Patricia Osborne, Individually and Charles Osborne, Individually v. William Rowe, M.D. ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00277-CV
PATRICIA OSBORNE, APPELLANTS
INDIVIDUALLY AND CHARLES
OSBORNE, INDIVIDUALLY
V.
WILLIAM ROWE, M.D. APPELLEE
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-06405-393
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MEMORANDUM OPINION 1
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On August 28, 2015, appellants Patricia Osborne, individually, and Charles
Osborne, individually, filed a notice of appeal from the trial court’s July 31, 2015
interlocutory order dismissing the Osbornes’ claims against appellee William
Rowe, M.D. for failure to serve an expert report within the statutory period for
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See Tex. R. App. P. 47.4.
health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)
(West Supp. 2014).
As is relevant to this appeal, section 51.014 of the civil practices and
remedies code allows for an interlocutory appeal from an order that denies relief
sought by a motion under section 74.351(b) (when an expert report has not been
served) or that grants relief sought by a motion under section 74.351(l) (when an
inadequate expert report has been served). See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(9), (10) (West 2015). In this case, the trial court granted relief
sought by Rowe’s motion under section 74.351(b).
On September 16, 2015, we notified the Osbornes of our concern that we
lacked jurisdiction over this appeal because the order being appealed does not
appear to be a final judgment or an appealable interlocutory order. We instructed
the Osbornes or any other party desiring to continue the appeal to file a response
showing grounds for continuing the appeal or we may dismiss the appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. The Osbornes
responded and requested until October 14, 2015, to obtain from the trial court a
final judgment or an appealable interlocutory order. To date, no such judgment
or order has been filed in this court.
If a trial court has not entered a final and appealable order, we have
jurisdiction to hear an interlocutory appeal only if authorized by statute. Stary v.
DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). We must strictly construe section
51.014 as a narrow exception to the general rule that only final judgments or
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orders are appealable. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352,
355 (Tex. 2001); Thoyakulathu v. Brennan, 192 S.W.3d 849, 851 n.2 (Tex.
App.—Texarkana 2006, no pet.). Because the order being appealed is not an
order denying relief sought by a motion under section 74.351(b) or an order
granting relief sought by a motion under section 74.351(l), we lack jurisdiction
over this appeal. Accordingly, we dismiss this appeal for want of jurisdiction.
See Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DELIVERED: October 29, 2015
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