in Re: Clinica Santa Maria ( 2007 )

NUMBER 13-06-00256-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

IN RE CLINICA SANTA MARIA

____________________________________________________________

On Petition for Writ of Mandamus ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides Per Curiam Memorandum Opinion ⁽¹⁾

Relator, Clinica Santa Maria, filed a petition for writ of mandamus in the above cause on May 18, 2006, arguing that the trial court abused its discretion in denying its motion for sanctions and dismissal under the former Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, repealed by Act of June 2, 2003, 78th Leg., R.S., ch.204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.001-.507 (Vernon 2005)). The Court requested that real parties in interest file a response to relator's petition for writ of mandamus on or before July 3, 2006, and said response was timely filed on June 30, 2006.

The Court, having examined and fully considered the petition for writ of mandamus and response thereto, is of the opinion that relator has not shown itself entitled to the relief sought.

First, considering the particular factual and legal background of this proceeding, we conclude that the relator has an adequate remedy by appeal. ⁽²⁾ See In re Benavides, 180 S.W.3d 211, 212 (Tex. App.-San Antonio 2005, orig. proceeding); In re Schneider, 134 S.W.3d 866, 869-70 (Tex. App.-Houston [14th Dist.] 2004, orig. proceeding); see also In re McAllen Med. Ctr., Inc., No. 13-05-00441-CV, 2005 Tex. App. LEXIS 8235, *2-*3 (Tex. App.-Corpus Christi 2005, orig. proceeding [pet. granted]) (per curiam) (mem. op.); In re Christus Spohn Health Sys. Corp., No. 13-04-00081-CV, 2004 Tex. App. LEXIS 2232, *2-3 (Tex. App.-Corpus Christi Mar. 10, 2004, orig. proceeding) (per curiam) (mem. op.); In re Esparza, No. 13-04-00054-CV, 2004 Tex. App. LEXIS 2233, *4 (Tex. App.-Corpus Christi Mar. 10, 2004, orig. proceeding) (per curiam) (mem. op.). But see In re Covenant Med. Ctr., 167 S.W.3d 919, 920 (Tex. App.-Amarillo 2005, orig. proceeding); In re Samonte, 163 S.W.3d 229, 238 (Tex. App.-El Paso 2005, orig. proceeding); In re Zimmerman, 148 S.W.3d 214, 216 (Tex. App.-Texarkana 2004, orig. proceeding); In re Collom & Carney Clinic Ass'n, 62 S.W.3d 924, 928-30 (Tex. App.-Texarkana 2001, orig. proceeding); cf. Watkins v. Jones, 192 S.W.3d 672, 674 (Tex. App.-Corpus Christi 2006, no pet.) (allowing mandamus relief for the erroneous granting of a thirty day extension on grounds that an erroneous grant of a grace period denies a party an adequate remedy by law, thus mandamus is an appropriate means to remedy that error).

Second, the relator's petition for writ of mandamus is not timely. The order denying the motion for sanctions and dismissal was signed on March 4, 2004; however, this original proceeding was not filed until May 28, 2006, more than two years later. The parties have substantially completed discovery in this matter, and trial is set for May 2007. We would conclude that relator has not shown due diligence in pursuing relief. In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999).

Third, the parties dispute whether or not the expert's report at issue included the expert's curriculum vitae. If there are factual disputes, relief by mandamus is not appropriate. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). Based on the foregoing, we DENY the petition for writ of mandamus. See Tex. R. App. P. 52.8(a). Furthermore, all pending motions are denied as moot.

PER CURIAM

Memorandum Opinion delivered and filed

this 6^th day of March, 2007.

1. See Tex. R. App. P. 52.8(d) ("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).

2. The Texas Supreme Court denied petitions for mandamus in a series of cases discussed in a 2004 concurring and dissenting opinion. See generally In re Woman's Hosp. of Tex., Inc., 141 S.W.3d 144 (Tex. 2004) (Owen, J., concurring and dissenting). After the supreme court's denial of these mandamus petitions, a series of intermediate appellate court denials of mandamus relief followed, including opinions from this Court. Pending a definitive ruling from the high court, we will consider the adequacy of a remedy by appeal on a case-by-case basis, giving proper deference to prior opinions from this Court. We would note that this issue has a limited impact on future cases because section 51.014 of the Texas Civil Practice and Remedies Code provides for an interlocutory appeal from a denial of the relief sought by a motion under section 74.351 for actions filed on or after September 1, 2003. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2006).