In Re: Gerald Allen Perry--Appeal from of County

6-96-028-CV Long Trusts v. Dowd In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00039-CV
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IN RE: GERALD ALLEN PERRY

Original Mandamus Proceeding

 

 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

 

MEMORANDUM OPINION

 

Gerald Allen Perry, Relator, has filed a petition asking this Court to issue a writ of mandamus. In his petition for writ of mandamus, Perry asks us to direct the 202nd Judicial District Court of Texas to rule on his "Motion for Sanctions for Abuse in Resisting Discovery."

Perry states his motion for discovery sanctions had not been ruled on by the time the trial court dismissed his underlying suit. But Perry provides no evidence that (1) he ever moved for an order to compel discovery, (2) he ever urged the trial court to grant a hearing or take action on his motion, or (3) the dismissal of his underlying lawsuit was improper. (1)

 

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The party seeking mandamus relief has the burden of providing the court with a sufficient record to establish his or her right to relief. Id. at 337. Here, Perry's petition does not show a clear abuse of discretion by the trial court.

Furthermore, even when there has been a clear abuse of discretion, mandamus will not issue where there is "a clear and adequate remedy at law, such as a normal appeal." Id. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Id. at 840 (citing Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989)). Perry's petition fails to demonstrate that an ordinary appeal or bill of review is not an adequate remedy.

We conclude Perry is not entitled to the relief sought. See Tex. R. App. P. 52.8(a).

 

The petition for writ of mandamus is denied.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: March 25, 2003

Date Decided: March 26, 2003

1. Perry asserts the dismissal was based on Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(d) and (e) (Vernon Supp. 2003). That section of the Texas Medical Liability and Insurance Improvement Act provides in pertinent part as follows:

 

(d) Not later than . . . the 180th day after the date on which a health care liability claim is filed . . . the claimant shall, for each physician or health care provider against whom a claim is asserted:

 

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physician or health care provider.

(e) If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant . . . ;

 

. . . .

(3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling.

 

Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(d), (e). Perry has not shown the filing of any such report or curriculum vitae; in fact, Perry's lawsuit was dismissed apparently because of a failure to file those required items on a timely basis. While Perry appears to have been seeking to obtain, through discovery, an expert report from another party in this cause, there is no indication that Perry also has sought to obtain a corresponding curriculum vitae. More importantly, there is no provision in the above Act that a claimant need not timely file the required items while he or she uses discovery to obtain them.