NO APPELLATE JURISDICTION FOR DENIAL OF A DO-OVER CHAPTER 74 MOTION

Texas Cityview Care Center LP v. Foster
Fort Worth Court of Appeals, No. 02-13-00315-CV (February 19, 2015)
Justices Livingston and Gardner (Opinion)
The Fort Worth Court of Appeals held it did not have appellate jurisdiction to consider the denial of defendant’s summary judgment motion that was merely a “rebranded” motion to dismiss under Chapter 74. An employee of the defendant rehabilitation facility sued the facility, alleging she was injured while caring for a patient. The defendant moved to dismiss on the grounds that plaintiff had failed to file an expert report as required by Chapter 74 of the Civil Practice & Remedies Code for all health care liability claims. The trial court denied the motion, and defendant did not exercise its right to appeal under § 74.351(b) of the Civil Practice & Remedies Code. Several weeks later, the defendant later filed a summary judgment motion on the same grounds, which the trial court also denied. This time, the defendant appealed. The Fort Worth Court, however, dismissed the defendant’s interlocutory appeal. The Court held it would have jurisdiction to consider an order that “denies all or part of the relief sought by a motion under Section 74.351(b),” regardless of whether that motion is styled as a motion to dismiss or a motion for summary judgment—i.e., § 74.351(b) is not limited to appeals from the denial of a motion to dismiss. But it did not have jurisdiction in this case because the summary judgment motion was simply a “rebranding” of the previously-denied motion to dismiss, and the defendant waived its right to interlocutory appeal by failing to timely appeal the original order on the motion to dismiss.

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