Theresia Riggs v. Joseph Michael Perlman, M.D.

Opinion

Opinion issued June 12, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00974-CV ——————————— THERESIA RIGGS, Appellant V. JOSEPH MICHAEL PERLMAN, M.D., Appellee

On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2013-25072

MEMORANDUM OPINION

Appellant Theresia Riggs sued Joseph Michael Perlman, M.D. and United

Surgical Partners International d/b/a Tops Surgical Specialty Hospital for medical

malpractice. In this appeal, Riggs challenges the trial court’s dismissal of her cause of action against Perlman due to her failure to serve an expert report in compliance

with statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp.

2013). In particular, she appeals from the trial court’s October 14, 2003 “Order of

Dismissal with Prejudice,” which dismissed only her causes of action against

Perlman, did not dispose of all parties and claims, and did not purport to be a final

judgment. No order of severance appears in the record. Accordingly, this is an

interlocutory order. 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.”).

Generally, appeals may be taken only from final judgments. Id. Interlocutory

orders may be appealed only if authorized by statute. Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 352, 352 (Tex. 2001). The Texas Civil Practice & Remedies

Code authorizes an interlocutory appeal from an order that denies a physician’s

motion to dismiss based on a medical-malpractice plaintiff’s failure to serve an

expert report within the statutory time frame. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(9) (West Supp. 2013); see also id. § 74.351. It also authorizes an

interlocutory appeal from an order that grants a motion challenging the adequacy

of an expert report. See id. § 51.014(a)(10); see also id. § 74.351(l). The order that

Riggs challenges on appeal is one granting a physician-defendant’s motion to

2 dismiss based on her failure to serve an expert report. As such, this interlocutory

appeal is not authorized by statute. See id. § 51.014.

We raised this jurisdictional issue and ordered Riggs to provide the court

with a basis for us to exercise jurisdiction over this appeal. In response, Riggs

argued that her appeal was like an interlocutory appeal from the grant or denial of a

special appearance under section 51.014(a)(7). See id. She argued that service of an

expert report in a health care liability claim must comply with Texas Rule of Civil

Procedure 21a and that her appeal is from the trial court’s “finding that jurisdiction

over the claim did not exist because there was no personal jurisdiction over the

defendant Dr. Perlman for allegedly failing to ‘serve’ the report on him.” Resp. to

Jurisdictional Question Raised by the Ct. 3. But Perlman did not file a special

appearance: he challenged compliance with the mandatory, statutory duty to serve

him with an expert report. Moreover, the mandatory, statutory duty to serve a

defendant with an expert report in compliance with the statute is not jurisdictional.

See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., No. 12-0251, 2014 WL

1258307, at *6, 8 (Tex. Mar. 28, 2014) (discussing Jernigan v. Langley, 111

S.W.3d 153, 156–58 (Tex. 2003), and holding that it “clearly implies that the

expert report requirement is not jurisdictional”). Therefore, we hold that this is not

an appeal from an interlocutory order granting or denying a special appearance.

3 Rather, we conclude that the appealed order is an interlocutory order from

which no statutory right to interlocutory appeal lies, and we hold that we lack

jurisdiction over this appeal.

Conclusion

We dismiss this appeal for want of jurisdiction.

Michael Massengale Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.