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 Appeal from 219th Judicial District Court of Collin County (memorandum opinion by chief justice wright)

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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 “MILLIE” SMITH, BY AND THROUGH ITS REPRESENTATIVE, CHRISTINE FABER, INDIVIDUALLY AND ON BEHALF OF ALL KNOWN HEIRS, Appellant No. 05-16-00120-CV On Appeal from the 219th Judicial District Court, Collin County, Texas. Trial Court Cause No. 219-02547-2015. Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating. 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. –3–

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