Kirit N. Patel, M.D. v. Terrance Williams, Individually and as Personal Representative of the Estate of His Mother, Mary Nell Williams ( 2007 )

Opinion filed March 1, 2007

Opinion filed March 1, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00254-CV

                                                    __________

                                   KIRIT N. PATEL, M.D., Appellant

                                                             V.

           TERRANCE WILLIAMS, INDIVIDUALLY AND AS PERSONAL                REPRESENTATIVE OF THE ESTATE OF HIS DECEASED

MOTHER, MARY NELL WILLIAMS, Appellee

                                         On Appeal from the 358th District Court

                                                           Ector County, Texas

                                                Trial Court Cause No. D-120,137

                                             M E M O R A N D U M  O P I N I O N

This is a medical malpractice case.  Kirit N. Patel, M.D. filed a motion to dismiss contending that Terrance Williams, individually and as personal representative of the estate of his deceased mother,  Mary Nell Williams, failed to timely serve an expert report as required by Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(b) (Vernon Supp. 2006).  The trial court denied the motion to dismiss, and we affirm.

Williams filed this medical malpractice action on September 21, 2005.  He was, therefore, required to serve Dr. Patel=s attorneys with an expert report and curriculum vitae (C.V.) no later than Thursday, January 19, 2006.  Section 74.351(b).  Williams provided Dr. Patel=s counsel with a report and C.V. from Dr. Joseph S. Carey dated January 19, 2006. The attached certificate of service indicates that the report and C.V. were served on Friday, January 20, 2006. A copy of Dr. Carey=s report was filed with the district clerk=s office on Tuesday, January 24, 2006.

Dr. Patel filed a motion to dismiss, contending that Dr. Carey=s report was untimely.  Williams then filed a new notice of service, which stated that the report had been served on January 19, and an affidavit from his attorney. Williams=s counsel testified that the original certificate of service was incorrect because Dr. Carey=s report was received by fax on January 19 and was served on opposing counsel that same day.  He also testified that the original notice was incorrect because he was out of the office all day on January 20 attending docket call and taking his wife to the doctor for oral surgery.

Dr. Patel=s counsel filed an affidavit as well. Counsel testified that she visited with Williams=s attorney at the January 20 docket call and was told that he would send a copy of his expert=s report later that day.  She received the report on Monday, January 23, 2006, and called Williams=s attorney to tell him that it was late. Williams=s attorney initially contended that the report was timely because the deadline was January 21.  She testified that Williams=s attorney subsequently acknowledged that the deadline was in fact January 19 and that his office had missed it.

The trial court denied the motion to dismiss.  The court indicated in a letter ruling that it was unwilling to determine which of the two attorneys was being untruthful and that it was of the opinion that Williams could file an amended certificate of service.  Because the amended certificate of service indicated that the report was served timely, the court concluded that it had been.

The trial court=s ruling on a motion to dismiss filed under Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2006) is ordinarily reviewed for an abuse of discretion.  See Kendrick v. Garcia, 171 S.W.3d 698, 702-03 (Tex. App.CEastland 2005, pet. denied).  However, when our review requires an interpretation of the statute, we apply a de novo standard of review.  See Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 137 (Tex. App.CEastland 2006, no pet.).

A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to a trial court=s discretion, an appellate court may not substitute its own judgment for the trial court=s judgment.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  Nor may a reviewing court set aside the trial court=s determination unless it is clear from the record that the trial court could only reach one decision.  Id. at 840. 

Dr. Patel argues that Section 74.351 imposes a firm 120-day deadline to serve an expert report, that trial courts have no authority to extend this deadline to accommodate accidents or mistakes, and that the report must be served pursuant to Tex. R. Civ. P. 21a.  Dr. Patel contends that the trial court abused its discretion by denying his motion to dismiss because there was no evidence of compliance with Rule 21a and because the trial court effectively grafted an accident or mistake exception to the statutory deadline.

