Texas Supreme Court holds that dismissal of med mal suit by Plaintiff does not prevent defendant
from pursuing appeal regarding sanctions claim against plaintiff which the trial court had denied.

Barrera, M.D. v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam)  (appealability of denial of
sanctions sought by doctor after plaintiff's nonsuit and dimissal without prejudice of health care liability suit;
adequacy and timeliness of expert report required by statute)     

FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (
13-04-00480-CV, ___ S.W.3d ___, 07-
respondent's motion to supplement response brief on the merits granted
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Opinion by Justice Dori Contreras Garza in the court of appeals below: Barrera v. Rico, (Tex.App.-
Corpus Christi [13th Dist.] July 21, 2005, pet. filed) (appeal dismissed as moot for want of jurisdiction) ("
conclude that this Court lacks subject matter jurisdiction to review the two interlocutory orders because they were
rendered moot by the trial court's subsequent dismissal of the case.  See FDIC v. Nueces County, 886 S.W.2d
766, 767 (Tex. 1994).  The nonsuit vitiated the orders and rendered moot any controversy regarding them.  See
In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). This appeal is therefore dismissed
for lack of jurisdiction.

Also see:

Villafani, M.D. v. Trejo, No. 06-0501 (Tex. Apr. 18, 2008)(Wainwright) (Medical malpractice, denial of sanctions,
effect of plaintiff's non-suit on defendant's right to pursue appeal of order denying motion for attorney's fees as a
Regent Care Center of San Antonio II, LP, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC sanctions
Decisions of the Texas Supreme Court in Appeals from lawsuits involving health care liability claims |
Recent Texas Supreme Court Opinions | Texas Opinions Portalpage | HCLC from Houston Appeals Courts



At issue in this case is whether the trial court’s denial of two motions for dismissal with prejudice and sanctions
under former article 4590i of the Medical Liability Insurance Improvement Act (MLIIA) is appealable following a
plaintiff’s nonsuit.[1]

A divided court of appeals dismissed the case for lack of jurisdiction, concluding that the trial court’s subsequent
entry of the plaintiff’s nonsuit rendered moot the two interlocutory orders denying the motions. __ S.W.3d __, __.
Because our decision in
Villafani v. Trejo, __ S.W.3d __ (Tex. 2008), governs the case at bar, we reverse the
court of appeals’ judgment and remand to the court of appeals to consider the merits of the appeal.

On August 29, 2003, plaintiffs Isela Rico and Manuel Rico (the Ricos) filed suit against Dr. Ricardo Barrera for
medical malpractice individually and as parents and next friends of Gloria Rico. On March 22, 2004, the Ricos
filed an expert report. The trial court denied both of Barrera’s subsequent motions for dismissal and sanctions,
which claimed that the expert report was untimely and inadequate. The Ricos then filed a notice of nonsuit
without prejudice. On the same day, the trial court entered an order granting the nonsuit without prejudice.
Barrera then timely perfected an appeal of the trial court’s orders denying his two motions. The court of appeals
held that the nonsuit and dismissal rendered the interlocutory orders moot and thus deprived the court of
jurisdiction. __ S.W.3d at __.

In Villafani, a defendant physician appealed the trial court’s denial of his motion for dismissal and sanctions after
the entry of nonsuit. We held that the court of appeals had jurisdiction to determine whether the trial court
abused its discretion in denying the motion. Villafani, __ S.W.3d at __. Similarly, Barrera appealed the trial court’
s denials of his motions after the entry of nonsuit. The court of appeals’ judgment that it lacked jurisdiction in this
case is thus erroneous. See id.

Accordingly, without hearing oral argument, we grant the petition for review, reverse the court of appeals’
judgment, and remand this case to that court to consider the merits of the appeal in light of our opinion in
Villafani. See Tex. R. App. P. 59.1, 60.2(f).



[1] Prior to the filing of this case, the Legislature repealed, codified, and amended parts of the MLIIA. Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, 2003 Tex. Gen. Laws 847 (current version at Tex. Civ. Prac. & Rem. Code §§ 74.001–.507). The amendments
relevant to this case were not made effective until September 1, 2003. Accordingly, Texas Revised Civil Statutes article 4590i
continues to govern this case. Acts of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, amended by Act of May
18, 1979, 66th Leg., R.S., ch. 596, 1979 Tex. Gen. Laws 1259, amended by Act of May 26, 1989, 71st Leg., R.S., ch. 1027, §§ 27,
28, 1989 Tex. Gen. Laws 4128, 4145, amended by Act of March 21, 1991, 72d Leg., R.S., ch. 14, § 284, 1991 Tex. Gen. Laws 42,
222, amended by Act of May 25, 1993, 73d Leg., R.S., ch. 625, 1993 Tex. Gen. Laws 2347, amended by Act of May 5, 1995, 74th
Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985, amended by Act of June 1, 1997, 75th Leg., R.S., ch. 1228, 1997 Tex. Gen. Laws
4693, amended by Act of June 2, 1997, 75th Leg., R.S., ch. 1396, §§ 44, 45, 1997 Tex. Gen. Laws 5202, 5249, amended by Act of
May 13, 1999, 76th Leg., R.S., ch. 242, 1999 Tex. Gen. Laws 1104, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §
10.09, 2003 Tex. Gen. Laws 847, 884.