Summary
In Barrera, the supreme court noted that the underlying facts were similar to Villafani and, therefore, concluded that this Court's "judgment that it lacked jurisdiction in this case is thus erroneous."
Summary of this case from Barrera v. RicoOpinion
No. 13-04-480-CV
Memorandum Opinion Delivered and Filed July 21, 2005.
On appeal from the 206th District Court of Hidalgo County, Texas.
Before Justices YAZEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Appellees sued appellant for medical negligence. The trial court then granted appellees' motion to compel the deposition of appellant and motion to extend the deadline for filing an expert report pursuant to the Texas Medical Liability and Insurance Improvement Act. After appellees filed an expert report, appellant filed a motion for sanctions and for dismissal with prejudice, contending that the report was filed untimely. The trial court denied appellant's motion, and appellant subsequently filed a second motion for sanctions and for dismissal with prejudice, this time contending that the report was inadequate. The trial court denied appellant's second motion. Appellees then filed a notice of nonsuit on their claims against appellant, see TEX. R. CIV. P. 162, and the trial court dismissed the claims without prejudice. Subsequently, appellant appealed to this Court, challenging the trial court's denial of his two motions. We conclude that this Court lacks subject matter jurisdiction to review the two interlocutory orders because they were rendered moot by the trial court's subsequent dismissal of the case. See FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). The nonsuit vitiated the orders and rendered moot any controversy regarding them. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). This appeal is therefore dismissed for lack of jurisdiction.
See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (as amended) (former TEX. REV. CIV. STAT. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. Rem. Code §§ 74.001 et seq.).
DISSENTING MEMORANDUM OPINION
I respectfully dissent. This appeal stems from the denial of two motions to dismiss and for sanctions alleging failure to comply with the statutory requirements to provide adequate expert reports. TEX. REV. CIV. STAT. ANN. art. 4590i 13.01 (Vernon Supp. 2002) (recodified as Tex. Civ. Prac. Rem. Code Ann. 74.351 (Vernon Supp. 2004-05)). I agree that the orders denying the motions to dismiss and for sanctions were interlocutory when denied. However, because the case is a pre-amendment case, interlocutory appeal was unavailable. See TEX. CIV. PRAC. REM. CODE ANN. 51.014(a)(9) (Vernon Supp. 2004-05). I would hold that the orders became final and appealable when the trial court dismissed the case without prejudice. Respectfully, I conclude that we have jurisdiction.