Walter Zawislak, M.D. v. the Texas A&M University Health Science Center

• Court: Court of Appeals of Texas
• Decided: April 18, 2018
• Docket: 10-18-00003-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00003-CV

WALTER ZAWISLAK, M.D., Appellant v.

THE TEXAS A&M UNIVERSITY HEALTH SCIENCE CENTER, Appellee

From the 85th District Court Brazos County, Texas Trial Court No. 16-001998-CV-85

MEMORANDUM OPINION

On January 4, 2018, Appellant Walter Zawislak, M.D., filed his notice of appeal in

this cause. The notice of appeal states that Zawislak desires to appeal from the Order

Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for Production of

Documents from the National Board of Medical Examiners, which was signed by the trial

court on December 4, 2017. On January 19, 2018, this cause was transferred to the Thirteenth Court of Appeals in Corpus Christi pursuant to a transfer order from the

Supreme Court.

Zawislak then filed another notice of appeal on January 31, 2018. The notice of

appeal was received and docketed by this Court as Cause No. 10-18-00038-CV. The notice

of appeal states that Zawislak desires to appeal from the Order Granting Defendant Texas

A&M University System Health Science Center’s Plea to the Jurisdiction, which was

signed by the trial court on January 12, 2018 in the same underlying case in which the

Order Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for

Production of Documents from the National Board of Medical Examiners was signed on

December 4, 2017. On February 6, 2018, this cause was therefore transferred back to this

Court from the Thirteenth Court of Appeals pursuant to an order from the Supreme

Court.

While this cause was pending before the Thirteenth Court of Appeals, the

Thirteenth Court of Appeals sent a letter to Zawislak, stating that it appeared that there

was no final, appealable order in the underlying case. The letter notified Zawislak that

this cause would be dismissed if he did not cure the defect within ten days of the date of

the letter. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West 2015) (“In a civil case in

which the judgment or amount in controversy exceeds $250, exclusive of interest and

costs, a person may take an appeal or writ of error to the court of appeals from a final

judgment of the district or county court.” (emphasis added)).

Zawislak v. Tex. A&M Univ. Health Sci. Ctr. Page 2 There was no final, appealable order in the underlying case when Zawislak filed

his notice of appeal in this cause, but the trial court signed a final, appealable order in the

underlying case when it signed the Order Granting Defendant Texas A&M University

System Health Science Center’s Plea to the Jurisdiction on January 12, 2018, from which

Zawislak appeals in Cause No. 10-18-00038-CV. 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 . . . .”). And an interlocutory order becomes

appealable with the signing of a judgment or order disposing of the last pending parties

or claims. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).

Therefore, the Order Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party

Subpoena for Production of Documents from the National Board of Medical Examiners,

from which Zawislak appeals in this cause, is now appealable.

On February 15, 2018, however, the Clerk of this Court notified Zawislak that we

have not received the docketing statement in this cause and that this appeal would be

dismissed if the docketing statement was not filed within twenty-one days of the date of

the letter. Zawislak filed his docketing statement in Cause No. 10-18-00038-CV on

February 22, 2018, but no response has been received from Zawislak in this cause.

Accordingly, this appeal is dismissed. See TEX. R. APP. P. 42.3(b), (c). We note, however,

that this opinion does not limit Zawislak’s right, if any, to address the Order Denying

Zawislak v. Tex. A&M Univ. Health Sci. Ctr. Page 3 Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for Production of

Documents from the National Board of Medical Examiners in Cause No. 10-18-00038-CV.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring with a note)* Appeal dismissed Opinion delivered and filed April 18, 2018 [CV06]

* “(Chief Justice Gray concurs in the Court’s judgment to the extent it dismisses the appeal. His basis for such dismissal is, however, solely on the lack of jurisdiction and not for want of prosecution or failure to comply with a rule, order, or notice. A separate opinion will not issue.)”

Zawislak v. Tex. A&M Univ. Health Sci. Ctr. Page 4