In Re: Franz Emil Schneider, M.D. and Suresh Rajendran, M.D.--Appeal from 127th District Court of Harris County

Petition for Writ of Mandamus Denied and Majority and Concurring Opinions filed May 13, 2004

Petition for Writ of Mandamus Denied and Majority and Concurring Opinions filed May 13, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00169-CV

____________

IN RE FRANZ EMIL SCHNEIDER, M.D. and

SURESH RAJENDRAN, M.D., Relators

_______________________________________________________

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

_______________________________________________________

C O N C U R R I N G O P I N I O N

 Is mandamus relief appropriate to compel a trial judge to dismiss claims with prejudice based on the plaintiff=s failure to provide expert reports that comply with former article 4590i?

There is a conflict among Texas courts of appeals on the correct answer to this question. Some say yes;[1] others say no;[2] some have yet to decide. Although the Texas Supreme Court has not expressly said so, it has sent a signal of sorts that mandamus relief is not available in these types of cases.

As the majority notes, our high court recently denied, without written explanation, ten petitions for writ of mandamus seeking to compel dismissal due to inadequate expert reports.[3] Because the rulings were made without explanation, they are without binding precedential effect, and thus provide no basis for requiring the denial of mandamus relief in any other case raising the same issue.[4] Our high court=s silence on this issue, however, can hardly be considered in a vacuum given Justice Owen=s concurring and dissenting opinion in those cases. See In re Woman=s Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. 346, 346B51, 2004 WL 422583, at *1B5 (Mar. 5, 2004) (Owen, J., concurring and dissenting). Even though the Texas Supreme Court did not state its reasons for denying these ten mandamus petitions,[5] in her opinion Justice Owen, joined by Justices Hecht and Brister, suggests that a majority of the justices may have concluded that the relators in those cases had an adequate remedy by appeal to review the determination of whether the expert=s report represents a good faith effort to comply with the statutory requirements.[6]

Though the Texas Supreme Court did not reveal the rationale for its decisions in these ten cases or make any pronouncements for lower courts to follow, it was not obliged to do so. The Texas Supreme Court is required to explain its decision by written opinion upon consideration by petition for review, but this requirement is not imposed when it denies a petition for mandamus in an original proceeding. Compare Tex. R. App. P. 52.8(d) with Tex. R. App. P. 63. Nonetheless, when the matter the high court is deciding is a recurring and unsettled one, an explanation would eliminate uncertainty, foster uniformity and consistency, and advance the Texas Supreme Court=s paramount function of speaking with clarity on issues important to Texas jurisprudence.

With more than a thousand 4590i cases reportedly still in the pipeline,[7] the intermediate courts are sure to see this issue again. In the very short time since the Texas Supreme Court denied those ten mandamus petitions, this issue already has arisen several times.[8] Because the issue remains an open one, some litigants will continue to spend time and money seeking relief that our high court has signaled C but not said C is unavailable. Intermediate appellate courts will continue to expend their resources attending to and disposing of original proceedings presenting this issue. And, without binding precedent or a clear pronouncement from the Texas Supreme Court, the panels of these intermediate courts most likely will continue to be divided on the issue.[9] Even though these cases will evanesce in the not-too-distant future,[10] judicial economy would be well served by a definitive answer to this question.

Today, this court concludes that the relators have an adequate remedy by appeal in this case and denies mandamus relief on that basis. The result reached is at odds with Justice Owen=s opinion in In re Woman=s Hosp. of Texas, but is consistent with this court=s prior holding[11] and is more likely than not in line with the view of the majority of justices on the Texas Supreme Court. Because our high court seems to have tacitly rejected the views expressed in Justice Owen=s opinion, and because today=s decision is in keeping with the prior decision of this court, I respectfully concur in the court=s denial of the relators= petition for writ of mandamus in this case.

/s/ Kem Thompson Frost

Justice

Petition Denied and Majority and Concurring Opinions filed May 13, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman. (Hedges, C.J., majority.)

[1] See In re Smith, 2004 WL 308664, at *1B3 (Tex. App.CEastland Feb. 19, 2004, orig. proceeding) (mem. op.) (holding mandamus relief lies from trial court=s failure to dismiss when required by former article 4590i); In re Watumull, 127 S.W.3d 351, 354 (Tex. App.CDallas 2004, orig. proceeding) (holding mandamus relief lies and there is no adequate remedy at law if trial court=s fails to dismiss when required by former article 4590i); In re Highland Pines Nursing Home, Ltd., 2004 WL 100403, at *1-4 (Tex. App.CTyler Jan. 21, 2004, orig. proceeding) (mem. op.) (same as Watumull) ; In re Tenet Hosp. Ltd., 116 S.W.3d 821, 827 (Tex. App.CEl Paso 2003, orig. proceeding) (same as Watumull) ; In re Morris, 93 S.W.3d 388, 389B90 (Tex. App.CAmarillo 2002, orig. proceeding) (agreeing that mandamus is proper remedy if trial court fails to dismiss when required by former article 4590i but finding that former article 4590i did not require dismissal under the facts presented); In re Collom & Carney Clinic Assoc., 62 S.W.3d 924, 928B29 (Tex. App.CTexarkana 2001, orig. proceeding) (holding mandamus lies if trial court fails to dismiss when required by former article 4590i).

