Opinion
04-21-00575-CV
01-26-2022
Nancy CISNEROS, Individually and as Director of Nursing, Luis Manuel Mauricio, Individually and as Director of Nursing, and Touchstone Communities, Inc., Appellants v. Sylvia G. VALDEZ, Individually and as Administrator of the Estate of Josefina Leonor Trevino Gonzalez, Appellee
From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2020CVB001938D3 Honorable Sandee Bryan Marion, Judge Presiding
Senior Appellate Judge, sitting by assignment.
Sitting: Luz Elena D. Chapa, Justice, Irene Rios, Justice, Beth Watkins, Justice
MEMORANDUM OPINION
PER CURIAM
On December 16, 2021, Appellants Nancy Cisneros, Individually and as Director of Nursing, Luis Manuel Mauricio, Individually and as Director of Nursing, and Touchstone Communities, Inc. filed a notice of appeal of the trial court's order dated November 29, 2021.
The notice of appeal provides the order is an appealable interlocutory order pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(9) because it "denie[d] all or part of the relief sought by a motion under Section 74.351(b) of the Texas Civil Practice and Remedies Code." Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). After reviewing the November 29, 2021 order along with the underlying motion in the clerk's record, the order did not appear to be appealable under section 51.014(a)(9). We therefore ordered appellants to file a response showing why the appeal should not be dismissed for lack of jurisdiction.
In their response, appellants argue the order denying their motion to enforce the prior dismissal order with prejudice is an appealable interlocutory order under section 51.014(a)(9) because section 74.351(b) was referenced seventeen times in the pleadings and during the hearing on their motion. They further argue the order is appealable because a prior lawsuit brought by appellees was dismissed with prejudice pursuant to section 74.351(b). Presumably appellants are referring to the same argument they made in their motion to enforce: Appellants are employees or affiliates of the defendants in the prior lawsuit and were therefore within the Chapter 74 definition of "health care provider" when the previous lawsuit was dismissed. As a result, the dismissal of the prior lawsuit applied to them, too.
Section 51.014(a)(9) provides a person may appeal an interlocutory order that "denies all or part of the relief sought by a motion under Section 74.351(b)." Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). Section 74.351(b) provides, in pertinent part, that "[i]f, as to a . . . healthcare provider, an expert report [] has not been served" within 120 days, the trial court, on the motion of the health care provider, shall enter an order dismissing the claim with prejudice and awarding reasonable attorney's fees and costs. Tex. Civ. Prac. & Rem. Code § 74.351(b).
We review the substance of a pleading to determine its nature. Max Adler, M.D., P.A. v. Lindsey, No. 05-20-00148-CV, 2020 WL 4880166, at *1 (Tex. App.-Dallas Aug. 20, 2020, no pet.) (mem. op.) (citing State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)). Although appellants reference section 74.351(b) in their motion to enforce, they do not contend their motion sought dismissal based on an untimely or unfiled expert report in the present lawsuit. See Tex. Civ. Prac. & Rem. Code § 74.351(b). Instead, they moved to dismiss the current petition because the trial court granted a 74.351(b) motion in a previous lawsuit. This does not constitute a motion to dismiss a claim with prejudice based on an untimely or unfiled expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(b); Max Adler, 2020 WL 4880166, at *1 ("Although appellants filed a 'Chapter 74 Motion to Dismiss', they did not seek relief under section 74.351(b). Rather, appellants focused on the fact that appellant filed a similar lawsuit in 2011 that was dismissed with prejudice for failure to file an expert report.").
Because appellants did not seek relief under section 74.351(b) in their motion, the court's order did not "den[y] all or part of the relief sought by a motion under Section 74.351(b)." Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). This court therefore does not have jurisdiction to hear this appeal. See Max Adler, 2020 WL 4880166, at *1 (dismissing interlocutory appeal for want of jurisdiction under section 51.014(a)(9) where order being appealed denied appellants' chapter 74 motion which sought dismissal on res judicata and collateral estoppel grounds because previous lawsuit dismissed with prejudice under 74.351(b)).
We therefore dismiss the appeal for lack of jurisdiction.