Nevillyn Wettermark, Individually and as Representative of the Estate of Evelyn Juanita Padgett The Estate of Evelyn Juanita Padgett v. James Michael Orms, MD, Individually David A. Latham, MD, Fairfield Enterprises, LLC D/B/A Fairfield Nursing and Rehabilitation East Texas Medical Center Regional Healthcare System East Texas Medical Center Fairfield

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 10-17-00165-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00165-CV

NEVILLYN WETTERMARK, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF EVELYN JUANITA PADGETT; THE ESTATE OF EVELYN JUANITA PADGETT, Appellants v.

JAMES MICHAEL ORMS, MD, INDIVIDUALLY; DAVID A. LATHAM, MD, FAIRFIELD ENTERPRISES, LLC D/B/A FAIRFIELD NURSING AND REHABILITATION; EAST TEXAS MEDICAL CENTER REGIONAL HEALTHCARE SYSTEM; EAST TEXAS MEDICAL CENTER FAIRFIELD, Appellees

From the 87th District Court Freestone County, Texas Trial Court No. CV 16-276-B

ORDER

On May 12, 2017, Appellants Nevillyn Wettermark, individually and as

representative of the Estate of Evelyn Juanita Padgett, and the Estate of Evelyn Juanita Padgett filed a notice of appeal in the trial court, stating that they desired to appeal from

an April 12, 2017 order. The clerk’s record was subsequently filed in this appeal, and it

contained no final judgment or other appealable order. Accordingly, on June 20, 2017,

the Clerk of this Court notified Appellants that this appeal was subject to dismissal

because it appeared that the Court lacked jurisdiction. The Clerk’s letter stated that the

Court may dismiss this appeal unless, within ten day of the date of the letter, a response

was filed showing grounds for continuing the appeal.

On June 30, 2017, Appellants filed a motion to retain the appeal on the docket.

Appellants state that the April 12, 2017 order was not a final order but that a final

appealable order was signed on June 9, 2017. Appellants state that they now desire to

appeal from the June 9, 2017 order. Appellants attached the June 9, 2017 order and an

amended notice of appeal to the motion to retain. A supplemental clerk’s record

containing the order and amended notice of appeal has also been filed in this appeal.

Appellants state that the June 9, 2017 order is a final order, but it appears to be

interlocutory because it does not dispose of all pending parties and claims. See Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“A judgment is final for purposes of

appeal if it disposes of all pending parties and claims in the record, except as necessary

to carry out the decree.”). It appears that nothing in the clerk’s record disposes of

Appellants’ claims against Fairfield I Enterprises, LLC d/b/a Fairfield Nursing and

Rehabilitation.

If the June 9, 2017 order is interlocutory, it may nevertheless be appealable. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West Supp. 2016). But the appeal would

Wettermark v. Orms Page 2 be an accelerated appeal. See TEX. R. APP. P. 28.1(a). Accordingly, Appellants’ notice of

appeal must have been filed within twenty days after the order was signed. See TEX. R.

APP. P. 26.1(b), 28.1(b). Appellants filed their amended notice of appeal twenty-one days

after the order was signed.

Appellants do not state that the June 9, 2017 order modified or replaced the April

12, 2017 order; therefore, it appears that Appellants’ initial notice of appeal cannot be

considered a prematurely filed notice of appeal. See TEX. R. APP. P. 27.1(a), 27.3; In re R.A.,

465 S.W.3d 728, 740 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). But if a notice

of appeal is filed within the fifteen-day window for filing a motion for extension of time

to file notice of appeal, we must imply a motion for extension of time if an appellant can

show a reasonable explanation for the late filing of the notice of appeal. See In re B.G., 104

S.W.3d 565, 567 (Tex. App.—Waco 2002, order); TEX. R. APP. P. 26.3.

Therefore, within fourteen days of the date of this order, Appellants are ordered

to (1) inform this Court in writing whether the June 9, 2017 order is actually final or

interlocutory; (2) if interlocutory, file an amended notice of appeal that states that the

appeal is accelerated, see TEX. R. APP. P. 25.1(d)(6), (g); and (3) if interlocutory, provide

this Court a reasonable explanation for the late filing of Appellants’ notice of appeal.

Meanwhile, Appellants’ motion to retain this appeal on the docket remains pending.

PER CURIAM

Wettermark v. Orms Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed August 2, 2017 Do not publish

Wettermark v. Orms Page 4