at Galveston v. Carolyn Callas, Ray Callas and Jamie Callas, Individually and as the Representatives of the Estate of Gerald Callas and for and on Behalf of Any Wrongful Death Beneficiaries
14-15-00449-CV
Tex. App.Oct 26, 2015Background
- This is an appellant’s reply brief (UTMB) challenging the trial court’s denial of a motion to dismiss a health-care-liability suit for failure to timely serve an expert report under Tex. Civ. Prac. & Rem. Code § 74.351(a). The statutory 120-day deadline ran on January 31, 2015.
- Appellees electronically filed their expert report on Jan. 31, 2015, then attempted to serve it by two emails at ~6:27 p.m.; Appellant’s counsel received the first email on Feb. 1, 2015, but the second email (allegedly containing voluminous medical records) was never received. Portions of the materials were later sent on Feb. 3 and Feb. 12, 2015.
- UTMB’s dismissal motion argued service was not completed within 120 days because (1) electronic service was mandatory when documents are e-filed (TRCP 21a(a)(1)); (2) Rule 4/TRCP should not extend the statutory 120-day deadline to the next business day; and (3) email after 5:00 p.m. should be deemed complete the next business day under the county local rule.
- Appellees (plaintiffs) argued their service was timely, invoked Rule 4 and constructive service, and asserted sufficiency/no-report arguments; UTMB stresses the appeal concerns only timeliness of completed service, not the substantive sufficiency of the report.
- The key legal questions: (a) whether Rule 4 (computing time) applies to extend the §74.351 120-day deadline when the 120th day falls on a weekend; (b) whether mandatory electronic service (TRCP 21a(a)(1)) applied to e-filed expert reports and, if so, when email service is “complete”; and (c) whether constructive service arguments or sufficiency issues were preserved below.
Issues
| Issue | Plaintiff (Appellees) Argument | Defendant (UTMB) Argument | Held / Relief Sought by Appellant |
|---|---|---|---|
| Whether Rule 4, TRCP (compute time to next business day) applies to extend the §74.351 120-day deadline | Rule 4 should extend the 120th day to the next business day (so service on Feb. 1 or Feb. 2 would be timely) | Texas Supreme Court did not apply Rule 4 in Badiga; §74.351’s 120-day deadline must be strictly applied and not extended by Rule 4 | Appellant: Rule 4 does not apply; 120th day = Jan. 31, 2015; dismissal required if service completed after that date |
| Whether electronic service was mandatory after e-filing (TRCP 21a(a)(1)) and whether Appellees complied | Appellees treated email to opposing counsel as sufficient service; Rule 21a(a)(2) allows email for non-e-filed docs | UTMB: once the report was e-filed, TRCP 21a(a)(1) required service via the electronic filing manager; Appellees did not use mandatory electronic-service mechanism and therefore did not complete service | Appellant: mandatory electronic service applied; failure to complete electronic service means no timely service |
| When is email service “complete” (especially emails sent after 5:00 p.m.) | Service completes upon transmission to recipient’s email/server; receiving party’s reading date may control | UTMB: Rule 21a is silent; local Galveston Local Rule 12.5.2 deems e-mail after 5:00 p.m. complete the next business day; because the second email was not received at all, service never completed within 120 days | Appellant: email after business hours counts next business day; here service was incomplete and untimely |
| Whether constructive service / sufficiency-of-report arguments justify denying dismissal | Appellees now argue “constructive service” and that report was sufficient or that medical records were effectively served | UTMB: constructive-service was not raised/facts do not support selective acceptance/refusal; Appellant did not challenge sufficiency below and the appeal concerns only timeliness of completed service | Appellant: constructive service is unsupported and waived; court should decide timeliness only and reverse denial of motion to dismiss |
Key Cases Cited
- Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) (addressed interlocutory appeal questions under §51.014(a)(9); Supreme Court did not analyze Rule 4 computation for §74.351 120-day deadline)
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (Texas Supreme Court holding that strict compliance with §74.351(a) is required)
- Mokkala v. Mead, 178 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2005) (discussing operation of §74.351 timing and statutory context)
- Carpinteyro v. Gomez, 403 S.W.3d 508 (Tex. App.—San Antonio 2013) (court of appeals applied Rule 4 in computing §74.351 deadline; appellant contests its correctness)
- Fung v. Fischer, 365 S.W.3d 507 (Tex. App.—Austin 2012) (discussed timing issues in expert-report context; cited Rule 4 but did not decide the same contested timeliness issue presented here)