In thе underlying suit, a physician filed three motions to dismiss, each alleging the
On October 11, 2007, Ulysses Rosemond sued Memorial Hermann Hospital System (the Hospital), Dr. Maha Khalifa Al-Lahiq, and other entities, alleging that their failure to provide physical therapy while he was immobilized and subject to prоlonged bed rest caused him to develop severe contractures. 1 Rosemond’s counsel faxed an expert report and curriculum vitae to attorneys for both the Hospital and Dr. Al-Lahiq on February 6, 2008, two days before thе 120-day statutory deadline required for health care liability claims. Tex. Civ. Prac. & Rem.Code § 74.351(a). Rose-mond’s counsel experienced technical difficulties faxing the report by computer, and ultimately a paralegal faxed the report using the fax machine of an engineering company that shared office space with the law firm. The fax transmissions yielded a confirmation sheet for each indicating that the transmission took about four minutes аnd that the result was “OK.” The Hospital, which was later non-suited, apparently admits it received the fax containing the expert report. Dr. Al-Lahiq’s law firm maintains it did not.
After the 120-day deadline for serving the expert report had passed, Dr. Al-Lа-hiq filed three motions to dismiss. Two of the motions asserted failure to timely serve an expert report as the ground for dismissal. The other was based on an objection to the adequacy of the expert report and requеsted dismissal on that basis.
The first motion, filed on February 22, 2008, was styled “Motion for Dismissal Pursuant to Tex. Civ. Prac. & Rem.Code § 74.351.” It asserted that as of February 8, 2008 (the 120-day deadline), Dr. Al-Lahiq had not been served with an expert report. The motion accordingly rеquested dismissal with prejudice for failure to timely serve an expert report. See id. § 74.351(b).
The second, an “Objection to the Sufficiency of Plaintiffs Expert Report and Motion to'Dismiss Made Subject to Defendant’s Motion for Dismissal Pursuant to Tex. Civ. Prac. & Rem.Code § 74.351,” was filed February 26, 2008. The motion was specifically subject to the prior motion asserting lack of timely service, not only in its title, but also in a footnote stating: “Defendant did not receive this report until after the 120-day dеadline imposed by CPRC 74.351 and, as such, files this Objection and Motion
subject to
a previously filed Motion to Dismiss for Plaintiffs fail
Dr. Al-Lahiq filed her third and final motion on March 3, 2008, styled “Supplemental Motion for Dismissal Pursuant to Tex. Civ. Prac. & Rem.Code § 74.351.” In it, she supplemented her first motion by preemptively denying Rosemond’s assertion that an expert reрort was faxed to Dr. Al-Lahiq’s counsel on February 6, 2008, two days before the deadline. In support, the motion included an affidavit by defense counsel’s information technology administrator, averring that a search of the law firm’s databases and records revealed no trace of such a fax. 2 On that basis, the Supplemental Motion again urged the trial court to dismiss with prejudice for failure to timely serve an expert report on Dr. Al-Lahiq, as required by section 74.351(b).
The trial court dismissed Rosemond’s case with prejudice by signing the draft order attached to the second of the three motions, which concerned the adequacy of the expert report. No findings of fact or conclusions of law were requested or filed. In a memorandum opinion, the court of appeals affirmed the dismissal, concluding that the trial court “did not abuse its discretion in dismissing the claims based on a determination that the expert rеport was not timely filed.”
Generally, an appellate court reviews a trial court’s dismissal of a health care liability claim under an abuse of discretion standard of review.
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
In affirming the trial court’s dismissal, the court of appeals reasoned that “[bjecausе the trial court granted Dr. Al-Lahiq’s motion to dismiss, we must infer that the trial court resolved any factual dispute regarding timely service of the expert report ... in favor of Dr. AI-La-hiq.”
Because Dr. Al-Lahiq submitted a draft order with each of her three motions, the trial court had three different draft orders to choose from, each asserting its own ground for dismissal. Of those three, the trial court chose to sign the second draft order, which was attached to a motion attacking the adequacy of Rosemond’s expert report at length, but which included no argument as to untimely service. In
Further, before the trial court could rule on the report’s adequacy, it had to сonclude that the report was timely served. Otherwise, the trial court’s only option was to dismiss the claim for failure to timely serve an expert report. Hence, we conclude the trial court implicitly overruled the first motiоn to dismiss. This is made plain by the title of the second motion and footnote therein stating that dismissal based on inadequacy of the expert report is only sought subject to the prior motion seeking dismissal for untimely service. 3 In other words, Dr. Al-Lahiq only sought relief under her second motion if the trial court declined to dismiss based on timeliness under the first.
The issue of timeliness is a threshold issue in the expert report framework the Legislature enacted. In order to rule on the merits of the report’s adequacy, and have the authority under sеction 74.351 to grant an extension, a trial court must first determine whether the report was timely served.
See Ogletree v. Matthews,
Finally, on appellate rеview, we imply only those findings of fact that are
necessary
to support the judgment.
See State v. Heal,
Because the record demonstrates the trial court did not implicitly rule in favor of Dr. Al-Lahiq on the timeliness issue, the remaining issue — which the trial court resolved in favor of Dr. Al-Lаhiq and which the court of appeals did not reach — is the adequacy of the expert report. As a result, we remand this case to the court of appeals for consideration of whether the trial court abused its discretion in concluding the expert report was inadequate.
For the foregoing reasons, we grant the petition for review and, without hearing oral argument, Tex.R.App. P. 59.1, reverse the judgment of the court of appeаls and remand the case to that court for (1) consideration of the adequacy of Rosemond’s expert report, and (2) review of the trial court’s order dismissing Rosemond’s health care liability claim in light of that inquiry.
Notes
. As defined in Rosemоnd's petition, contrac-tures are "the chronic loss of joint motion due to structural changes in non-bony tissue.” They apparently occur when a bedridden patient is not given adequate physical therapy over a prolonged period of time. Rosemond claims that he has lost the use of his hands and legs as a result, and that surgery cannot repair his injuries.
. This was the first salvo in a fact dispute between the parties over whether the fax was ever received. Rosemond ultimately produced (1) an affidavit from his counsel, and (2) the aforementioned fax confirmation sheet stating that the transmission status was "OK,” as evidence showing actual receipt by defense counsеl. He also requested discovery of defense counsel's fax machine and an evi-dentiary hearing. Rosemond further requested a thirty-day extension to cure any deficiencies in the report. See Tex. Civ. Prac. & Rem. Code § 74.351(c). As discussed below, we conclude the court of appeals incorrectly inferred that the trial court resolved this factual dispute in favor of Dr. Al-Lahiq and do not review the propriety of the trial court’s determination.
. As an aside, it was
ex ante
entirely logical fоr Dr. Al-Lahiq to have made her second motion subject to her first. As this Court explained previously, the Legislature has provided only two avenues for interlocutory review under section 74.351.
Lewis v. Funderburk,