Fryday v. Michaelski

DISSENTING OPINION

I disagree that Fryday conclusively established that the trial court lacked subject matter jurisdiction over Michaelski's claims and, therefore, that the trial judge erred in denying Fryday's motion to dismiss. Because the majority holds otherwise, I respectfully dissent.

I agree that this court has appellate jurisdiction over the denial of Fryday's motion to dismiss pursuant to Civil Practice and Remedies Code section § 51.014(a)(5) even though Fryday did not file a summary judgment motion. See Austin State Hosp. v. Graham , 347 S.W.3d 298, 301 (Tex. 2011) ; Phillips v.…