Walter Zawislak, M.D. v. the Texas A&M University Health Science Center

IN THE
TENTH COURT OF APPEALS
No. 10-18-00003-CV
WALTER ZAWISLAK, M.D.,
Appellant
v.
THE TEXAS A&M UNIVERSITY HEALTH
SCIENCE CENTER,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 16-001998-CV-85
MEMORANDUM OPINION
On January 4, 2018, Appellant Walter Zawislak, M.D., filed his notice of appeal in
this cause. The notice of appeal states that Zawislak desires to appeal from the Order
Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for Production of
Documents from the National Board of Medical Examiners, which was signed by the trial
court on December 4, 2017. On January 19, 2018, this cause was transferred to the
Thirteenth Court of Appeals in Corpus Christi pursuant to a transfer order from the
Supreme Court.
Zawislak then filed another notice of appeal on January 31, 2018. The notice of
appeal was received and docketed by this Court as Cause No. 10-18-00038-CV. The notice
of appeal states that Zawislak desires to appeal from the Order Granting Defendant Texas
A&M University System Health Science Center’s Plea to the Jurisdiction, which was
signed by the trial court on January 12, 2018 in the same underlying case in which the
Order Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for
Production of Documents from the National Board of Medical Examiners was signed on
December 4, 2017. On February 6, 2018, this cause was therefore transferred back to this
Court from the Thirteenth Court of Appeals pursuant to an order from the Supreme
Court.
While this cause was pending before the Thirteenth Court of Appeals, the
Thirteenth Court of Appeals sent a letter to Zawislak, stating that it appeared that there
was no final, appealable order in the underlying case. The letter notified Zawislak that
this cause would be dismissed if he did not cure the defect within ten days of the date of
the letter. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West 2015) (“In a civil case in
which the judgment or amount in controversy exceeds $250, exclusive of interest and
costs, a person may take an appeal or writ of error to the court of appeals from a final
judgment of the district or county court.” (emphasis added)).
Zawislak v. Tex. A&M Univ. Health Sci. Ctr. Page 2
There was no final, appealable order in the underlying case when Zawislak filed
his notice of appeal in this cause, but the trial court signed a final, appealable order in the
underlying case when it signed the Order Granting Defendant Texas A&M University
System Health Science Center’s Plea to the Jurisdiction on January 12, 2018, from which
Zawislak appeals in Cause No. 10-18-00038-CV. See Lehmann v. Har–Con Corp., 39 S.W.3d
191, 195 (Tex. 2001) (“A judgment is final for purposes of appeal if it disposes of all
pending parties and claims in the record . . . .”). And an interlocutory order becomes
appealable with the signing of a judgment or order disposing of the last pending parties
or claims. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).
Therefore, the Order Denying Plaintiff’s Motion to Enforce Plaintiff’s Non-Party
Subpoena for Production of Documents from the National Board of Medical Examiners,
from which Zawislak appeals in this cause, is now appealable.
On February 15, 2018, however, the Clerk of this Court notified Zawislak that we
have not received the docketing statement in this cause and that this appeal would be
dismissed if the docketing statement was not filed within twenty-one days of the date of
the letter. Zawislak filed his docketing statement in Cause No. 10-18-00038-CV on
February 22, 2018, but no response has been received from Zawislak in this cause.
Accordingly, this appeal is dismissed. See TEX. R. APP. P. 42.3(b), (c). We note, however,
that this opinion does not limit Zawislak’s right, if any, to address the Order Denying
Zawislak v. Tex. A&M Univ. Health Sci. Ctr. Page 3
Plaintiff’s Motion to Enforce Plaintiff’s Non-Party Subpoena for Production of
Documents from the National Board of Medical Examiners in Cause No. 10-18-00038-CV.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring with a note)*
Appeal dismissed
Opinion delivered and filed April 18, 2018
[CV06]
* “(Chief Justice Gray concurs in the Court’s judgment to the extent it dismisses
the appeal. His basis for such dismissal is, however, solely on the lack of jurisdiction and
not for want of prosecution or failure to comply with a rule, order, or notice. A separate
opinion will not issue.)”
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