Donald Britton v. Khalid A. Azzouz and Riad Almasri ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00206-CV
___________________________
DONALD BRITTON, Appellant
V.
KHALID A. AZZOUZ AND RIAD ALMASRI, Appellees
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-344232-23
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Pro se Appellant Donald Britton sued dentists Khalid A. Azzouz and Riad
Almasri, along with Fort Worth Dental Institute, PLLC and Fast New Smiles of Fort
Worth. Azzouz and Almasri moved for the trial court to dismiss Britton’s claims
against them and to award them their reasonable attorney’s fees because Britton had
failed to serve them with a statutorily required expert report. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b) (requiring trial court to dismiss healthcare-liability claim
and to award physician or healthcare provider reasonable attorney’s fees and court
costs when claimant completely fails to file expert report). The trial court signed an
order granting the motion and dismissing Britton’s claims against Azzouz and Almasri
with prejudice but did not award them attorney’s fees. Britton attempts to appeal
from that order.
After reviewing the clerk’s record, we wrote to Britton to express our concern
that we lacked jurisdiction over this appeal because it appeared that the trial court’s
order granting the dismissal motion was neither a final judgment nor an appealable
interlocutory order. We warned Britton that unless he or any other party filed a
response showing grounds for continuing the appeal, we could dismiss the appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. Britton responded, stating that
the order “is very obviously the Final Judgment in this case” because “[a] judgment is
final for purposes of appeal where it either . . . [a]ctually disposes of all parties and
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claims at issue in the lawsuit, or . . . [e]xpressly states that it disposes of all claims and
parties in the lawsuit even if it does not actually do so.”
Our appellate jurisdiction is limited to appeals from final judgments and from
interlocutory orders made appealable by statute. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001) (stating that “the general rule, with a few mostly
statutory exceptions, is that an appeal may be taken only from a final judgment”); see
also Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (listing appealable interlocutory
orders). When, as here, there was no conventional trial on the merits, we cannot
presume that an order or judgment is final. See Lehmann, 39 S.W.3d at 199–200. In
such cases, an order or judgment is final and appealable if it actually disposes of all
claims and all parties or if it “clearly and unequivocally” states that it does. Id. at 205;
see In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding). A phrase
such as “[t]his judgment finally disposes of all parties and all claims and is appealable”
clearly and unequivocally finally disposes of a case. Lehmann, 39 S.W.3d at 206.
Because the order here lacks such language, see id., we must examine the record to
determine whether the order is final, see Elizondo, 544 S.W.3d at 827–28.
After reviewing the record, we have determined that it appears that Britton’s
claims against Fort Worth Dental Institute, PLLC and Fast New Smiles of Fort Worth
remain pending, as does Azzouz and Almasri’s request for attorney’s fees, see Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(b)(1) (requiring an award of reasonable attorney’s
fees when expert report was not filed). The order is thus not final. See Lehmann,
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39 S.W.3d at 205–06; see also Hartwig v. Neurological Fitness & Recovery Facilities II, LLC,
No. 03-24-00300-CV, 2024 WL 3056629, at *1 (Tex. App.—Austin June 19, 2024, no
pet. h.) (mem. op.) (dismissing for want of jurisdiction appeal from order granting
Section 74.351(b) dismissal motion after appellant confirmed that no final judgment
had been entered and that defendants’ motion for attorney’s fees remained pending in
the trial court); Harper v. Tex. Tech Health Sci. Ctr., No. 04-15-00489-CV,
2015 WL 5602298, at *1 (Tex. App.—San Antonio Sept. 23, 2015, no pet.) (per
curiam) (mem. op.) (“[T]his appeal is prematurely filed, and the trial court’s order
[granting a Section 74.351(b) dismissal motion] will be appealable only after a final
judgment is entered unless the trial court severs its order granting the appellee’s
motion to dismiss prior to the entry of a final judgment.”); Fisher v. Med. Ctr. of Plano,
No. 05-14-01441-CV, 2015 WL 73441, at *1–2 (Tex. App.—Dallas Jan. 6, 2015, no
pet.) (mem. op.) (explaining that appeal from order granting Section 74.351(b)
dismissal motion was interlocutory because plaintiff’s claim was still pending in trial
court against originally unserved defendant). Nor is the order here an appealable
interlocutory order. See Cofer v. Arlington Mem’l Hosp., No. 02-18-00111-CV,
2018 WL 2976443, at *1 (Tex. App.—Fort Worth June 14, 2018, no pet.) (mem. op.);
Harper, 2015 WL 5602298, at *1; Fisher, 2015 WL 73441, at *2. Compare Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(9) (authorizing interlocutory appeal from order
denying motion to dismiss under Section 74.351(b)), with id. § 51.014(a)(10)
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(authorizing interlocutory appeal from order granting motion to dismiss pursuant to
Section 74.351(l) for failure to file adequate expert report).
Without a final judgment or appealable interlocutory order, we lack jurisdiction
over an appeal, and we must dismiss it. See Lehmann, 39 S.W.3d at 195; see, e.g., Ratley v.
Ratley, No. 02-21-00166-CV, 2021 WL 4319707, at *1 (Tex. App.—Fort Worth Sept.
23, 2021, no pet.) (mem. op.). Accordingly, we dismiss this appeal for want of
jurisdiction.1 See Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: July 11, 2024
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Our dismissing this appeal does not bar Britton from pursuing an appeal from
a final judgment in this case.
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