Mark Anthony Hegwood, Individually, as Surviving Parent of Xavier Alexander Hegwood, and as Next Friend of Kamyra Faith Hegwood v. American Habilitation Services, Inc. D/B/A Thomas Care Center

Opinion issued May 10, 2007









In The

Court of Appeals

For The

First District of Texas





NO. 01-06-00460-CV





MARK ANTHONY HEGWOOD, INDIVIDUALLY, AS SURVIVING PARENT OF XAVIER ALEXANDER HEGWOOD, AND AS NEXT FRIEND OF KAMYRA FAITH HEGWOOD, Appellant


V.


AMERICAN HABILITATION SERVICES, INC.

D/B/A THOMAS CARE CENTER, Appellee





On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2005-35383



 


MEMORANDUM OPINION

          Appellant, Mark Anthony Hegwood, appeals from an interlocutory order dismissing his wrongful death and survival claims against appellee, American Habilitation Services, Inc. d/b/a Thomas Care Center, for failing to file a preliminary expert report as required by former Civil Practice and Remedies Code section 74.351(a). Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003 Tex. Gen. Law 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, 2005 Tex. Gen. Law 1590. Hegwood sued the Center over his son Xavier’s death while Xavier was a patient in the Center’s care facility. Hegwood sued in his capacity as Xavier’s father, as surviving parent of Xavier, and as next friend of Xavier’s sister, Kamyra. We dismiss for want of jurisdiction.

          Hegwood filed suit in the 333nd District Court of Harris County. Xavier’s mother, Rachael Ford, had previously filed suit against the Center in the 129th District Court. The Center and Hegwood agreed to consolidate Hegwood’s suit with Ford’s suit. After consolidation in the 129th District Court, the Center asserted that Hegwood’s suit was a health care liability claim and filed a motion to dismiss based on Hegwood not filing the expert report required by former Civil Practice and Remedies Code section 74.351(a). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2006) (requiring trial court to dismiss with prejudice case in which expert report required by subsection (a) is not timely served). The trial court granted the motion to dismiss based on section 74.351(b), but Hegwood’s claims were not severed.

          The record does not reflect that a final judgment has been signed in the underlying case, nor do the parties claim such a judgment has been filed. Civil Practice and Remedies Code section 51.014(a)(9) allows an interlocutory appeal if the trial court “denies all or part of the relief sought by a motion under Section 74.351(b).” Tex. Civ. Prac & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2006) (emphasis added). The trial court did not deny the motion to dismiss and there is no final judgment because Ford’s claims remained pending. According, we have no jurisdiction to hear this interlocutory appeal.

          We dismiss the appeal for want of jurisdiction. The Clerk of this Court is directed to issue the mandate immediately. See Tex. R. App. P. 18.6.

 

 

                                                             Sam Nuchia 

                                                             Justice

 

Panel consists of Justices Nuchia, Hanks, and Bland.