JULIO HERNANDEZ AND ROCIO MARTINEZ v. ENES KANLIC EL PASO COUNTY HOSPITAL DISTRICT UNIVERSITY MEDICAL CENTER AND TEXAS TECH HEALTH SCIENCES CENTER

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Court of Appeals of Texas, El Paso.

JULIO A. HERNANDEZ AND ROCIO MARTINEZ, Appellants, v. ENES M. KANLIC, M.D.; EL PASO COUNTY HOSPITAL DISTRICT D/B/A UNIVERSITY MEDICAL CENTER; AND TEXAS TECH HEALTH SCIENCES CENTER, Appellees.

No. 08-18-00011-CV

Decided: May 11, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.

MEMORANDUM OPINION ON MOTION TO DISMISS

El Paso County Hospital District d/b/a University Medical Center (UMC) has filed a motion to dismiss the appeal as it pertains to UMC for lack of jurisdiction. Appellants have not filed any response to the motion. The motion to dismiss is denied.

Appellants filed suit against Enes M. Kanlic, M.D. and UMC. On March 30, 2017, the trial court granted UMC's motion to dismiss Appellants' suit against it pursuant to Section 74.351(b) of the Texas Civil Practice and Remedies Code. The order is interlocutory because it did not dispose of Appellants claims against Kanlic. On April 12, 2017, the trial court granted Kanlic's motion filed pursuant to Section 101.106(f) of the Civil Practice and Remedies Code, and ordered Appellants to amend their petition to drop Kanlic as a defendant and substitute as a defendant Texas Tech University Health Sciences Center (TTUHSC). In compliance with the trial court's order, Appellants filed their amended petition on May 12, 2017. TTUHSC was the sole remaining defendant in the case. TTUHSC subsequently filed a plea to the jurisdiction which the trial court granted on November 6, 2017. On November 6, 2017, Appellants filed a motion for new trial addressing the order granting Kanlic's motion to dismiss filed pursuant to Section 101.106(f). Appellants filed notice of appeal from the trial court's orders dated March 30, 2017, April 12, 2017, and November 6, 2017.

UMC argues that we lack jurisdiction of the appeal because Appellants failed to pursue an interlocutory appeal from the March 30, 2017 order, and their notice of appeal filed on January 24, 2018 is untimely. As a general rule, an appeal may be taken only from a final judgment. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of all pending parties and claims, the orders remain interlocutory and unappealable until final judgment is entered unless a statute specifically allows an interlocutory appeal. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)(orig. proceeding).

The March 30, 2017 order granting UMC's motion to dismiss filed pursuant to Section 74.351(b) of the Civil Practice and Remedies Code was interlocutory because Appellants' claims against another defendant, Kanlic and later TTUHSC, remained pending. An interlocutory appeal is permitted from an order denying a motion to dismiss under Section 74.351(b) and from an order granting relief sought by a motion under Section 74.351(l). TEX.CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9), (10)(West Supp. 2017). Section 51.014(a)(9) does not, however, authorize an interlocutory appeal from an order granting a motion to dismiss under Section 74.351(b). Therefore, Appellants could not appeal the March 30, 2017 order until the trial court signed the November 6, 2017 order disposing of Appellants' claims against TTUHSC. See Du Bois v. Irfan, No. 14-15-01032-CV, 2016 WL 1533746 (Tex.App.--Houston [14th Dist.] April 14, 2016, no pet.). Because Appellants filed a motion for new trial, their deadline for filing notice of appeal was February 4, 2018, which is ninety days from November 6, 2017. See TEX.R.APP.P. 26.1(a)(1). Appellants timely filed their notice of appeal on January 24, 2018.

Even if Section 74.351(b) authorized an interlocutory appeal from an order granting relief under Section 74.351(b), Appellants' failure to pursue an interlocutory appeal would not operate to waive their right to appeal the order when the trial court entered the final judgment. See Hernandez, 289 S.W.3d at 318 (health care provider's failure, in a health care liability claim, to pursue interlocutory appeal from order denying his challenge to adequacy of expert report did not preclude him from challenging the order by appeal after patient nonsuited and final judgment was entered). As the Supreme Court observed in Hernandez, an interlocutory appeal is authorized by Section 51.014(a)(9) and (10), but it is not mandatory and the Legislature did not provide any consequences for a party's failure to pursue an interlocutory appeal. Hernandez, 289 S.W.3d at 319. For these reasons, UMC's motion to dismiss is denied.

YVONNE T. RODRIGUEZ, Justice

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