Rosemond v. Al-Lahiq, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore)
(med mal suit, untimely, insufficient expert report, Rule 21a presumption of receipt and rebuttal)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost)
14-08-00550-CV Ulysses L. Rosemond v. Maha Khalifa Al-Lahiq, M.D.
Appeal from 133rd District Court of Harris County
Trial Court Judge: LAMAR MCCORKLE
M E M O R AN D U M O P I N I O N
This appeal arises from the trial court's granting of a physician's motion to dismiss health-care liability claims.
The physician moved to dismiss the claims, alleging that the plaintiff's medical expert report was insufficient
and not timely served under section 74.351 of the Texas Civil Practice and Remedies Code. We affirm.
I. Factual and Procedural Background
Appellant Ulysses L. Rosemond filed health-care liability claims against a hospital and appellee physician
Maha Khalifa Al-Lahiq. In his live petition, dated October 11, 2007, Rosemond claimed that the hospital and
Dr. Al-Lahiq negligently failed to order physical therapy for him during his hospitalization in September 2007,
to prevent the onset of contractures[1] that he claims caused injuries and damages. According to the petition,
Dr. Al-Lahiq repeatedly indicated that she ordered physical therapy when questioned about Rosemond's
developing contractures.
In attempting to comply with section 74.351 of the Texas Civil Practice and Remedies Code,[2] Rosemond
designated Dr. Howard Katz, a doctor of physical medicine and rehabilitation, as an expert witness to provide a
written expert report and his curriculum vitae. Rosemond claimed to have faxed the expert report and
curriculum vitae to both the hospital and Dr. Lahiq's attorneys on February 6, 2008, two days before the
expiration of the 120-day deadline imposed in section 74.351(a).
Dr. Al-Lahiq first filed a motion to dismiss Rosemond's claims, asserting that Rosemond did not timely file an
expert report in accordance with section 74.351(a).[3] Dr. Al-Lahiq next filed a motion to dismiss Rosemond's
claims and made that motion subject to the first motion, challenging both Dr. Katz's qualifications to provide an
opinion in the expert report and the adequacy of the report in meeting the requirements of section 74.351.[4]
Dr. Al-Lahiq then filed a supplemental motion to dismiss the claims under section 74.351, alleging that she was
not timely served with the expert report within 120 days, in anticipation of Rosemond's claims that two
confirmation pages from a fax machine indicated receipt of the expert reports that Rosemond claimed to have
served on both the hospital and Dr. Al-Lahiq.[5]
The trial court held a hearing on the motions. The trial court dismissed Rosemond's claims in an order
entitled, AOrder Sustaining Defendant, Maha Khalifa Al-Lahiq, M.D.'s Objections to the Sufficiency of Plaintiff's
Expert Report and Granting Defendant's Motion for Dismissal Pursuant to Tex. Civ. Prac. & Rem. Code §
74.351." Rosemond, in three issues, challenges the trial court's dismissal of his claims, claiming the trial court
abused its discretion in dismissing the claims under section 74.351.
II. Standard of Review
We review a trial court's ruling on a motion to dismiss health care liability claims for alleged untimely service
under an abuse-of-discretion standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex. App.- Houston [14th Dist.]
2005, pet. denied). A trial court's determination regarding the adequacy of an expert report is also reviewed
under an abuse-of-discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 875 (Tex. 2001). The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to guiding rules or principles. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985). An abuse of discretion does not occur
merely because the appellate court may have decided a discretionary matter in a different way than the trial
court. Downer, 701 S.W.2d at 242. In our review, we defer to the trial court's factual determinations, but we
review questions of law de novo. Mokkala, 178 S.W.3d at 70. To the extent that resolution of the issue before
the trial court requires interpretation of the statute, we review under a de novo standard. Id.; see also Univ. of
Tex. Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.- Houston [1st Dist.] 2007, pet. denied).
III. Analysis
In its order, the trial court both sustained Dr. Al-Lahiq's objections to the sufficiency of the report and granted
Dr. Al-Lahiq's motion for dismissal under section 74.351. Rosemond claims in his third issue that if the basis
of the trial court's dismissal was for Afailure to timely serve the expert report," the trial court abused its
discretion in dismissing the claims because fact issues remain regarding service of the report under section
74.351.
Under section 74.351, a claimant, not later than the 120th day after the date a health-care-liability claim is
filed, must serve on each party one or more expert witness reports addressing liability and causation. Tex.
Civ. Prac. & Rem. Code Ann. §§ 74.351(a), (j) (Vernon 2005); Lewis v. Funderburk, 253 S.W.3d 204, 205
(Tex. 2008). Because the term Aserve," is not defined in section 74.351, to fulfill the requirements of section
74.351(a), a claimant seeking to serve an expert report on a medical care provider under section 74.351(a)
must comply with Texas Rule of Civil Procedure 21a, entitled AMethods of Service." Awoniyi v. McWilliams,
261 S.W.3d 162, 164 (Tex. App.- Houston [14th Dist.] 2008, no pet.); Gutierrez, 237 S.W.3d at 872. This rule
authorizes four methods of service upon a party: (1) by delivery in person, by agent, or by courier-receipted
delivery; (2) by certified or registered mail; (3) by telephonic document transfer, such as fax; or (4) by any
such other manner as the court directs in its discretion. Tex. R. Civ. P. 21a; Gutierrez, 237 S.W.3d at 872.
Under Rule 21a, “[a] certificate by a party to an attorney of record, or the return of an officer, or the affidavit of
any person showing service of a notice shall be prima facie evidence of the fact of service." Tex. R. Civ. P.
21a; Spiegel v. Strother, 262 S.W.3d 481, 486 (Tex. App.- Beaumont 2008, no pet.). When a party has
certified that service was made by telephonic transfer to the correct number, a rebuttable presumption arises
that service was actually effected and the addressee was served. See Tex. R. Civ. P. 21a; Thomas v. Ray,
889 S.W.2d 237, 238 (Tex. 1994); Spiegel, 262 S.W.3d at 483; see also Berger v. King, No. 01-06-00871-CV,
2007 WL 1775991, at *3 (Tex. App.- Houston [1st Dist.] June 21, 2007, pet. denied) (mem. op.) (involving
service by fax under Rule 21a). The presumption, however, “vanishes" when a party presents verified proof of
non-receipt. See Tex. R. Civ. P. 21a; Thomas, 889 S.W.2d at 238 (requiring verified proof of non-receipt);
Spiegel, 262 S.W.3d at 483, 484, 486. Absent verified proof to the contrary, the presumption has the force of
a rule of law. Thomas, 889 S.W.2d at 238.
It is undisputed that the 120-day period in section 74.351(a) expired on February 8, 2008 (hereinafter the
“Statutory Deadline"). The record contains an affidavit from Rosemond's trial counsel in which she affirmed
that on February 6, 2008, two days before the Statutory Deadline, she encountered difficulties in transmitting
the expert report, and accordingly, used another entity's fax machine. In the affidavit, she stated, “The 15-
page report was faxed to Dr. Al-Lahiq's attorney, Larry Thompson at fax number 713-864-4671. The report
was faxed at 4:15 p.m. and was delivered “'o.k.'" In addition to attaching Dr. Katz's expert report and his
curriculum vitae, Rosemond attached to the affidavit two facsimile pages printed from the borrowed fax
machine, which indicate the “result" of “OK," as evidence that Dr. Al-Lahiq and the hospital were served with
the expert report before the expiration of the Statutory Deadline. Under Rule 21a, this affidavit and the
attached fax confirmation pages filed with the trial court gave rise to a rebuttable presumption that service was
effected. See Tex. R. Civ. P. 21a; Spiegel, 262 S.W.3d at 486; see also Berger, 2007 WL 1775991, at *3
(involving notice of hearing faxed to the correct number as giving rise to presumption under Rule 21a).
However, the Rule 21a presumption of service vanished because Dr. Al-Lahiq rebutted the presumption of
service by offering evidence of non-receipt. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780
(Tex. 1987) (determining that presumption of service vanishes upon proof of non-receipt); see also Patel v.
