Case Information
*0 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/12/2015 4:46:14 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-00059-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 5/12/2015 4:46:14 PM DORIAN RAMIREZ CLERK ORAL ARGUMENT REQUESTED NO. 13-15-00059-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.
DARLENE GARZA,
Appellee. On Appeal from County Court at Law No. 1, Nueces County, Texas Cause No. 2012-CCV-61201-1 (Hon. Robert J. Vargas)
REPLY BRIEF OF APPELLANT Respectfully submitted, COOPER & SCULLY, P.C.
D IANA L. F AUST
diana.faust@cooperscully.com Texas Bar No. 00793717 R. B RENT C OOPER brent.cooper@cooperscully.com Texas Bar No. 04783250 K YLE M. B URKE
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 *2 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 *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 *5 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 Pages(s)
T EX . C IV . P RAC . & R EM . C ODE §§ 74.001-.507 (Vernon 2011) .............................. 1
T EX . C IV . P RAC . & R EM . C ODE § 74.351(a) (Vernon 2011) ................. 2, 8, 9, 18, 24
T EX . C IV . P RAC . & R EM . C ODE § 74.351(b) (Vernon 2011).........................8, 21, 25
T EX . C IV . P RAC . & R EM . C ODE § 74.351(c) (Vernon 2011) .................................. 18
Rules Page(s)
T EX . R. A PP . P. 38.1(h)........................................................................................... 1
T EX . R. C IV . P. 21a..........................................................................................14, 15
T EX . R. C IV . P. 299..........................................................................................15, 17
T EX . R. E VID . 402 .................................................................................................. 1
T EX . R. E VID . 403 .................................................................................................. 1
T EX . R. E VID . 801 .................................................................................................. 1
T EX . R. E VID . 802 .................................................................................................. 1
vi
NO. 13-15-00059-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.
DARLENE GARZA,
Appellee. On Appeal from County Court at Law No. 1, Nueces County, Texas Cause No. 2012-CCV-61201-1 (Hon. Robert J. Vargas)
*9 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
vii
Appellee [1] Darlene Garza (“Appellee”), Appellant respectfully represents as
follows:
*10 [1] Appellant will cite his opening brief as “Br.” and the Brief of Appellee as “Resp.” 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 *11 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 T EX . R. E VID . 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 T EX . R. A PP . P. 38.1(h); Marshall v. Housing Auth. of the City of San
*12 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 T EX . C IV . P RAC . & R EM . C ODE § 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
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:
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 her
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 60).
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
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 her 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, 11). 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 395-401; 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
*16 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
*17 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 343), and the
authorization form for release of protected health information repeatedly refers to
“Dr. Mathew Alexander.” (CR 344-45; see also Br. at 19-20). And, the letter was
dated June 18, 2012, one day before Appellee filed her Original Petition. (CR 342-
*18 43). It is simply disingenuous for Appellee to claim or suggest that she 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. T EX . C IV . P RAC . & R EM . C ODE § 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
*19 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); T EX . C IV . P RAC . & R EM . C ODE § 74.351(a) (Vernon 2011). There is no
dispute that Appellee served her 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
*20 Appellee was the first to raise the misidentification doctrine (and necessarily the
misnomer doctrine) in response to Appellant’s Second Motion to Dismiss. (CR
211-12 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 she 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)
(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 9-16). Only Dr. Mathew Alexander is the president of South Texas
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 256; 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
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
that Appellee intended to sue. Appellee did not add a new person or entity when
she “saw [her] mistake and corrected it through an amended petition.” (3 RR 49).
She 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; Resp. at 3) (admitting that report was faxed at
approximately 6:28 p.m. on October 17 th ). Under Rule 21a and Texas case law,
the report is deemed to have been served the next day, October 18 th , rendering it
one day late. T EX . R. C IV . 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,
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. T EX . R. C IV . 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. T EX . R. C IV . P. 299;
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 *27 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 444-48) with
(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 *28 exception cannot be deemed in support of the trial court’s judgment. T EX . R. C IV .
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
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 T EX . C IV . P RAC .
& R EM . C ODE § 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.
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
*31 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 78-80). Appellee did not have
to exercise due diligence to find Appellant’s attorney of record to timely serve him
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. T EX . C IV . P RAC . & R EM . C ODE § 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
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 she 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 342-45).
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
*34 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 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 342-45). The evidence
showed that Appellee did not serve reports until October 18, 2012. (CR 175-98,
396). 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.
*35 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. T EX . C IV . P RAC . & R EM . C ODE §§ 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
*36 no dispute that she 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. T EX .
C IV . P RAC . & R EM . C ODE § 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.
*37 Respectfully submitted, COOPER & SCULLY, P.C.
By: /s/Diana L. Faust D IANA L. F AUST diana.faust@cooperscully.com State Bar No. 00793717 R. B RENT C OOPER brent.cooper@cooperscully.com State Bar No. 04783250 K YLE M. B URKE 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
6,090 words.
/s/Diana L. Faust D IANA L. F AUST
*38 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
H ILLIARD M UNOZ G ONZALES , 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
W OOLSEY & A SSOCIATES , P.L.L.C.
555 North Carancahua, Suite 1160
Corpus Christi, TX 78401-0841
Trial Counsel for Appellant
/s/Diana L. Faust D IANA L. F AUST
D/926301v8
Appellee missed the deadline for serving Chapter 74
[3] 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
[3] T EX . C IV . P RAC . & R EM . C ODE §§ 74.001-.507 (Vernon 2011).
[1] Antonio , 198 S.W.3d 782, 789 (Tex. 2006))); Carlisle v. Philip Morris, Inc., 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).
[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).
[7]
[5] If, as Appellee contends, she 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, 6:30 p.m.) she claims she 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 170-98, 396; 2 RR 48).
[8]
[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)).
[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