Kingfisher Living, LLC D/B/A Ella Springs Senior Assisted Living Facility v. Annie Caldarera

• Court: Court of Appeals of Texas
• Decided: March 13, 2025
• Docket: 01-24-00665-CV
• Status: Published

Opinion

Opinion issued March 13, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00665-CV ——————————— KINGFISHER LIVING, LLC D/B/A ELLA SPRINGS SENIOR ASSISTED LIVING FACILITY, Appellant V. ANNIE CALDARERA, Appellee

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2023-42905

MEMORANDUM OPINION

On September 3, 2024, appellant, Kingfisher Living, LLC, doing business as

Ella Springs Senior Assisted Living Facility, filed a notice of interlocutory appeal

from the trial court’s August 13, 2024 “Order Denying Motion for Reconsideration

of [Appellant’s] Motion to Dismiss.” We dismiss the appeal for lack of jurisdiction.

This Court generally has jurisdiction only over appeals from final judgments

and specific interlocutory orders that the legislature has designated as appealable

orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014. Importantly, statutes authorizing

interlocutory appeals are strictly construed because they are a narrow exception to

the general rule that interlocutory orders are not immediately appealable. See CMH

Homes, 340 S.W.3d at 447. Our review of the record indicates that appellant has

not appealed from a final judgment or an otherwise appealable order.

In its notice of appeal, appellant identified the trial court’s August 13, 2024

“Order Denying Motion for Reconsideration of [Appellant’s] Motion to Dismiss” as

the appealed order. Appellant indicated that the appeal was interlocutory pursuant

to Texas Rule of Appellate Procedure 28.1(a). However, an interlocutory appeal

may only be taken where expressly permitted by the legislature. Appellant’s notice

of appeal, and the appellate record, include appellant’s “Motion for Reconsideration

of its Motion to Dismiss,” which led to the order appealed by appellant. In its motion

for reconsideration, appellant requested that the trial court reconsider its April 30,

2024 “Order Denying [Appellant’s] Motion to Dismiss.”

The appellate record reflects that the underlying motion to dismiss sought

dismissal of the trial court case because appellee, Annie Caldarera, plaintiff in the

2 trial court case, failed to provide an expert report as required by section 74.351 of

the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a) (“In a health care liability claim, a claimant shall, not later than the 120th

day after the date each defendant’s original answer is filed . . . serve on that party or

the party’s attorney one or more expert reports, with a curriculum vitae of each

expert listed in the report for each physician or health care provider against whom a

liability claim is asserted.”). The statute further states that where a plaintiff fails to

provide such an expert report, the health care provider may seek dismissal. See

TEX. CIV. PRAC. & REM. CODE ANN. §74.351(b) (where claimant fails to serve

required expert report, trial court, “on the motion of the affected physician or health

care provider, shall . . . enter an order” “dismiss[ing] the claim with respect to the

physician or health care provider, with prejudice to the refiling of the claim”).

Notably, an order denying a motion to dismiss pursuant to section 74.351(b) of the

Texas Civil Practice and Remedies Code has been designated by the legislature as

an appealable interlocutory order. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(9).

However, appellant did not appeal the trial court’s April 30, 2024 “Order

Denying [Appellant’s] Motion to Dismiss.” Instead, appellant moved to appeal the

trial court’s August 13, 2024 “Order Denying Motion for Reconsideration of

[Appellant’s] Motion to Dismiss.” An order denying a motion for reconsideration

3 is not an immediately appealable order. See Pahl v. Don Swaim, P.C., No.

05-12-01438, 2013 WL 3929238, at *2 (Tex. App.—Dallas July 26, 2013, no pet.);

see also Diggs v. Knowledge Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.—

Houston [1st Dist.] 2004, no pet.) (dismissing appeal for lack of jurisdiction,

concluding that orders denying motions to reconsider “are not independently

appealable”). Accordingly, it appears appellant has not appealed from a final

judgment, or an interlocutory order which the legislature has designated as

immediately appealable.

Further, as noted above, while the trial court’s April 30, 2024 “Order Denying

[Appellant’s] Motion to Dismiss” pursuant to section 74.351 of the Texas Civil

Practice and Remedies Code may have been appealable, appellant did not, and may

not now, seek an appeal from that order, because appellant failed to timely appeal

the trial court’s April 30, 2024 order. An interlocutory appeal from the “Order

Denying [Appellant’s] Motion to Dismiss,” signed by the trial court on April 30,

2024, was due no later than May 20, 2024. See TEX. R. APP. P. 26.1(b), 28.1

(designating interlocutory appeals as “accelerated”). Absent a timely filed notice of

appeal, this Court lacks jurisdiction over an appeal. See TEX. R. APP. P. 25.1.

Accordingly, on February 20, 2025, the Court issued an order directing

appellant to file a written response, with citation to law and the record, demonstrating

4 that the Court had jurisdiction over the appeal. Appellant was further notified that

the failure to adequately respond could result in dismissal of the appeal.

On March 3, 2025, appellant responded to the Court’s order, acknowledging

that it was “satisfied that the Court is correct in its perception that the Court lacks

jurisdiction over this appeal,” and that “[a]fter researching the issue,

[appellant] . . . found no error in the Court’s reasoning and . . . located no other

authority that would result in the Court having jurisdiction over the appeal.”1

Accordingly, based on appellant’s response to the Court’s February 20, 2025

order, agreeing that the Court lacks jurisdiction over its appeal, we dismiss the appeal

for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). All pending motions

are further dismissed as moot.

PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.

1 Appellant’s response to the Court’s February 20, 2025 order further noted that it had made an “alternative request that its appeal be considered a petition for writ of mandamus,” but stated that appellant had also “conclude[d] that request [was] not viable either.”