Juan Mario Villafani, M.D. v. Adela Trejo

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. DISSENTING MEMORANDUM OPINION ON MOTION FOR CONSIDERATION EN BANC Before the Court En Banc Dissenting Memorandum Opinion by Justice Castillo This case is now before the Court on motion for consideration en banc. See Tex. R. App. P. 41.2(c), 49.7. Appellant, Juan Mario Villafani maintains that the majority panel opinion leaves him without an adequate remedy at law because it conflicts with well-settled precedent, including our own. Respectfully, I agree. Accordingly, I disagree with the majority's denial of his motion for consideration en banc. I. The Opinion The trial court denied Villafani's motion for dismissal and sanctions for failure to file an expert report that complied with former article 4590i of the Texas Revised Civil Statutes.[1] After appellee's non-suit and the trial court's dismissal without prejudice, Villafani appealed. The majority panel opinion determined the order denying Villafani's motion was interlocutory, subsequently rendered moot by the dismissal of the case, and vitiated by the non-suit. Concluding that rule 162 of the Texas Rules of Civil Procedure cannot be a basis for jurisdiction, the majority dismissed the appeal for lack of jurisdiction. See Tex. R. Civ. P. 162. II. En Banc Consideration Villafani maintains in part that, under Felderhoff v. Knauf, 819 S.W.2d 110, 111 (Tex. 1991) (per curiam), a non-suit does not act as a waiver, bar or adjudication precluding plaintiffs from complaining on appeal of monetary sanctions granted before the non-suit and, conversely, the denial of monetary sanctions is likewise not precluded. Villafani also asserts that en banc consideration is necessary because the opinion conflicts with this Court's decisions as to finality, among others. The majority disagrees. Because the question of jurisdiction is a legal question, we follow the de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 160 (Tex. App.BCorpus Christi 2003, no pet.). Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2005); Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam). The law does not require that a final judgment be in any particular form. Parks, 112 S.W.3d at 161 (citing Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). In this case, the interlocutory order denying Villafani's motion became final when the trial court dismissed the case. We have jurisdiction over a final order. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). In this case, the order denying Villafani's motion to dismiss became final and appealable. Lehmann, 39 S.W.3d at 195. Villafani timely perfected his appeal of a final order. See Tex. R. App. P. 25.1(b), 26.1(a), 33.1(a)(1). We have jurisdiction. See Anglin, 842 S.W.2d at 272. A dismissal of the appeal for lack of jurisdiction is without basis in law or in fact. Because the majority opinion presents a conflict with this Court's precedent as to our jurisdiction, respectfully, I would grant en banc consideration. Tex. R. App. P. 41.2(c); see also Tex. R. App. P. 49.7. III. Conclusion To maintain uniformity of our decisions as to our jurisdiction, I would grant the motion. ERRLINDA CASTILLO Justice Dissenting Memorandum Opinion delivered and filed this the 11th day of May, 2006. [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, I will refer to it by its former statutory designation, article 4590i.