AZUL JAFFER v. ROBBIN SLAUGHTER (2017)

MEMORANDUM OPINION

This is an attempted appeal from an order denying appellant's motion to dismiss appellee's claim as a health-care-liability claim under Chapter 74 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. The order was signed June 1, 2016. Appellant's notice of appeal was filed December 16, 2016.

Section 51.014 of the Civil Practice and Remedies Code expressly authorizes an appeal from certain interlocutory orders of the trial court, including orders denying a motion to dismiss under section 74.351. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9). Rule 26.1(b) of the Texas Rules of Appellate Procedure provides that an interlocutory appeal “must be filed within 20 days after the judgment or order is signed.” Tex. R. App. P. 26.1(b); see Tex. R. App. P. 28.1 (stating appeals from interlocutory orders, when allowed by statute, are accelerated and are perfected by filing a notice of appeal “within the time allowed by Rule 26.1(b),” and filing a motion for new trial, post-trial motion, or request for findings of fact “will not extend the time to perfect an accelerated appeal”).

Appellant's notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the 15-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (1997) (construing the predecessor to Rule 26). Appellant's notice of appeal was not filed within the 15-day period provided by Rule 26.3.

On January 4, 2017, notification was transmitted to all parties of the court's intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). On January 6, 2017, appellant filed a response to the court's notice in which he alleged he could appeal the trial court's order “at any time.” Appellant argued in his response that this case falls under the purview of Chapter 74 as a health-care-liability claim because appellee's claims arose after a plastic surgery procedure performed by appellant. Appellant, however, did not appeal the trial court's order denying his motion to dismiss within 20 days of the date of the order. According to appellant's response, appellee did not file an expert report pursuant to section 74.351 of the Civil Practice and Remedies Code, and is attempting to circumvent the requirements of Chapter 74 by re-pleading her causes of action as breach of contract, fraud, and deceptive acts.

Appellant's argument relies on Hernandez v. Ebrom, a case in which the Texas Supreme Court determined that a defendant's failure to challenge the adequacy of an expert report by interlocutory appeal under section 51.014(a)(9) of the Civil Practice and Remedies Code did not bar the defendant from challenging the report by appeal from a final judgment. 289 S.W.3d 316, 318–19 (Tex. 2009). Hernandez was a health-care-liability suit against Dr. Hernandez. Id. at 317. Dr. Hernandez filed a motion to dismiss and for an award of fees and costs based on the expert-report provisions of Chapter 74 of the Civil Practice and Remedies Code. Id. The trial court denied the motion, and Dr. Hernandez did not pursue an interlocutory appeal of that ruling even though one was available. Id. at 317–18. The plaintiff eventually nonsuited the case, and after final judgment Dr. Hernandez appealed the denial of his motion to dismiss. Id. at 317. The court of appeals dismissed his appeal for want of jurisdiction, but the supreme court reversed, holding that Dr. Hernandez's failure to take the available interlocutory appeal did not preclude him from appealing after final judgment. Id. at 317–18.

Appellant attempts to analogize the facts of this case to those in Hernandez by claiming that appellee's re-pleading of her causes of action is analogous to the plaintiff's nonsuit in Hernandez. The distinguishing factor between Hernandez and the facts of this case is that Dr. Hernandez timely appealed from a final judgment. The record before this court contains no final judgment. Appellant is correct in that he has not forfeited his right to complain of the trial court's motion to dismiss upon final judgment. However, the supreme court in Hernandez, did not hold that an appeal from an order denying a motion to dismiss could be brought “at any time”; the court held that a defendant does not waive the right to appeal such an order by failing to file a timely interlocutory appeal. Id. at 318–19. Appellant's response does not demonstrate jurisdiction over this appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM