J. Christian Cather, M.D. and J. Christian Cather, M.D., PLLC v. Madelyn Dean

• Court: Court of Appeals of Texas
• Decided: September 17, 2020
• Docket: 05-20-00737-CV
• Status: Published

Opinion

Dismiss; Opinion Filed September 17, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00737-CV

J. CHRISTIAN CATHER, M.D. AND J. CHRISTIAN CATHER, M.D., PLLC, Appellants V. MADELYN DEAN, Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-06165

MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Nowell Opinion by Justice Nowell

Before the Court is appellants’ motion for extension of time to file a petition

for permissive appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)

(authorizing trial court to permit interlocutory appeal from otherwise unappealable

interlocutory order under certain circumstances), (f) (requiring party seeking to

appeal to petition appellate court for permission); TEX. R. APP. P. 28.3 (governing

procedure for filing petition for permissive appeal). Appellants assert the extension

is necessary because the order to be appealed does not fully comply with the requirements of Texas Rule of Civil Procedure 168, which sets forth the process for

initiating a permissive appeal.

Under Rule 168, a trial court may permit an appeal from an otherwise

unappealable interlocutory order. TEX. R. CIV. P. 168. To do so, the trial court must

sign a written order stating, in relevant part, its permission to appeal. See id. The

date the order stating the court’s permission is signed triggers the deadline for filing

the petition for permissive appeal. See TEX. R. APP. P. 28.3(c). Without a written

order stating the trial court’s permission, no basis for filing a petition for permissive

appeal exists. See Hebert v. JJT Constr., 438 S.W.3d 139, 142 (Tex. App.—Houston

[14th Dist.] 2014, no pet.).

The clerk’s record that has been filed includes the order to be appealed as well

as an amended order. Neither order includes a statement of permission.

Accordingly, no basis for filing a petition for permissive appeal exists, and the

motion for extension of time is premature. See id. We dismiss the motion and appeal

for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

200737F.P05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

J. CHRISTIAN CATHER, M.D. On Appeal from the 191st Judicial AND J. CHRISTIAN CATHER, District Court, Dallas County, Texas M.D., PLLC, Appellants Trial Court Cause No. DC-20-06165. Opinion delivered by Justice Nowell, No. 05-20-00737-CV V. Justices Whitehill and Molberg participating. MADELYN DEAN, Appellee

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

We ORDER that appellee Madelyn Dean recover her costs, if any, of this appeal from appellants J. Christian Cather, M.D. and J. Christian Cather, M.D., PLLC.

Judgment entered this 17th day of September, 2020.

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