DISMISS and Opinion Filed July 12, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00291-CV 

CODY BERNARD, INDIVIDUALLY AND AS REPRESENTATIVE OF 

THE ESTATE OF PAUL BERNARD, AND BLAKE BERNARD, Appellants 

V. 

ALEXANDER WESLEY KADIN, M.D., MEMORIAL HERMANN 

HEALTH SYSTEM D/B/A MEMORIAL HERMANN KATY HOSPITAL, 

CHI ST. LUKE’S HEALTH – THE WOODLANDS HOSPITAL, YASIR 

ELHAWI, M.D., AND HEINE RUIZ, M.D., Appellees 

On Appeal from the 215th District Court 

Harris County, Texas 

Trial Court Cause No. 2020-53620 

MEMORANDUM OPINION 

Before Chief Justice Burns, Justice Molberg, and Justice Smith 

Opinion by Chief Justice Burns 

This interlocutory appeal, from the trial court’s orders granting appellees’ 

individual motions to dismiss the underlying health care liability claims against 

them, was brought pursuant to section 51.014(a)(10) of the Texas Civil Practice and 

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10). Because 

section 51.014(a)(10) does not authorize the appeal and neither does any other 
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statute or rule, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a). 

It is well-established that an appeal may only be taken from a final judgment 

that disposes of all parties and claims or from an interlocutory order as authorized 

by statute. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). 

Of the interlocutory rulings a trial court may make in a health care liability suit, 

appellate review is allowed for just two: (1) an order denying relief under section 

74.351(b) and (2) an order granting relief under section 74.351(l). See CIV. PRAC.

& REM. CODE §§ 51.014(a)(9),(10); Lewis v. Funderburk, 253 S.W.3d 204, 207 

(Tex. 2008). Both sections allow for challenges to the expert report required to be 

served on the defendant no later than 120 days after the date the defendant’s answer 

is filed, see CIV. PRAC. & REM. CODE § 74.351(a), but section 74.351(b) applies once 

the 120-day window has closed and further allows the defendant to move for 

dismissal of the claim with prejudice and for reasonable attorney’s fees and costs. 

See Funderburk, 253 S.W.3d at 207 (comparing sections 74.351(b) and (l)). 

The record here reflects the expert reports were timely served, and the motions 

to dismiss were filed after the 120-day window had closed. The record further 

reflects the motions to dismiss challenged the sufficiency of appellants’ expert 

reports and, except for one, requested mandatory attorney’s fees and costs. The 

appealed orders sustained the objections to the reports and dismissed the claims 
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against appellees but did not determine the amount of fees and costs to be awarded, 

with one order specifically stating that the amount was “TBD.” 

Given the record, we questioned whether section 51.014(a)(10) authorized the 

appeal. In jurisdictional briefing filed at our request, appellants urge the appeal is 

authorized under that section because, by sustaining the challenges, the orders 

granted relief under section 74.351(l). Alternatively, they argue the orders are final 

because all defendants have been dismissed. 

Although the orders sustained appellees’ challenges to the reports, the orders 

further dismissed the claims against appellees. An order that dismisses a health care 

liability claim is an order under section 74.351(b). See Funderburk, 253 S.W.3d at 

207. And, while all defendants may have been dismissed, the orders are not final 

because the claims for fees and costs remain pending.1

 See Jack B. Anglin, 842 

S.W.2d at 272. 

Because the appealed orders granted relief under section 74.351(b) and did 

not address attorney’s fees and costs, they are unappealable interlocutory orders. 

Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a). 

210291F.P05 

1

 Appellants request that, in the event we determine the judgment is not final, we grant them sixty days 

to secure a final judgment. Nothing before us, however, reflects a hearing on the issue of fees and costs is 

imminent or has even been set. Accordingly, we decline the request. 

/Robert D. Burns, III/

ROBERT D. BURNS, III 

CHIEF JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CODY BERNARD, 

INDIVIDUALLY AND AS 

REPRESENTATIVE OF THE 

ESTATE OF PAUL BERNARD, 

AND BLAKE BERNARD, 

Appellants 

No. 05-21-00291-CV V. 

ALEXANDER WESLEY KADIN, 

M.D., MEMORIAL HERMANN 

HEALTH SYSTEM D/B/A 

MEMORIAL HERMANN KATY 

HOSPITAL, CHI ST. LUKE’S 

HEALTH - THE WOODLANDS 

HOSPITAL, YASIR ELHAWI, 

M.D., AND HEINE RUIZ, M.D., 

Appellees 

 On Appeal from the 215th District 

Court, Harris County, Texas 

Trial Court Cause No. 2020-53620. 

Opinion delivered by Chief Justice 

Burns, Justices Molberg and Smith 

participating. 

 In accordance with this Court’s opinion of this date, we DISMISS the appeal. 

 
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We ORDER that appellees Alexander Wesley Kadin, M.D., Memorial Hermann 

Health System d/b/a Memorial Hermann Katy Hospital, CHI St. Luke’s Health - The 

Woodlands Hospital, Yasir Elhawi, M.D., and Heine Ruiz, M.D. recover their costs, 

if any, of this appeal from appellants Cody Bernard, Individually and as 

Representative of the Estate of Paul Bernard, and Blake Bernard. 

Judgment entered July 12, 2021.