Central Texas Spine Institute LLP v. Brinkley
Appellee filed suit against appellants Central Texas Spine Institute LLP and William Peyton Taylor, M.D., alleging direct and vicarious health care liability claims. Brinkley timely filed and served an expert report implicating only Taylor, to which the defendants raised no objections. Thereafter, Brinkley filed an amended petition specifying that the vicarious-liability claims against both defendants were based on the conduct of their employees or agents, "including, but not limited to," Randall Dryer, M.D. CTSI and Taylor moved to dismiss the vicarious-liability claims arising from Dryer's alleged conduct on the basis that Brinkley had failed to file and serve an expert report as to Dryer. The trial court denied CTSI and Taylor's motion to dismiss by order dated April 8, 2010. In the same order, however, the trial court granted Brinkley a 30-day extension to cure any deficiencies in the expert report. CTSI and Taylor did not appeal the April 8 order. Instead, on Sept. 3, 2010, CTSI and Taylor filed a "Second Motion to Dismiss." The trial court determined that the defendants' second motion to dismiss was in fact a motion for reconsideration of the April 8 order and denied the motion, ruling that the April 8 order "remains in effect." CTSI and Taylor then filed this accelerated interlocutory appeal of the subsequent order. If the vicarious-liability claim arising from Dryer's alleged conduct is a separate claim in support of which no expert report was filed, then CTSI and Taylor were entitled to take an interlocutory appeal of the April 8 order denying their motion to dismiss. They failed to do so. Under either characterization of the vicarious-liability claims arising from Dryer's alleged conduct, the court of appeals lacks jurisdiction to review the merits of the motion to dismiss. The appeal is dismissed for want of jurisdiction. Austin Court of Appeals, No. 03-10-00753-CV, 06-08-2011.