[2] In re Woman=s Hosp. of Texas, Inc., No. 14-02-00561-CV (Tex. App.CHouston [14th Dist.] July 26, 2002, orig. proceeding) (finding adequate remedy at law) (not designed for publication), mand. denied, 47 Tex. Sup. Ct. J. 318 (March 5, 2004); In re Herrera, No. 05-02-000003-CV, 2002 WL 193307, at *1 (Tex. App.CDallas Feb. 8, 2002, orig. proceeding) (finding adequate remedy at law) (not designed for publication).

[3] See In re Woman=s Hosp. of Texas, Inc., 47 Tex. S. Ct. J. 318 (March 5, 2004); In re Horswell, 47 Tex. S. Ct. J. 318 (March 5, 2004); In re Shapiro, 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Rodriguez, 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Fort Worth Osteopathic Hosp., Inc., 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Barker, 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Southside Fam. Care Assocs., 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Riverside Hosp., Inc., 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Farley, 47 Tex. S. Ct. J. 319 (March 5, 2004); In re Redels, 47 Tex. S. Ct. J. 319 (March 5, 2004).

[4] There does not appear to be any Texas precedent expressly addressing this issue; however cases from other states hold that, when a court issues a decision without an opinion, that decision has no precedential effect as to any legal issues in the case. See Cantrell v. Walker Builders, Inc., 678 So. 2d 169, 171 (Ala Ct. App. 1996) (noting that Alabama Supreme Court=s decision without opinion has no precedential effect); In re Title, Ballot Title and Submission Clause, and Summary for 1999-2000 #235(a), 3 P.3d 1219, 1222 n.1 (Colo. 2000) (stating that prior decision without opinion of Colorado Supreme Court has no precedential effect); Dept. Of Legal Affairs v. Dist. Ct. Of App., 5th Dist, 434 So. 310, 311B12 (Fla. 1983) (holding that an appellate court decision with no written opinion has no precedential value). Furthermore, a dissenting justice on a Texas intermediate court recently asserted that the Texas Supreme Court=s rulings on these ten petitions without opinion does not bind the courts of appeals on the issue of whether mandamus relief is available if the trial court clearly abuses its discretion by failing to dismiss when required by former article 4590i. See In re Hill Regional Hosp., C S.W.3d C, C, 2004 WL 811729, at *1 (Tex. App.CWaco Apr. 14, 2004, orig. proceeding) (Gray, C.J., dissenting).

[5] There are many possible reasons mandamus relief can be denied in any given case. Justice Owen noted several of these reasons in the part of her opinion in which she agreed that denial was appropriate as to six of the mandamus petitions before the Texas Supreme Court. See, e.g., In re Woman=s Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. at 353B55, 2004 WL 422583, at *7B9 (stating that one mandamus petition should be denied because trial court did not abuse its discretion in determining that expert report satisfied statutory requirements and that another petition should be denied because the expert report met the statutory requirements). There is another possible explanation for the Texas Supreme Court=s action. A majority of the court might have concluded that the Texas Legislature=s grant of appellate review to cases filed on or after September 1, 2003, constitutes a legislative decision that no interlocutory relief, by mandamus or otherwise, should be available for cases filed before September 1, 2003. See In re Woman=s Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. 346, 348B51, 2004 WL 422583, at *2B5 (Mar. 5, 2004) (Owen, J., concurring and dissenting). Likewise, though it seems terribly unlikely, it is technically possible that the Texas Supreme Court determined that the issue was not important to the jurisprudence of the state and therefore failed to qualify for mandamus relief. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996) (stating that mandamus petition can be denied if petition does not raise issues important for Texas jurisprudence). It seems more likely that the majority of justices on our high court rejected the dissenters= view that there is no adequate remedy in these types of cases.

[6] See In re Woman=s Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. 346, 346B51, 2004 WL 422583, at *1B5 (Mar. 5, 2004) (Owen, J., concurring and dissenting).

[7] See In re Woman=s Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. at 350, 2004 WL 422583, at *4.

[8] See, e.g., In re Hill Regional Hosp., C S.W.3d C, C, 2004 WL 811729, at *1; In re Wagner, No. 10-04-000076-CV, 2004 WL 811737, at *1 (Tex. App.CWaco Apr. 14, 2004, orig. proceeding) (mem. op.); In re Esparza, No. 13-04-054-CV, 2004 WL 435241, at *1 (Tex. App.CCorpus Christi Mar. 10, 2004, orig. proceeding) (mem. op.); In re Christus Spohn Health Sys., No. 13-04-081-CV, 2004 WL 435217, at *1 (Tex. App.CCorpus Christi Mar. 10, 2004, orig. proceeding) (mem. op.).

[9] See, e.g., In re Hill Regional Hosp., C S.W.3d C, C, 2004 WL 811729, at *1 (Tex. App.CWaco Apr. 14, 2004, orig. proceeding) (Gray, C.J., dissenting).

[10] As to cases filed on or after September 1, 2003, the Texas Legislature has expressly provided for interlocutory appeals from orders denying motions to dismiss for failure to timely file an expert report that represents a good faith effort to comply with the statutory requirements. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 1.03, 2003 Tex. Gen. Laws 847, 849 (current version at Tex. Civ. Prac. & Rem. Code ' 51.014(a)(9)).

[11] See In re Woman=s Hosp. of Texas, Inc., No. 14-02-00561-CV (Tex. App.CHouston [14th Dist.] July 26, 2002, orig. proceeding) (not designed for publication).