the Estate of Carmelina "Millie" Smith, by and Through Its Representative, Christine Faber, Individually and on Behalf of All Known Heirs v. Collin Creek Assisted Living Center, Inc. D/B/A Dayspring Assisted Living Community

• Court: Court of Appeals of Texas
• Decided: April 8, 2016
• Docket: 05-16-00120-CV
• Status: Published

Opinion

DISMISS; and Opinion Filed April 8, 2016.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00120-CV

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

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

THE ESTATE OF CARMELINA On Appeal from the 219th Judicial District “MILLIE” SMITH, BY AND THROUGH Court, Collin County, Texas. ITS REPRESENTATIVE, CHRISTINE Trial Court Cause No. 219-02547-2015. FABER, INDIVIDUALLY AND ON Opinion delivered by Chief Justice Wright. BEHALF OF ALL KNOWN HEIRS, Justices Lang-Miers and Stoddart Appellant participating.

No. 05-16-00120-CV V.

COLLIN CREEK ASSISTED LIVING CENTER, INC. D/B/A DAYSPRING ASSISTED LIVING COMMUNITY, Appellee

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.

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