Motion Denied, Appeal Dismissed, and Memorandum Opinion filed August 2,
2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00482-CV

                     MICHAEL T. MANN, M.D, Appellant
                                         V.

                      KENDERRICK MERRITT, Appellee

                    On Appeal from the 295th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-42856

                 MEMORANDUM                        OPINION
      This is an interlocutory appeal in a health care liability case. Appellant
Michael T. Mann, M.D., is one of three defendants. All three defendants filed
motions to dismiss appellee/plaintiff Kenderrick Merritt’s claims for failure to serve
an expert report as required by chapter 74 of the Texas Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2017). Then, after
Merritt served a report written by Emilio Lobato, M.D., all three defendants objected
to the sufficiency of the report. Id. § 74.351(l).

      The trial court signed an order on May 23, 2018, which states in relevant part:

      Came on to be heard Defendants’ Objections to the Sufficiency of
      Plaintiff’s Chapter 74 expert report written by Emilio Lobato, M.D. and
      Motions to Dismiss. Upon consideration, the Court makes the
      following rulings:
      (1)    Defendants’ objections that Dr. Lobato’s report constitutes no
             report are overruled.

      (2)    Plaintiff has 30 days from the date of this Order for Dr. Lobato
             to amend his report to state specific facts as to causation — what
             exactly happened to Plaintiff that should have been prevented;
             how the harm/injury to Plaintiff should be have been prevented;
             and by whom.

Mann filed a notice of appeal from the May 23, 2018 order; the other two defendants
did not.

      Section 51.014(a)(9) of the Civil Practice and Remedies Code permits an
interlocutory appeal from an order that “denies all or part of the relief sought by a
motion under Section 74.351(b), except that an appeal may not be taken from an
order granting an extension under Section 74.351.” The May 23, 2018 order does
not deny Mann’s motion to dismiss in whole or in part; rather, it allows an amended
report. Accordingly, it is not appealable under section 51.014(a)(9).

      On July 2, 2018, we notified the parties of our intent to dismiss the appeal for
lack of jurisdiction. Mann filed a response contending the order denies his motion to
dismiss for failure to serve an expert report, which denial may be challenged on
interlocutory appeal. He acknowledges the trial court’s granting of an extension to
time to file an amended expert report is not appealable. Id. (“ . . . an appeal may not
be taken from an order granting an extension under Section 74.351”). Mann also


                                            2
says the court’s “agree[ment] that the untimely report was insufficient” is not at issue
in his appeal.

      We disagree with Mann’s reading of the May 23, 2018 order. The order
effectively grants an extension to file an expert report and, therefore, is not an
appealable interlocutory order. Id.

      We DISMISS this appeal for lack of jurisdiction. Mann’s motion for
extension of time to file his brief is DENIED AS MOOT.



                                      PER CURIAM



Panel consists of Justices Boyce, Christopher, and Busby




                                           3
