In Re Anthony Howard James, M.D. and Trevin Lee Rube, N.P. v. the State of Texas ( 2024 )

IN THE
TENTH COURT OF APPEALS
No. 10-24-00273-CV
IN RE ANTHONY HOWARD JAMES, M.D.
AND TREVIN LEE RUBE, N.P.
Original Proceeding
From the 170th District Court
McLennan County, Texas
Trial Court No. 2022-3324-4
MEMORANDUM OPINION
Relators filed a petition for writ of mandamus alleging that Respondent, the Hon.
Jim Meyer, Judge of the 170th District Court of McLennan County, abused his discretion
by (1) sua sponte granting the Real Party in Interest leave to designate an expert after the
expert designation deadline in the parties’ Rule 11 agreement had passed, and (2)
denying Relators’ subsequent motion to strike the designated expert. Relators seek
issuance of a writ compelling Respondent to enforce the expert designation deadline set
in the parties’ Rule 11 agreement by vacating the order denying the motion to strike and
then striking the expert witness. We deny Relators’ petition.
First, Relators have failed to comply with several of the procedural requirements
for the issuance of a writ of mandamus, including: (1) failure to file a certified or sworn
copy of every document material to their claim for relief; (2) according to their certificate
of service, failure to serve Respondent; and, (3) failure to certify that the person filing the
petition has reviewed the petition and concluded that every factual statement is
supported by competent evidence in the record. See TEX. R. APP. P. 9.5(a), 52.2, 52.3(j),
52.3(k)(1)(A), 52.7(a).
Further, Relators have failed to prove that they are entitled to the relief sought. See
In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).
To be entitled to mandamus relief, the relator must show both that the trial court has
clearly abused its discretion and that the relator has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Both of Relators’
complaints stem from Respondent’s actions at a hearing apparently conducted on March
22, 2024. It was at this hearing that Relators allege that Respondent effectively set aside
the parties’ Rule 11 agreement without good cause by sua sponte permitting the Real Party
in Interest to designate an expert after the parties’ agreed deadline. In their subsequent
motion to strike the expert, and at the hearing on the motion, Relators claimed that Real
Party in Interest’s expert should be stricken because Respondent’s actions at the March
In re James, M.D. Page 2
22, 2024 hearing were an abuse of discretion. However, Relators have not provided to
this Court any record of the March 22, 2024 hearing. See TEX. R. APP. P. 52.7(a). Based on
the record before us, we conclude that Relators have not shown that they are entitled to
the relief requested.
Accordingly, we deny Relators’ petition for writ of mandamus. See TEX. R. APP. P.
52.8(a).
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissents)
Petition denied
Opinion delivered and filed October 3, 2024
Do not publish
[OT06]
In re James, M.D. Page 3