Cody Bernard, Individually and as Representative of the Estate of Paul Bernard, and Blake Bernard v. Alexander Wesley, M.D. Memorial Hermann Health System D/B/A Memorial Hermann Katy Hospital Yasir Elhawi, M.D. CHI St. Luke's Health - the Woodlands Hospital

• Court: Court of Appeals of Texas
• Decided: July 12, 2021
• Docket: 05-21-00291-CV
• Status: Published

Opinion

DISMISS and Opinion Filed July 12, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00291-CV

CODY BERNARD, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF PAUL BERNARD, AND BLAKE BERNARD, Appellants V. ALEXANDER WESLEY KADIN, M.D., MEMORIAL HERMANN HEALTH SYSTEM D/B/A MEMORIAL HERMANN KATY HOSPITAL, CHI ST. LUKE’S HEALTH – THE WOODLANDS HOSPITAL, YASIR ELHAWI, M.D., AND HEINE RUIZ, M.D., Appellees

On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2020-53620

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Smith Opinion by Chief Justice Burns

This interlocutory appeal, from the trial court’s orders granting appellees’

individual motions to dismiss the underlying health care liability claims against

them, was brought pursuant to section 51.014(a)(10) of the Texas Civil Practice and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10). Because

section 51.014(a)(10) does not authorize the appeal and neither does any other statute or rule, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a).

It is well-established that an appeal may only be taken from a final judgment

that disposes of all parties and claims or from an interlocutory order as authorized

by statute. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).

Of the interlocutory rulings a trial court may make in a health care liability suit,

appellate review is allowed for just two: (1) an order denying relief under section

74.351(b) and (2) an order granting relief under section 74.351(l). See CIV. PRAC.

& REM. CODE §§ 51.014(a)(9),(10); Lewis v. Funderburk, 253 S.W.3d 204, 207

(Tex. 2008). Both sections allow for challenges to the expert report required to be

served on the defendant no later than 120 days after the date the defendant’s answer

is filed, see CIV. PRAC. & REM. CODE § 74.351(a), but section 74.351(b) applies once

the 120-day window has closed and further allows the defendant to move for

dismissal of the claim with prejudice and for reasonable attorney’s fees and costs.

See Funderburk, 253 S.W.3d at 207 (comparing sections 74.351(b) and (l)).

The record here reflects the expert reports were timely served, and the motions

to dismiss were filed after the 120-day window had closed. The record further

reflects the motions to dismiss challenged the sufficiency of appellants’ expert

reports and, except for one, requested mandatory attorney’s fees and costs. The

appealed orders sustained the objections to the reports and dismissed the claims

–2– against appellees but did not determine the amount of fees and costs to be awarded,

with one order specifically stating that the amount was “TBD.”

Given the record, we questioned whether section 51.014(a)(10) authorized the

appeal. In jurisdictional briefing filed at our request, appellants urge the appeal is

authorized under that section because, by sustaining the challenges, the orders

granted relief under section 74.351(l). Alternatively, they argue the orders are final

because all defendants have been dismissed.

Although the orders sustained appellees’ challenges to the reports, the orders

further dismissed the claims against appellees. An order that dismisses a health care

liability claim is an order under section 74.351(b). See Funderburk, 253 S.W.3d at

207. And, while all defendants may have been dismissed, the orders are not final

because the claims for fees and costs remain pending.1 See Jack B. Anglin, 842

S.W.2d at 272.

Because the appealed orders granted relief under section 74.351(b) and did

not address attorney’s fees and costs, they are unappealable interlocutory orders.

Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III 210291F.P05 CHIEF JUSTICE 1 Appellants request that, in the event we determine the judgment is not final, we grant them sixty days to secure a final judgment. Nothing before us, however, reflects a hearing on the issue of fees and costs is imminent or has even been set. Accordingly, we decline the request. –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CODY BERNARD, On Appeal from the 215th District INDIVIDUALLY AND AS Court, Harris County, Texas REPRESENTATIVE OF THE Trial Court Cause No. 2020-53620. ESTATE OF PAUL BERNARD, Opinion delivered by Chief Justice AND BLAKE BERNARD, Burns, Justices Molberg and Smith Appellants participating.

No. 05-21-00291-CV V.

ALEXANDER WESLEY KADIN, M.D., MEMORIAL HERMANN HEALTH SYSTEM D/B/A MEMORIAL HERMANN KATY HOSPITAL, CHI ST. LUKE’S HEALTH - THE WOODLANDS HOSPITAL, YASIR ELHAWI, M.D., AND HEINE RUIZ, M.D., Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

–4– We ORDER that appellees Alexander Wesley Kadin, M.D., Memorial Hermann Health System d/b/a Memorial Hermann Katy Hospital, CHI St. Luke’s Health - The Woodlands Hospital, Yasir Elhawi, M.D., and Heine Ruiz, M.D. recover their costs, if any, of this appeal from appellants Cody Bernard, Individually and as Representative of the Estate of Paul Bernard, and Blake Bernard.

Judgment entered July 12, 2021.

–5–