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NUMBER 13-04-449-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN MARIO VILLAFANI, M.D., Appellant,
v.
ADELA TREJO, Appellee.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Castillo, and Garza
Memorandum Opinion by Justice Garza
By one issue, appellant, Juan Mario Villafani, M.D., appeals the trial court=s denial of his motion for dismissal and sanctions for failure to file an expert report that conformed to the requirements of former article 4590i of the Texas Revised Civil Statutes.[1] We dismiss for lack of jurisdiction.
Appellee Adela Trejo sued Villafani alleging medical negligence. On November 25, 2003, Trejo produced her expert report required by '13.01(d) of 4590i of the Texas Revised Civil Statutes. Villafani filed his Motion for Sanctions and dismissal alleging the report was inadequate. The trial court denied Villafani=s motion on April 7, 2004. Trejo then filed a notice of non-suit on her claims against Villafani, see Tex. R. Civ. P. 162, and the trial court dismissed the claims without prejudice on July 29, 2004. Subsequently, appellant appealed to this Court, challenging the trial court=s denial of his motion. We conclude that this Court lacks subject matter jurisdiction to review the interlocutory order because it was rendered moot by the trial court=s subsequent dismissal of the case. See FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). The non-suit vitiated the order and rendered any controversy moot. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). The motion for sanctions and dismissal was not a pending claim at the time the non-suit was granted. Accordingly, rule 162 cannot be a basis for jurisdiction. See Tex. R. Civ. P. 162. This appeal is therefore dismissed for lack of jurisdiction.
_______________________
DORI CONTRERAS GARZA,
Justice
Dissenting Memorandum Opinion
by Justice Errlinda Castillo.
Memorandum Opinion delivered and
filed this the 6th day of October, 2005.
[1] See Medical Liability and Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204 ' 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.001‑.507 (Vernon 2005)). Because the repealed act was in effect at the time Trejo filed this lawsuit, we will refer to it by its former statutory designation, article 4590i.