Opinion
No. 05-16-00120-CV
04-08-2016
THE ESTATE OF CARMELINA "MILLIE" SMITH, BY AND THROUGH ITS REPRESENTATIVE, CHRISTINE FABER, INDIVIDUALLY AND ON BEHALF OF ALL KNOWN HEIRS, Appellant v. COLLIN CREEK ASSISTED LIVING CENTER, INC. D/B/A DAYSPRING ASSISTED LIVING COMMUNITY, Appellee
On Appeal from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 219-02547-2015
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang-Miers and Stoddart
Opinion by Chief Justice Wright
Appellant appeals the trial court's January 19, 2016 interlocutory order dismissing its claims against appellee for failure to file an expert report. Appellant's claims against a second defendant remain pending in the trial court. In its brief on the merits, appellee asserts that this Court lacks jurisdiction over this interlocutory appeal. We agree.
A party may bring an interlocutory appeal of rulings in medical liability cases in two circumstances. First, a party may appeal when the trial court denies a motion to dismiss under section 74.351(b) for failure to file an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2015). Second, a party may appeal when a trial court grants a motion to dismiss pursuant to 75.351(l), based on a timely served, but inadequate, expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (West Supp. 2015). The order appealed in this case, however, grants dismissal based on failure to serve an expert report. The civil practice and remedies code does not authorize appeal of such orders. See Fisher v. Medical Center of Plano, No. 05-14-01441-CV, 2015 WL 73441, at *2 (Tex. App.—Dallas Jan. 6, 2015, no pet.) (mem. op.); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9), (10).
Because the order is neither a final judgment nor an appealable interlocutory order, this Court lacks jurisdiction. Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 160120F.P05
JUDGMENT
On Appeal from the 219th Judicial District Court, Collin County, Texas.
Trial Court Cause No. 219-02547-2015.
Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee COLLIN CREEK ASSISTED LIVING CENTER, INC. D/B/A DAYSPRING ASSISTED LIVING COMMUNITY recover its costs of this appeal from appellant THE ESTATE OF CARMELINA "MILLIE" SMITH, BY AND THROUGH ITS REPRESENTATIVE, CHRISTINE FABER, INDIVIDUALLY AND ON BEHALF OF ALL KNOWN HEIRS. Judgment entered this 8th day of April, 2016.