Dayspring Assisted Living Community v. The Estate of Carmelina "Millie" Smith, by and through its Representative, Christine Faber, et al Appeal from 366th Judicial District Court of Collin County (memorandum opinion)
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DISMISS and Opinion Filed April 25, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00112-CV DAYSPRING ASSISTED LIVING COMMUNITY, Appellant V. CHRISTINE FABER, INDIVIDUALLY AND AS HEIR AT LAW OF CARMELINA “MILLIE” SMITH, DECEASED, Appellees On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-02547-2015 MEMORANDUM OPINION Before Chief Justice Wright, Justice Evans, and Justice Brown Opinion by Chief Justice Wright Appellant appeals the trial court’s January 19, 2018 order vacating a prior interlocutory order dismissing appellant pursuant to its motion to dismiss for failure to file an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West Supp. 2017). By letter dated March 8, 2018, the Court questioned its jurisdiction over this appeal because there does not appear to be an appealable order. At our request, the parties filed letter briefs addressing our jurisdiction. Generally, this Court has jurisdiction only over appeals from final judgments and certain interlocutory orders as permitted by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A party may appeal from an interlocutory order that denies all or part of the relief sought by a motion under section 74.351(b). TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2017). In its letter brief, appellant asserts that the trial court’s January 19th order, “operates as a denial of relief sought by [appellant] per TEX. CIV. PRAC. & REM. CODE § 74.351(b), conferring interlocutory jurisdiction as per TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).” We disagree with appellant’s characterization of the order as a denial of its chapter 74 motion to dismiss. The trial court stated in its order that a question remains as to “whether Plaintiff’s claim was properly categorized as a healthcare liability claim.” Accordingly, we conclude the trial court’s January 19th order is not an appealable interlocutory order denying a chapter 74 motion to dismiss. We dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE 180112F.P05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DAYSPRING ASSISTED LIVING COMMUNITY, Appellant No. 05-18-00112-CV On Appeal from the 366th Judicial District Court, Collin County, Texas Trial Court Cause No. 366-02547-2015. Opinion delivered by Chief Justice Wright, Justices Evans and Brown participating. V. CHRISTINE FABER, INDIVIDUALLY AND AS HEIR AT LAW OF CARMELINA “MILLIE” SMITH, DECEASED, Appellees In accordance with this Court’s opinion of this date, we DISMISS this appeal. It is ORDERED that appellees CHRISTINE FABER, INDIVIDUALLY AND AS HEIR AT LAW OF CARMELINA “MILLIE” SMITH, DECEASED recover their costs, if any, of this appeal from appellant DAYSPRING ASSISTED LIVING COMMUNITY. Judgment entered April 25, 2018. –3–
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