Rosemond v. Al-Lahiq
331 S.W.3d 764
| Tex. | 2011Background
- Rosemond sued Memorial Hermann Hospital System and Dr. Al-Lahiq for alleged failure to provide physical therapy during immobilization, causing contractures.
- Rosemond served an expert report and CV on Feb 6, 2008, two days before the 120-day deadline, via a paralegal fax after technical difficulties.
- Hospital received the report; Dr. Al-Lahiq’s counsel allegedly did not.
- Dr. Al-Lahiq moved to dismiss on grounds of untimely service (Feb 22, 2008) and adequacy of the report (Feb 26, 2008), and a third motion (Mar 3, 2008) challenged timeliness with a defense IT affidavit.
- Trial court dismissed with prejudice based on adequacy grounds (second motion); court of appeals affirmed, suggesting timeliness issue supported the dismissal.
- Texas Supreme Court granted review to resolve whether timeliness or adequacy supported dismissal and to remand for adequacy review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service as prerequisite to dismissal | Rosemond argues timely service is proven or disputed facts; timeliness must be resolved first | Al-Lahiq asserts untimely service justifies dismissal; timeliness is a threshold issue | Timeliness not resolved in favor of Al-Lahiq; remand for adequacy review only |
| Adequacy of expert report under 74.351(l),(r)(6) | If timely service not conclusively established, adequacy ruling moot | Court should review adequacy if timely service is resolved in favor of dismissal | Remand to review adequacy and trial court's order in light of that inquiry |
| Appellate implicit findings on timeliness | Court of Appeals improperly inferred trial court resolved timeliness in defendant's favor | Trial court implicitly ruled on timeliness via the ordering | We reject implied timeliness ruling; remand for adequacy review |
Key Cases Cited
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (timeliness as threshold prerequisite under 74.351)
- Davis v. Huey, 571 S.W.2d 859 (Tex. 1978) (judgment validity when supported by the record)
- Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (implied findings on appeal to support judgment)
- State v. Heal, 917 S.W.2d 6 (Tex. 1996) (implied necessary findings summarizing judgment)
- Roberson v. Robinson, 768 S.W.2d 280 (Tex. 1989) (per curiam; implied findings rule)
- In re Watkins, 279 S.W.3d 633 (Tex. 2009) (interlocutory remedy under 74.351)
- Am. Trans. Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (abuse of discretion standard in health care liability claims)
- Lewis v. Funderburk, 253 S.W.3d 204 (Tex. 2008) (interlocutory review avenues under 74.351)