in the Interest of Scotty Morgan Henry and Shelby Leann Henry, Children
Opinion
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
Appellant Danny Morris Henry perfected this appeal from the trial court's order in a suit to modify the parent-child relationship. Pending before this Court is Henry's motion to dismiss the appeal by which he represents that he wishes to withdraw his notice of appeal. The motion is signed by Henry and his counsel and by the attached certificate of conference, counsel indicates that appellee Dawn Lynn Wauer is in agreement.
Without passing on the merits of the appeal, pursuant to Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure we grant the motion and dismiss the appeal. Having dismissed the appeal at Henry's request, no motion for rehearing will be entertained and our mandate will issue forthwith.
Don H. Reavis
Justice
1. Tex. R. App. P. 47.2(a).
nt's motion to dismiss and granting Borchardt a 30-day extension to cure deficiencies in previously filed expert reports and to file an additional expert report from a neurosurgeon.
Covenant contends the trial court abused its discretion in failing to dismiss Borchardt's suit because there was no good faith effort to serve an expert report that satisfied section 74.351(r)(6). Absence of a good faith effort, Covenant argues, required dismissal with prejudice, and the granting of a 30-day extension was a "clear abuse of discretion, warranting issuance of a writ of mandamus." Borchardt responds that a decision to grant a 30-day extension is not subject to review by mandamus.
Mandamus, as distinguished from an ordinary appeal, is an extraordinary remedy available only in limited circumstances where the trial court violates a duty imposed by law or clearly abuses its discretion and when there is no other adequate remedy at law. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The party seeking relief must establish both the absence of an adequate remedy by appeal and the trial court's abuse of discretion. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998); CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996). A court of appeals acts in excess of its writ power when it grants mandamus relief absent these circumstances. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). According to In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998),
in determining whether mandamus should issue, we cannot plumb the subjective reasoning of the trial court. We must focus on the record that was before the court and whether the decision was not only arbitrary but also amounted "to a clear and prejudicial error of law."
A trial court's ruling on a motion to dismiss a health care liability claim is reviewed for clear abuse of discretion. See Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American Transitional Care v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). See also Kendrick v. Garcia, 171 S.W.3d 698, 702-03 (Tex.App.-Eastland 2005, pet. filed) (utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss under section 74.351). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S., 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). There is no abuse, however, simply because a trial court may decide a matter within its discretion differently than an appellate court. Id. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court, thus insulating the trial court's decision from appellate second guessing. Bowie, 79 S.W.3d at 52.
A relator challenging a trial court's ruling as an abuse of discretion labors under a heavy burden. Johnson, 700 S.W.2d at 917. The relator must establish that under the circumstances of the case, the facts and law permit the trial court to make but one decision. Id. This determination is essential because mandamus will not issue to control the action of a lower court in a matter involving the exercise of discretion. Id.
Relying on Palacios, Covenant contends that if a trial court determines that an expert report does not meet the requirements of section 74.351(r)(6), it must dismiss the claim against the defendant with prejudice. Palacios, however, was decided under former article 4590i, section 13.01, (2) which has been codified at section 74.351 of the Texas Civil Practice and Remedies Code. Among other things, Palacios addressed subsections (l) and (r)(6) of former section 13.01, whereas section 74.351(c) provides:
If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.
(Emphasis added). In its petition for writ of mandamus, Covenant concedes Borchardt's expert reports were "deficient" in two respects.
In construing the current statute, our objective is to give effect to legislative intent. Continental Cas. Ins. Co. v. Functional Restoration Associates, 19 S.W.3d 393, 398 (Tex. 2000). In our analysis, we consider the plain and ordinary meaning of the statute's words and examine the entire statute, not only the questioned sections. Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005); Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 865 (Tex. 1999).
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