Erin Jepson, N.P. v. Salina S. Wyrick ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00384-CV
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ERIN JEPSON, N.P., Appellant
V.
SALINA S. WYRICK, Appellee
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-292369-17
Before Wallach, J.; Sudderth, C.J.; and Gabriel, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
In a prior appeal, this court reversed the trial court’s order denying Appellant
Erin Jepson’s motion to dismiss Appellee Salina S. Wyrick’s health care liability claim
against her and remanded the case for the trial court to consider granting Wyrick a
thirty-day extension to attempt to cure deficiencies in the expert report. Jepson v.
Wyrick, No. 02-18-00148-CV, 2019 WL 2042303, at *11 (Tex. App.—Fort Worth May
9, 2019, no pet.) (mem. op.). In that opinion, we held that the deficiencies in the
report did not make it “a non-report, and we [could ]not say that it [was] impossible
for the deficiencies in the report to be cured.” Id. (citing Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461–62 (Tex. 2017) (“[A] court must grant an
extension if a report’s deficiencies are curable.”)). After our remand, the trial court
signed an order granting Wyrick’s motion for a thirty-day extension to cure the
deficiencies in the expert report regarding her claims against Jepson. That order does
not rule on Jepson’s motion to dismiss. Jepson now attempts to appeal the trial
court’s order granting Wyrick the thirty-day extension. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c). We dismiss this interlocutory appeal for want of jurisdiction.
After this court sent a letter to Jepson indicating our concern that we lack
jurisdiction over this appeal because the order appears to be an unappealable
interlocutory order, see id. § 51.014(a)(9) (stating “that an appeal may not be taken
from an order granting an extension under Section 74.351”), Wyrick nonsuited her
claims against Jepson. We then sent a second letter repeating our concern that we
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lack jurisdiction because the order appears to be an unappealable interlocutory order
and adding that based on the nonsuit, the appeal also appears to be moot. Jepson did
not respond to either letter.
We have appellate jurisdiction of appeals from final judgments and from
interlocutory orders that the Texas Legislature has specified are appealable. Lehmann
v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see, e.g., Tex. Civ. Prac. & Rem.
Code Ann. § 51.014. In health care liability cases, the Texas Legislature has specified
that a defendant cannot appeal a trial court’s interlocutory ruling granting a plaintiff a
thirty-day extension authorized by Section 74.351(c) to cure deficiencies in an expert
report. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(c); Scoresby v.
Santillan, 346 S.W.3d 546, 549, 555, 557 (Tex. 2011); Wyrick v. Jayson, No. 02-18-
00104-CV, 2018 WL 3385870, at *4 (Tex. App.—Fort Worth July 12 , 2018, no pet.)
(mem. op.); cf. In re Watkins, 279 S.W.3d 633, 634 (Tex. 2009) (orig. proceeding)
(holding mandamus unavailable to review granting of Section 74.351(c) extension
because “it would subvert the Legislature’s limit on such review”).
We therefore do not have jurisdiction over this appeal. See Ogletree v. Matthews,
262 S.W.3d 316, 321 (Tex. 2007); Wyrick, 2018 WL 3385870, at *4. We need not
reach the issue of mootness. See Tex. R. App. P. 47.1. Because we lack jurisdiction
over this appeal, we dismiss it. See Tex. R. App. P. 42.3(a), 43.2(f).
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Per Curiam
Delivered: January 30, 2020
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