malcolm-barber-and-leann-barber-v-william-f-dean-md-mikko-peter ( 2007 )

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-07-353-CV  

MALCOLM BARBER, LEANN BARBER,                                   APPELLANTS

  

AND LEO C. MERCER, JR., M.D.

                                                   V.

MALCOLM BARBER, LEANN BARBER,                                      APPELLEES

WILLIAM F. DEAN, M.D.,

MIKKO PETER TAURIAINEN, M.D., AND

CARDIOVASCULAR AND THORACIC

SURGICAL GROUP OF WICHITA FALLS, P.A.

                                              ------------

             FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                              ------------

                                MEMORANDUM OPINION^[1]

                                              ------------

Leo C. Mercer, Jr., M.D. is attempting to appeal the trial court=s order overruling certain of Mercer=s objections to the expert report filed by appellees Malcolm and Leann Barber.  We dismiss the appeal for want of jurisdiction.

Mercer moved to dismiss the Barbers= suit on the ground that their timely filed expert report was inadequate.  Mercer also filed objections to the expert report.  The trial court entered an order overruling Mercer=s objections to the expert=s qualifications, sustaining Mercer=s objections to certain elements of the expert report, and granting the Barbers a thirty-day extension to cure the deficiencies in the report.  The trial court did not rule on Mercer=s motion to dismiss.

We notified Mercer by letter of our concern that we lack jurisdiction over the appeal because an order granting an extension of time to cure an expert report is not appealable by interlocutory appeal.^[2]  In response to our jurisdiction letter, Mercer states that he is not appealing the trial court=s order granting the Barbers an extension of time to cure the deficient elements of their expert report. Instead, Mercer states that he Aappeals only the denial of his objections and motion to dismiss based on [the expert=s] lack of qualifications to opine against Dr. Mercer.@

The trial court has not denied Mercer=s motion to dismiss, however.  Further, this court has held that an order denying a motion to dismiss based on the alleged inadequacy of an expert report is not appealable by interlocutory appeal.^[3]  Mercer argues that we have jurisdiction to consider his Alimited interlocutory appeal challenging the denial of his objections@ to the Barbers= expert=s qualifications; however, this matter is not listed in section 51.014.^[4]  Accordingly, we dismiss Mercer=s appeal for want of jurisdiction.^[5]

PER CURIAM

PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED: December 20, 2007                                 

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^[1]See Tex. R. App. P. 47.4.

^[2]See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(9) (Vernon Supp. 2007).

^[3]See Jain v. Stafford, 214 S.W.3d 94, 97 (Tex. App.CFort Worth 2006, pet. dism=d).

^[4]See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2007).

^[5]Hereinafter, the style of this case shall be AMalcolm Barber and Leann Barber v. William F. Dean, M.D., Mikko Peter Tauriainen, M.D., and Cardiovascular and Thoracic Surgical Group of Wichita Falls, P.A.@