Williams, No. 11-06-00254-CV, 2007 WL 632989, at *3 (Tex. App.- Eastland 2007, no pet.) (involving
conflicting evidence as to whether a party achieved service under Rule 21a of an expert report within the 120-
day deadline under section 74.351(a)). The record reflects that both the hospital and Dr. Al-Lahiq filed
motions to dismiss Rosemond's claims on the basis that the expert report was not timely served in accordance
with section 74.351(a). Dr. Al-Lahiq filed a supplemental motion and attached to it a sworn affidavit from an
information technology administrator in the defense counsel's law firm asserting that he reviewed the firm's
electronic logging system, “received fax log," and “incoming electronic faxes." The administrator verified that
the law firm received no such document from either of the fax numbers specified by Rosemond on February 6,
2008, or on the days immediately preceding or following that date.
After a hearing on the hospital's motion and Dr. Al-Lahiq's motions, the trial court issued an order sustaining
Dr. Al-Lahiq's objections to the substantive adequacy of the expert report and granting Dr. Al-Lahiq's motion
to dismiss. Although Rosemond established the presumption of timely service, Dr. Al-Lahiq offered other
evidence to rebut the presumption. See Cliff, 724 S.W.2d at 780; see also Patel, 2007 WL 632989, at *3
(involving attorneys' affidavits providing conflicting evidence as to whether a party complied with Rule 21a in
serving an expert report within the 120-day deadline set forth in section 74.351(a)). Consequently, the parties
presented the trial court with conflicting evidence of service under Rule 21a in accordance with the 120-day
deadline imposed by section 74.351(a). See Patel, 2007 WL 632989, at *3.
By filing a motion to dismiss, alleging Rosemond's failure to serve the expert report within the 120-day
deadline, Dr. Al-Lahiq challenged the timeliness of service of the expert report. See id. The trial court had the
authority to determine on what date the expert report was actually received. See Tex. R. Civ. P. 21a
(authorizing a trial court to extend time or grant other relief deemed just upon finding that service under Rule
21a was not received); Bohannon v. Winston, 238 S.W.3d 535, 537-38 (Tex. App.- Beaumont 2007, no pet.);
see also Patel, 2007 WL 632989, at *3. Because no findings of fact or conclusions of law were requested or
filed, the trial court's order is entitled to additional deference. See Patel, 2007 WL 632989, at *3. We must
uphold the trial court's order on any legal theory supported by the record. See Davis v. Huey, 571 S.W.2d
859, 862 (Tex. 1978); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854 n.6 (Tex. App.- Texarkana 2006, no
pet.) (involving a failed fax transmission in serving an expert report); see also Patel, 2007 WL 632989, at *3.
Likewise, we must imply any necessary fact findings. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
83 (Tex. 1992); see also Patel, 2007 WL 632989, at *3. On this basis, we must imply a finding that the expert
report was not timely served. See Patel, 2007 WL 632989, at *3 (implying finding of timely service of expert
report under Rule 21a when in the face of attorneys' conflicting affidavits regarding timely service within 120
days, the trial court did not make determination of when the report was actually served, but rather denied the
doctor's motion to dismiss).
The parties do not dispute the Statutory Deadline. The record contains conflicting evidence as to whether
Rosemond timely served the expert report within the deadline set forth in section 74.351(a). See id. Because
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 under Rule 21a in favor of Dr. Al-Lahiq by determining
that the expert report was not timely served within the 120-day period prescribed by section 74.351(a). See
id. As fact-finder, the trial judge was solely responsible for resolving any conflicts in the evidence. See id.
We cannot say that the trial court abused its discretion in resolving this conflict. See id.
Section 74.351(b)(2), provides:
If, as to a defendant physician or health care provider, an expert report has not been served within the period
specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall
enter an order that
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of the
court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of
the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2) (Vernon 2005). Under subsection (b), absent an agreement
among the parties for an extension of time to serve the expert reports, a trial court has no discretion but to
dismiss the case with prejudice and award reasonable attorney's fees and costs if a claimant failed to meet the
120-day deadline in subsection (a). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b); Rivenes v. Holden,
257 S.W.3d 332, 336 (Tex. App.- Houston [14th Dist.] 2008, pet. denied) (providing that when an expert report
is not timely served, the trial court must dismiss the case with prejudice under section 74.351(b));
Thoyakulathu, 192 S.W.3d at 852 (involving a failed fax transmission in serving an expert report within the 120-
day deadline). In this case, neither the record nor the parties suggest that the parties agreed to an extension
of time in serving the expert report. See Mokkola, 178 S.W.3d at 76. Therefore, the trial court did not abuse
its discretion in dismissing Rosemond's claims under section 74.351(b)(2). See Awoniyi, 261 S.W.3d at 164;
Thoyakulathu, 192 S.W.3d at 852; see also Patel, 2007 WL 632989, at *3. Accordingly, we overrule
Rosemond's third issue.
Likewise, the trial court did not abuse its discretion in not allowing thirty days to cure any alleged deficiencies
in the report because the report was not timely filed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)
(providing that a trial court may dismiss claims with prejudice if an expert report is not timely filed within the
period specified by section 74.351(a)); Thoyakulathu, 192 S.W.3d at 852B53 (declining to apply thirty-day
extension to cure deficiencies in an expert report when the report was not timely served). Therefore, we
overrule Rosemond's second issue.
Because we conclude that the trial court did not abuse its discretion in dismissing the claims based on a
determination that the expert report was not timely filed in accordance with section 74.351(a), we do not reach
the merits of Rosemond's first issue in which he claims the trial court abused its discretion in dismissing his
claims because the expert report sufficiently met the requirements of section 74.351(r)(6). See St Luke's
Episcopal Hosp. v. Poland, __ S.W.3d __, __ No. 01-06-01038-CV, 2009 WL 350509, at *6 (Tex. App.-
Houston [1st Dist.] Feb. 6, 2009, pet. filed) (op. on reh'g) (declining to consider whether an expert report was
substantively deficient in light of conclusion that the expert report was not timely filed in accordance with
section 74.351(a) and Rule 21a); Estate of Regis ex Rel. McWashington v. Harris County Hosp. Dist., 208 S.W.
3d 64, 69 (Tex. App.- Houston [14th Dist.] 2006, no pet.).
The trial court's judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Chief Justice Hedges, and Justices Yates and Frost.
[1] According to Rosemond's petition, contractures are the “chronic loss of joint motion due to structural
changes in a non-bony tissue" that can affect any joint in the body.
[2] Unless otherwise stated, all references in this opinion to a section are to the corresponding section of the
Texas Civil Practice and Remedies Code.
[3] In her motion entitled, “Defendant, Maha Khalifa Al-Lahiq, M.D.'s Motion for Dismissal Pursuant to Tex. Civ.
Prac. & Rem. Code § 74.351," and dated February 22, 2008, Dr. Al-Lahiq alleged that the 120-day deadline
for filing an expert report had expired and that Rosemond did not seek any extension of time to file the report.
The record also reflects that as of February 18, 2008, the hospital claimed that Rosemond had not served the
hospital with an expert report either and accordingly filed a motion to dismiss the claims with prejudice.
Rosemond's claims against the hospital eventually were dismissed without prejudice.
[4] This motion, dated February 26, 2008, was entitled “Defendant, Maha Khalifa Al-Lahiq, M.D.'s Objection to
the Sufficiency of the Plaintiff's Expert Report and Motion to Dismiss Made Subject to Defendant's Motion for
Dismissal Pursuant to Tex. Civ. Prac. & Rem. Code § 74.351." In this motion, Dr. Al-Lahiq moved to dismiss
the claims, alleging that the expert report was both so deficient that it was tantamount to having filed no report
at all and untimely served within the 120-day deadline.
[5] The supplemental motion included a sworn affidavit from an information technology administrator,
employed by Dr. Al-Lahiq's counsel, who verified that the law firm's fax log did not reflect that any such
document was received by the firm between the dates of January 3, 2008, and February 27, 2008. Although,
it is clear from the record that Dr. Al-Lahiq eventually received the expert report and a curriculum vitae setting
forth Dr. Katz's credentials, it is unclear on what date Dr. Al-Lahiq received these documents. The transcript
from the hearing reflects that Rosemond's attorney claimed to have provided a copy of the expert report to Dr.
Al-Lahiq after Dr. Al-Lahiq filed the initial motion to dismiss.