in Re: Juan Andres Cuellar, Oldcastle Materials Texas, Inc, F/K/A APAC-Texas, Inc., Oldcastle Payroll Inc., F/K/A APAC, Inc. and APAC Holdings, Inc.

• Court: Court of Appeals of Texas
• Decided: January 31, 2022
• Docket: 05-21-00683-CV
• Status: Published

Opinion

DENY and Opinion Filed January 31, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00683-CV

IN RE: JUAN ANDRES CUELLAR, OLDCASTLE MATERIALS TEXAS, INC, F/K/A APAC-TEXAS, INC., OLDCASTLE PAYROLL INC., F/K/A APAC, INC. AND APAC HOLDINGS, INC., Relators

Original proceeding from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-15831

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Goldstein Opinion by Justice Goldstein Relators filed a petition for writ of mandamus on August 10, 2021,

challenging the trial court’s oral ruling of July 26, 2021, excluding relator’s

testifying expert, Greg Money and precluding other testifying experts from relying

on Money’s analysis.1

Entitlement to mandamus relief requires relator to show that the trial court

clearly abused its discretion and that he lacks an adequate appellate remedy. In re

1 We note, without comment, the parties’ conflation and obfuscation of applicable procedural rules and legal theories in an effort to address the consequences of In Re Allstate Indem. Co., 622 S.W.3d 870 (Tex. 2021) (orig. proceeding). The concurring opinion endeavors to provide clarity and guidance. Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

“Mandamus actions based upon a court’s oral pronouncements are generally

discouraged.” In re Rhew, No. 05-16-00411-CV, 2016 WL 1551724, at *1 (Tex.

App.—Dallas Apr. 15, 2016, no pet.) (citing In re Bledsoe, 41 S.W.3d 807, 811 (Tex.

App.—Fort Worth 2001, orig. proceeding)). Nevertheless, an oral order by a trial

judge may be considered on mandamus only if it is adequately shown by the trial

court record. Id. (citing In re Winters, No. 05–08–01419–CV, 2008 WL 4816379, at

*1 (Tex. App.—Dallas Nov. 6, 2008, orig. proceeding)). “An oral ruling is subject

to mandamus review only if it is clear, specific, and enforceable.” Id. (citing Bledsoe,

41 S.W.3d at 811; see also In re Kelton, No. 12–11–00355–CR, 2011 WL 5595219,

at *1 (Tex. App.—Tyler Nov. 17, 2011, orig. proceeding) (mem. op.) (oral ruling is

not subject to mandamus review unless the ruling is clear, specific, enforceable, and

adequately shown by the record)). “An appellate court can determine whether an

oral order meets these criteria by reviewing the reporter’s record from the hearing.”

Here, the reporter’s record of July 26, 2021, reflects the trial court’s oral order.

Under these circumstances, we may appropriately review the trial court’s ruling. See

id.

We have reviewed relator’s petition, attached appendices, and the reporter’s

record transcribing the June 28, 2021, July 2, 2021, and July 26, 2021, hearings on

real party in interest’s motion to exclude/strike expert witnesses regarding medical

expenses. We conclude relator has failed to demonstrate an entitlement to

–2– mandamus relief. Accordingly, we deny the petition for writ of mandamus. See

TEX. R. APP. P. 52.8(a).

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Concurring, J. Pedersen

210683F.P05

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