                                   NO. 07-10-0360-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JANUARY 26, 2011

                          ______________________________


        TEXAS ALC PARTNERS II, L.P. D/B/A POTTER HOUSE, APPELLANT

                                            V.

      TERESA STARK, AS NEXT FRIEND OF FRED A. GRABEAL, APPELLEE


                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 98,015-A; HONORABLE DAN SCHAAP, JUDGE

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Texas ALC Partners II, L.P. d/b/a Potter House (Texas ALC Partners),

filed this interlocutory appeal from an order denying its motion to dismiss with prejudice,

the claims of Appellee, Teresa Stark, as Next Friend of Fred Grabeal, for failing to file
an expert report pursuant to section 74.351 of the Texas Civil Practice and Remedies

Code.1 We conclude this appeal is moot and remand the cause to the trial court.


                                                Background


        Grabeal was diagnosed with Alzheimer's disease in the Spring of 2004 and

became a patient at Potter House, an assisted living community, in May 2007. Potter

House is not a lock down facility, i.e., the residents are not confined to their living

quarters by locked doors and the doors to the outdoors are not locked so as to prevent

the residents from leaving the premises.                    On October 13, 2009, Stark, Grabeal's

stepdaughter, filed suit on Grabeal's behalf against "Potter House, Assisted Living

Concepts, Inc." (Assisted Living Concepts) alleging negligence, premises liability, and

breach of contract claims for injuries sustained when Grabeal, a resident, wandered off

the premises on May 17 and 18, 2009. Grabeal was later found by Amarillo Police

Department officers. On November 6, 2009, Assisted Living Concepts filed its original

answer, verified denial, and affirmative defenses, alleging among other things, that it

was not liable in the capacity sued because it neither owned nor did business as Potter

House.

        On February 22, 2010, Assisted Living Concepts filed a Motion to Dismiss for

Failure to Serve Expert Report. On May 21, 2010, the trial court entered its Order


1
 Under chapter 74 of the Texas Civil Practice and Remedies Code, a health care liability claimant must
serve an expert report on a defendant physician or health care provider within 120 days after the date the
original petition was filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2010). If such a
report is not served, a defendant physician or health care provider may file a motion to dismiss the claim
with prejudice to its refiling. Id. at § 74.351(b)(2). If the trial court's order on the motion to dismiss "denies
all or part of the relief sought by the motion," the movant may file an interlocutory appeal of the trial court's
order. Id. at § 51.014(a)(9). For convenience, future citations to the provisions of the Texas Civil Practice
and Remedies Code throughout the remainder of this opinion will be simply as "section ____" or "§ ____."


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dismissing, with prejudice, Stark's health care liability claims, but denying that portion of

Assisted Living Concepts's motion to dismiss on the premises liability and breach of

contract claims.

        Assisted Living Concepts filed an interlocutory appeal challenging the trial court's

order on the motion to dismiss. This Court disposed of the appeal on November 23,

2010.2 However, while that appeal was pending in this Court, Stark filed an amended

petition in the trial court on June 4, 2010, adding Texas ALC Partners as a defendant.

Texas ALC Partners filed a motion to dismiss with prejudice again alleging Stark had

failed to file an expert report as required by section 74.351(a) of the Code. Texas ALC

Partners also alleged that adding a new defendant did not entitle Stark to a new 120

day deadline in which to file an expert report.

        Relying on this Court's opinion in Daybreak Community Services v. Cartrite, 320

S.W.3d 865 (Tex.App.--Amarillo 2010, no pet.)                 Stark responded to the motion to

dismiss and argued that the first-filed petition naming Texas ALC Partners triggered the

120 day deadline for filing an expert report as to that defendant. On August 26, 2010,

the trial court denied the motion to dismiss filed by Texas ALC Partners and this

interlocutory appeal followed.

        Just prior to scheduled oral arguments in this appeal, it came to this Court's

attention that Stark filed a non-suit in underlying trial court cause number 98,015-A. A

supplemental clerk's record has since been filed confirming that non-suit.


2
  In Assisted Living Concepts, Inc. v. Teresa Stark, as Next Friend of Fred Grabeal, No. 07-10-00228-CV,
2010 Tex. App. LEXIS 9326 (Tex.App.--Amarillo Nov. 23, 2010, no pet.) (mem. op.), this Court found that
Stark's claims required expert testimony and held the trial court correctly dismissed Stark's health care
liability claims, but reversed that portion of the order as to Stark's remaining claims and rendered
judgment dismissing, with prejudice, all claims against Assisted Living Concepts.

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      A plaintiff has an absolute right to take a non-suit at any time before the plaintiff

has introduced all of his evidence other than rebuttal evidence. See Tex. R. Civ. P.

162. See also Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 157

(Tex. 2007). A non-suit moots not only the underlying case, but also the appeal of that

case. Ferrell, 248 S.W.3d at 157. Consequently, we need not address the propriety of

the trial court's order denying the motion to dismiss of Texas ALC Partners.

                                      Conclusion

      Accordingly, the non-suit filed by Teresa Stark, as Next Friend of Fred A.

Grabeal, in trial court cause number 98,015-A, renders this appeal moot. However, the

interlocutory posture of this case requires that we remand the cause to the trial court

with instructions to determine whether any claims remain and if not, to render a final

judgment.



                                                Patrick A. Pirtle
                                                    Justice




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