Whether Williams produced evidence of compliance with Rule 21a is not properly before us because it was not presented to the trial court.  See Nabors Drilling USA, L.P. v. Carpenter, 198 S.W.3d 240, 249 (Tex. App.CSan Antonio 2006, no pet.) (respondent could not raise notice and acceptance issues in mandamus proceeding because they were not presented to the trial court). Dr. Patel correctly notes that Rule 21a requires certified or registered mail and that first class mail is insufficient. But, his motion made no reference to Williams=s method of service.  His sole complaint was that Dr. Carey=s report and C.V. were late because they were mailed on January 20.  Dr. Patel=s counsel reiterated this position during the motion to dismiss hearing.  Counsel argued that the original certificate of service was controlling and, because it and the surrounding circumstances indicated that Dr. Carey=s report was mailed on January 20, that the report was late and the case should be dismissed.  The method of service was never discussed. 

The record does not indicate how Dr. Carey=s report was mailed.  The original certificate of service simply states Athat a true and correct copy of this pleading has been sent to all counsel of record on this the 20th day of January, 2006.@  The amended certificate is identical except for the date of service.  Dr. Patel argues that this lack of evidence means that Williams did not carry his burden of proof and, therefore, that dismissal was mandatory.  The San Antonio Court rejected a similar argument in Sw. Bell Tel. Co. v. Perez, 904 S.W.2d 817 821-22 (Tex. App.CSan Antonio 1995, no pet.).  The court held that noncompliance with some aspect of Tex. R. Civ. P. 5 could not be raised for the first time on appeal because the responding party could not demonstrate compliance without venturing outside the record.

That same situation exists here.  Williams=s attorney stated during oral argument that he mailed Dr. Carey=s report by certified mail.  The trial court could have easily verified that statement had the method of service been raised below.  However, it would be inappropriate for this court to allow or to ask counsel to produce a certified mail receipt now.  It would also be inappropriate to conclude that the trial court abused its discretion by not granting an objection that it was never asked to consider.  Cf. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (when compliance with Rule 21a is challenged, the responding party must prove that notice was properly sent).

Dr. Patel next argues that the trial court effectively engrafted an accident or mistake exception to Section 74.351=s 120-day deadline.  Under prior law if a party failed to timely file an expert report but could show that this failure was unintentional and was the result of accident or mistake, the trial court had the discretion to grant a 30-day grace period.  Tex. Rev. Civ. Stat. art. 4590i, ' 13.01(g) (1997) (repealed effective Aug. 31, 2003).  The legislature eliminated that authority when it adopted Section 74.351.  See Herrera v. Seton Nw. Hosp., No. 03-05-00115-CV, 2006 WL 1707983, at *5 (Tex. App.CAustin, June 23, 2006, no pet.).  The trial court did not abuse its discretion under Section 74.351 because it did not give Williams more than 120 days to serve a report.

Certificates of service are important because they are prima facie evidence of proper service. Mathis, 166 S.W.3d at 745. While important, the certificate merely creates a presumption that an act took place on a particular date and should not be confused with the act itself B particularly since Rule 21a=s presumptions may be rebutted.  See Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994) (the presumption of service may be rebutted with evidence of nonreceipt). Consequently, when Dr. Patel challenged the date of service, the trial court had the authority to determine on what date the report was actually mailed.

Because no findings of fact were requested or filed, the trial court=s order is entitled to additional deference. We must uphold that order on any legal theory supported by the record, Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); and we must imply any necessary fact findings.  Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).  In this case, that requires that we imply a finding that the expert report was timely mailed.

Williams=s expert report was due on January 19.  The record contains conflicting evidence of whether Williams complied with this deadline.  The trial court=s letter ruling expresses a desire to avoid resolving this conflict, but Dr. Patel=s motion to dismiss and the trial court=s lack of authority to extend the statutory deadline necessarily required a resolution to this issue.  Moreover, the letter ruling is not competent evidence of the basis for the trial court=s order.  Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990). If, as Williams contends, the report was mailed on January 19, then it was timely; but if, as Dr. Patel contends, the report was mailed on January 20, then it was untimely and the trial court was required to dismiss the suit.  Because the trial court denied the motion to dismiss, we must infer that it resolved the conflicting evidence in Williams=s favor and determined that the report was mailed on January 19.

The conflicting evidence would support either finding.  Because the trial court is the fact- finder and, therefore, solely responsible for resolving conflicting evidence, we cannot say that it abused its discretion.  Dr. Patel=s issue is denied, and the trial court=s order denying the motion to dismiss is affirmed.

PER CURIAM

March 1, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.