in Re: Frank Enriquez, Individually, and as Personal Representative of the Estate of Christine Ramirez, and for All Wrongful Death Beneficiaries

Court of Appeals of Texas·Decided February 7, 2023·No. 08-23-00008-CV·Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

IN RE: FRANK ENRIQUEZ, § No. 08-23-00008-CV INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE § AN ORIGINAL PROCEEDING OF CHRISTINE RAMIREZ, AND FOR ALL WRONGFUL DEATH § IN MANDAMUS BENEFICIARIES, § Relator. §

§ ORDER

Relator filed a petition for a writ of mandamus on January 18, 2023, requesting that this

Court instruct the trial court to allow him leave to amend his petition in a medical malpractice suit.

He also asked that the Court issue a stay of the then-pending January 24 trial date. The trial court

sua sponte cancelled the January 24 trial date because of the mandamus action, and this Court

issued an order staying all proceedings in the trial court pending further notice from the Court.

On January 26, 2023, the Real Party in Interest filed a motion to dismiss, arguing this Court

lacks jurisdiction because the January 24 trial date cancelation provided Relator the ability to

amend his pleading without leave of court. The Real Party in Interest argues that the Relator has

the relief he seeks from the Court, consequently, the petition for writ of mandamus is now moot.

In the record remains, however, a trial court order dated January 13, 2023, denying Relator

leave to file his fourth amended petition. Accordingly, this Court cannot dismiss the mandamus

1 action. Instead, we abate the mandamus action for thirty days and remand the case to the trial court

to determine whether its January 13, 2023 order denying Relator leave to amend his petition is still

applicable given that a new trial setting is pending. Further, the trial court shall forward its

determination to the District Clerk of El Paso County, on or before March 9, 2023. The District

Clerk shall prepare and forward a supplemental clerk’s record containing the trial court’s

determination and forward the same to this Court on or before March 19, 2023. Further, should

the trial court conduct a hearing on this matter in connection with making its determination, the

transcription of the hearing shall be prepared, certified, and filed with the Court on or before March

19, 2023.

IT IS SO ORDERED this 7th day of February, 2023.

PER CURIAM

Before Rodriguez, C.J., Palafox and Soto, JJ.

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