In Re Anthony Howard James, M.D. and Trevin Lee Rube, N.P. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 3, 2024
• Docket: 10-24-00273-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00273-CV

IN RE ANTHONY HOWARD JAMES, M.D. AND TREVIN LEE RUBE, N.P.

Original Proceeding

From the 170th District Court McLennan County, Texas Trial Court No. 2022-3324-4

MEMORANDUM OPINION

Relators filed a petition for writ of mandamus alleging that Respondent, the Hon.

Jim Meyer, Judge of the 170th District Court of McLennan County, abused his discretion

by (1) sua sponte granting the Real Party in Interest leave to designate an expert after the

expert designation deadline in the parties’ Rule 11 agreement had passed, and (2)

denying Relators’ subsequent motion to strike the designated expert. Relators seek

issuance of a writ compelling Respondent to enforce the expert designation deadline set in the parties’ Rule 11 agreement by vacating the order denying the motion to strike and

then striking the expert witness. We deny Relators’ petition.

First, Relators have failed to comply with several of the procedural requirements

for the issuance of a writ of mandamus, including: (1) failure to file a certified or sworn

copy of every document material to their claim for relief; (2) according to their certificate

of service, failure to serve Respondent; and, (3) failure to certify that the person filing the

petition has reviewed the petition and concluded that every factual statement is

supported by competent evidence in the record. See TEX. R. APP. P. 9.5(a), 52.2, 52.3(j),

52.3(k)(1)(A), 52.7(a).

Further, Relators have failed to prove that they are entitled to the relief sought. See

In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).

To be entitled to mandamus relief, the relator must show both that the trial court has

clearly abused its discretion and that the relator has no adequate appellate remedy. In re

Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Both of Relators’

complaints stem from Respondent’s actions at a hearing apparently conducted on March

22, 2024. It was at this hearing that Relators allege that Respondent effectively set aside

the parties’ Rule 11 agreement without good cause by sua sponte permitting the Real Party

in Interest to designate an expert after the parties’ agreed deadline. In their subsequent

motion to strike the expert, and at the hearing on the motion, Relators claimed that Real

Party in Interest’s expert should be stricken because Respondent’s actions at the March

In re James, M.D. Page 2 22, 2024 hearing were an abuse of discretion. However, Relators have not provided to

this Court any record of the March 22, 2024 hearing. See TEX. R. APP. P. 52.7(a). Based on

the record before us, we conclude that Relators have not shown that they are entitled to

the relief requested.

Accordingly, we deny Relators’ petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray dissents) Petition denied Opinion delivered and filed October 3, 2024 Do not publish [OT06]

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