












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-07-353-CV
 
 
MALCOLM BARBER, LEANN BARBER,                                   APPELLANTS

AND
LEO C. MERCER, JR., M.D.
 
                                                   V.
 
MALCOLM BARBER, LEANN BARBER,                                      APPELLEES
WILLIAM
F. DEAN, M.D., 
MIKKO
PETER TAURIAINEN, M.D., AND 
CARDIOVASCULAR
AND THORACIC 
SURGICAL
GROUP OF WICHITA FALLS, P.A.
 
                                              ------------
 
             FROM
THE 30TH DISTRICT COURT OF WICHITA COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------
Leo C. Mercer, Jr., M.D. is
attempting to appeal the trial court=s order overruling certain of Mercer=s objections to the expert report filed by appellees Malcolm and Leann
Barber.  We dismiss the appeal for want
of jurisdiction.




Mercer moved to dismiss the
Barbers= suit on the ground that their timely filed expert report was
inadequate.  Mercer also filed objections
to the expert report.  The trial court
entered an order overruling Mercer=s objections to the expert=s qualifications, sustaining Mercer=s objections to certain elements of the expert report, and granting
the Barbers a thirty-day extension to cure the deficiencies in the report.  The trial court did not rule on Mercer=s motion to dismiss.
We notified Mercer by letter
of our concern that we lack jurisdiction over the appeal because an order
granting an extension of time to cure an expert report is not appealable by
interlocutory appeal.[2]  In response to our jurisdiction letter,
Mercer states that he is not appealing the trial court=s order granting the Barbers an extension of time to cure the
deficient elements of their expert report. 
Instead, Mercer states that he Aappeals only the denial of his objections and motion to dismiss based
on [the expert=s] lack of
qualifications to opine against Dr. Mercer.@




The trial court has not
denied Mercer=s motion to
dismiss, however.  Further, this court
has held that an order denying a motion to dismiss based on the alleged
inadequacy of an expert report is not appealable by interlocutory appeal.[3]  Mercer argues that we have jurisdiction to
consider his Alimited
interlocutory appeal challenging the denial of his objections@ to the Barbers= expert=s qualifications; however, this matter is not listed in section
51.014.[4]  Accordingly, we dismiss Mercer=s appeal for want of jurisdiction.[5]
 
PER CURIAM
PANEL D: 
CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DELIVERED: 
December 20, 2007                                   
 
 




[1]See Tex. R. App. P. 47.4.


[2]See Tex. Civ. Prac. & Rem. Code Ann. '
51.014(a)(9) (Vernon Supp. 2007).


[3]See
Jain v. Stafford, 214 S.W.3d 94, 97 (Tex. App.CFort
Worth 2006, pet. dism=d).


[4]See Tex. Civ. Prac. & Rem. Code Ann. '
51.014 (Vernon Supp. 2007).


[5]Hereinafter,
the style of this case shall be AMalcolm Barber and Leann
Barber v. William F. Dean, M.D., Mikko Peter Tauriainen, M.D., and
Cardiovascular and Thoracic Surgical Group of Wichita Falls, P.A.@


