Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE MCALLEN ANESTHESIA CONSULTANTS, P.A., DOCTORS HOSPITAL AT RENAISSANCE, LTD. D/B/A DOCTORS HOSPITAL ATRENAISSANCE, AND EDGAR ARMANDO RODRIGUEZ, M.D.
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Benavides and Longoria
MEMORANDUM OPINION ON RECONSIDERATION
LONGORIA, JUSTICE 
opinion issued on May 8, 2018, this Court denied mandamus
relief in this case. See In re McAllen Anesthesia
Consultants, P.A., No. 13-18-00140-CV, 2018 WL 2127015,
at *1 (Tex. App.-Corpus Christi May 8, 2018, orig.
proceeding) (mem. op.). Subsequently, relators filed a
"Second Advisement to the Court and Motion for
Reconsideration." We deny relators' motion for
reconsideration but we withdraw our previous opinion and
issue this opinion in its place.
McAllen Anesthesia Consultants, P.A., Doctors Hospital at
Renaissance, Ltd. d/b/a Doctors Hospital at Renaissance, and
Edgar Armando Rodriguez, M.D., filed a petition for writ of
mandamus in the above cause on March 12, 2018. Through this
original proceeding, relators seek a writ of mandamus
compelling the trial court to vacate its order denying
relators' motion to quash and to issue an order
prohibiting all discovery until "all [d]efendants have
been served with a proper expert report." Relators, in
sum, seek to quash the deposition of their co-defendant,
Roger Sims. The underlying proceeding is a health care
liability suit and relators contend that this discovery
violates section 74.351(s) of the Texas Civil Practice and
Remedies Code because they have not been served with an
expert report in this case.  See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(s) (West, Westlaw through
2017 1st C.S.).
Court requested and received a response to the petition for
writ of mandamus from the real parties in interest, Jose
David Sanchez, individually and as guardian of the person and
estate of Arleena Mancha Sanchez and as next friend of
D.A.S., a minor. See Tex. R. App. P. 52.2, 52.4,
52.8. Relators filed a reply to the real parties'
response. Relators further filed an "Advisement to the
Court Concerning Service of Expert Report on Defendant Roger
Sims, CRNA." According to this pleading and the attached
"Notification of Service, " Sims and the other
defendants in the suit have been served with the
"Chapter 74 Expert Report of Jay Ellis, M.D."
to relators' "Second Advisement to the Court and
Motion for Reconsideration, " all defendants have
received a copy of the expert report served on Sims, but that
report did not "discuss or mention the care provided by
the other defendants, " and the real parties have not
yet served expert reports pertaining to the remaining
defendants in the underlying lawsuit. This Court requested
and received a response to the "Second Advisement to the
Court and Motion for Reconsideration" from the real
parties in interest. The real parties assert that
relators' motion for reconsideration is moot because they
are represented by new counsel, and new counsel "does
not intend to proceed with discovery until all Defendants
have been served with an expert report to the extent required
under [Texas Civil Practice and Remedies Code section 74.351
(West, Westlaw through 2017 1st C.S.)]."
is an extraordinary remedy. In re H.E.B. Grocery
Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)
(per curiam). Mandamus relief is proper to correct a clear
abuse of discretion when there is no adequate remedy by
appeal. In re Christus Santa Rosa Health Sys., 492
S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator
bears the burden of proving both of these requirements.
In re H.E.B. Grocery Co., 492 S.W.3d at 302;
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding). An abuse of discretion occurs when a
trial court's ruling is arbitrary and unreasonable or is
made without regard for guiding legal principles or
supporting evidence. In re Nationwide Ins. Co. of
Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding);
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.
2012). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against the
detriments. In re Essex Ins. Co., 450 S.W.3d 524,
528 (Tex. 2014) (orig. proceeding); In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
discovery order that compels production beyond the rules of
procedure is an abuse of discretion for which mandamus is the
proper remedy. In re Nat'l Lloyds Ins. Co., 507
S.W.3d 219, 223 (Tex. 2016) (orig. proceeding). A trial court
clearly abuses its discretion when it compels discovery from
a health care provider in circumstances where the health care
provider is entitled to first be served with a section
74.351(a) expert report and curriculum vitae. See In re
Jorden, 249 S.W.3d 416, 420-21 (Tex. 2008) (orig.
proceeding); In re Sandate, 544 S.W.3d 9, 11 (Tex.
App.-Dallas 2017, orig. proceeding [mand. denied]); In re
Lumsden, 291 S.W.3d 456, 462 (Tex. App.-Houston [14th
Dist.] 2009, orig. proceeding); see also In re McAllen
Anesthesia Consultants, P.A., No. 13-17-00584-CV, 2017
WL 6492002, at *1 (Tex. App.-Corpus Christi Dec. 18, 2017,
orig. proceeding) (mem. op.).
Court, having examined and fully considered the petition for
writ of mandamus, the response, and the additional filings
provided by the parties to this original proceeding, is of
the opinion that this matter has been rendered moot. See
City of Krum, Tex. v. Rice, 543 S.W.3d 747, 749 (Tex.
2017) (per curiam) (stating that a case is moot when either
no live controversy exists between the parties or the parties
have no legally cognizable interest in the outcome);
Heckman v. Williamson Cty., 369 S.W.3d 137, 162
(Tex. 2012) ("Put simply, a case is moot when the
court's action on the merits cannot affect the
parties' rights or interests."); In re Kellogg
Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)
(orig. proceeding) ("A case becomes moot if a
controversy ceases to exist between the parties at any stage
of the legal proceedings, including the appeal.").
Accordingly, the Court DISMISSES the petition for writ of
mandamus as moot. See Tex. R. App. P. 52.8(a). This
dismissal is without prejudice to refiling if necessary.
 See Tex. R. App. P. 52.8(d)
("When granting relief, the court must hand down an
opinion as in any other case, " but when "denying
relief, the court may hand down an opinion but is not
required to do so."); Tex.R.App.P. 47.4 (distinguishing
opinions and memorandum opinions).
 This original proceeding arises from
trial court cause number C-3007-17-G in the 370th Judicial
District Court of Hidalgo County, Texas, and the Honorable
Noe Gonzalez is the respondent. See Tex. R. App. P.
52.2. This Court conditionally granted mandamus relief in
this case. See In re McAllen Anesthesia Consultants,
P.A., No. 13-17-00584-CV, 2017 WL 6492002, ...