Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re University of Texas MD Anderson Cancer Center

Court of Appeals of Texas, First District

July 30, 2019

IN RE THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.

          MEMORANDUM OPINION

          PER CURIAM

         Relator the University of Texas MD Anderson Cancer Center (MDA) seeks a writ of mandamus to compel the trial court to rule on MDA's motion to dismiss with prejudice for failure to serve an adequate expert report.[1] Although a response to the petition was requested, none was filed. We conditionally grant the petition.

          Background

         The underlying case is a health care liability claim brought by real party in interest, James Stewart. Stewart filed his original petition and furnished MDA with a copy of Stewart's expert report. MDA filed an objection under Section 74.351 to the expert report, claiming the expert report was deficient. MDA also filed a motion to dismiss with prejudice Stewart's claims based on a deficient expert report, under Section 74.351, and a claim of sovereign immunity, under Section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(b), 101.106(e). The trial court signed an order, stating that it had considered MDA's objection and motions to dismiss and concluded that the report was statutorily deficient, and it granted Stewart a 30-day extension under Section 74.351(c) to cure the report. The trial court denied MDA's motion to dismiss under Section 101.106.

         MDA appealed the interlocutory order denying its motion to dismiss based on sovereign immunity and, while that appeal was pending, Stewart filed an amended expert report in November 2016. In December 2016, MDA moved to dismiss based on a claim that the amended expert report was deficient. MDA later filed an unopposed motion for a ruling on its motion to dismiss.

          On September 28, 2018, the trial court signed an order asserting that all motions filed during the Section 51.014(b) stay were either void or voidable, and directed the parties to file additional briefing concerning this issue. The parties submitted their briefs, but the trial court has never ruled on MDA's motion to dismiss.

         Analysis

         1. Duty to Rule

         MDA contends that the trial court abused its discretion by not ruling on the motion to dismiss. To be entitled to mandamus relief, a petitioner must show both that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004).

         "A trial judge has a legal, nondiscretionary duty to consider and rule on properly filed motions within a reasonable time." In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding) (citing In re Henry, No. 04-05-00588-CV, 2005 WL 2085242, at *1 (Tex. App.-San Antonio Aug. 31, 2005, orig. proceeding) (per curiam) (mem. op.)). To show an abuse of discretion in refusing to rule, the relator must show that (1) the trial court had a "legal duty to perform a nondiscretionary act;" (2) the relator made a demand for performance; and (3) the trial court refused the request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). If the record shows that the motion was properly filed and brought to the trial court's attention, and a reasonable time has elapsed, an appellate court may grant mandamus relief to compel the trial judge to act. See In re Foster, 503 S.W.3d 606, 607 (Tex. App.-Houston [14th Dist.] 2016, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding).

         Whether a reasonable time for ruling has elapsed is dependent upon the circumstances in the particular case. See In re Salazar, 134 S.W.3d 357, 358 (Tex. App.-Waco 2003, orig. proceeding); Barnes, 832 S.W.2d at 426. We may consider the trial court's actual knowledge of the motion, the trial court's docket and the court's inherent power to control its docket, an overt refusal to rule, and any other judicial or administrative matters. See In re Chavez, 62 S.W.3d 225, 228-29 (Tex. App.-Amarillo 2001, orig. proceeding).

         2. After Disposition of the Interlocutory Appeal, the Trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.