Stanley Davis, Individually and on Behalf of the Estate of Eunice D.C. Davis v. ESC II, LP D/B/A Emeritus at Vickery Towers, Laila Hirjee, M.D., and Laila Hirjee M.D. P.A. ( 2015 )

Dismissed and Opinion Filed July 30, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00551-CV
STANLEY DAVIS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF EUNICE
D.C. DAVIS, DECEASED, Appellant
V.
ESC II, LP D/B/A EMERITUS AT VICKERY TOWERS, LAILA HIRJEE, M.D., AND
LAILA HIRJEE M.D. P.A., Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-03856
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
Appellant appeals two orders of the trial court dated February 18, 2015 that dismissed his
medical liability claims against appellees ESC II, LP d/b/a Emeritus at Vickery Towers, Laila
Hirjee, M.D., and Laila Hirjee M.D. P.A. for failure to comply with chapter 74 of the Texas Civil
Practice and Remedies Code. After the trial court signed the orders appealed, appellant moved
for new trial and then filed his notice of appeal on April 28, 2015.
By letter dated July 2, 2015, the Court questioned its jurisdiction over the appeal noting
that the orders appealed did not appear to be final orders. We requested that appellant file a
jurisdictional brief explaining how the Court has jurisdiction over the appeal. To date we have
received no response. Accordingly, we address our jurisdiction sua sponte as we must. M.O.
Dental Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).
Unless an interlocutory appeal is specifically authorized by statute, this Court may
entertain appeals only from final judgments. Lehmann v. Har–Con Corp., 39 S.W.3d 191 (Tex.
2001). A judgment issued without a conventional trial is final for purposes of appeal if, and only
if, it either actually disposes of all claims and parties then before the court, regardless of its
language, or it states with unmistakable clarity that it is a final judgment as to all claims and all
parties.” Id. at 192–93. An order or judgment is not final simply because it states that it is final.
Id.at 200. In addition, the inclusion of a Mother Hubbard clause—that is the statement, “all
relief not granted is denied,” or essentially those words—also does not indicate that a judgment
rendered without a conventional trial is final for purposes of appeal. Id. at 203–04.
Each of the trial court’s orders dismissing the claims against the defendants states that is
final and includes a Mother Hubbard clause but also expressly reserves for the future the award
of attorney’s fees. When a party asserts a claim for attorney’s fees and the trial court’s order or
judgment does not suggest the trial court intended to deny the claim for attorney’s fees and also
does not actually dispose of attorney’s fees, the order or judgment is not final. See McNally v.
Guevara, 52 S.W.3d 195, 196 (Tex. 2001). Here the express reservation of the claim for
attorney’s fees for future determination precludes a finding that the orders are final for purposes
of appeal.
The civil practice and remedies code provides for interlocutory appeals of certain orders
regarding expert reports in health care liability claims. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 51.014(a)(9)–(10) (West 2015) (authorizing certain interlocutory appeals from section 74.351
orders); 74.351 (West Supp. 2014) (requirements of expert reports in health care liability claims).
Specifically, section 51.014(a)(9) allows interlocutory appeal of an order that “denies all or part
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of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken
from an order granting an extension under Section 74.351.” Id. § 51.014(a)(9). Section
51.014(a)(10) allows interlocutory appeal of an order that “grants relief sought by a motion
under Section 74.351(l ).” Id. § 51.014(a)(10).
Appeals from interlocutory orders are accelerated appeals. TEX. R. APP. P. 28.1. In an
accelerated appeal, notice of appeal must be filed within 20 days after the judgment or order is
signed. TEX. R. APP. P. 26.1(b). Absent the filing of a rule 26.3 motion, the deadline for filing a
notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions. In
re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Filing a rule 26.1(a) motion for new trial, motion
to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of
law will not extend that deadline. Id.
The orders appealed in this case were signed on February 18, 2015. Absent a rule 26.3
motion, which was not filed in this case, the deadline for filing a notice of interlocutory appeal
was March 10, 2015, twenty days after the judgment was signed. Appellant filed his notice of
appeal on April 28, 2015, sixty-nine days after the judgment was signed. Without a timely filed
notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).
Because the orders in this case are not final and because appellant has not perfected a
timely interlocutory appeal, we lack jurisdiction over the appeal. We dismiss the appeal.
150551F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STANLEY DAVIS, INDIVIDUALLY AND On Appeal from the 298th Judicial District
ON BEHALF OF THE ESTATE OF Court, Dallas County, Texas
EUNICE D.C. DAVIS, DECEASED, Trial Court Cause No. DC-14-03856.
Appellant Opinion delivered by Chief Justice Wright.
Justices Lang-Miers and Stoddart
No. 05-15-00551-CV V. participating.
ESC II, LP D/B/A EMERITUS AT
VICKERY TOWERS, LAILA HIRJEE,
M.D., AND LAILA HIRJEE M.D. P.A.,
Appellees
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered July 30, 2015.
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