in Re: McAllen Medical Center, Inc., D/B/A McAllen Medical Center, and Universal Health Services, Inc.

                                           NUMBER 13-05-441-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

                           IN RE McALLEN MEDICAL CENTER, INC.

                                D/B/A McALLEN MEDICAL CENTER

                         AND UNIVERSAL HEALTH SERVICES, INC. 

____________________________________________________________

                                  On Petition for Writ of Mandamus ____________________________________________________________ 

                                         MEMORANDUM OPINION

                     Before Justices Hinojosa, Yañez, and Rodriguez

                                 Memorandum Opinion Per Curiam

Relators, McAllen Medical Center, Inc. d/b/a McAllen Medical Center and Universal Health Services, Inc., filed a petition for writ of mandamus with this Court on July 12, 2005. Through their petition, relators ask this Court to direct the trial court to vacate its order denying relators= motion to dismiss all of the claims of the real parties in interest, Ariceli Garza, et al., for failing to comply with the statutory duty to provide adequate expert reports in a medical malpractice case.  On July 14, 2005, the Court requested that real parties in interest file a response, and their response was filed with this Court on August 29, 2005.     To be entitled to mandamus relief, relators must show that the trial court committed a clear abuse of discretion and that they have no adequate remedy by appeal.  In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005);  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135‑36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.  Walker, 827 S.W.2d at 839, 840.  Determining whether a party has an adequate remedy by appeal requires a Acareful balance of jurisprudential considerations@ that Aimplicate both public and private interests.@  In re Prudential, 148 S.W.3d at 136. When the benefits of mandamus review outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.  Id.

The court has considered relators= petition for writ of mandamus and the response filed by real parties in interest.^[1]  We conclude that relators have failed to show either that the trial court clearly abused its discretion or that relators have no adequate remedy by appeal.  See In re Woman's Hospital of Texas, Inc., 141 S.W.3d 144, 152‑53 (Tex. 2004) (Owen, J., concurring in part and dissenting in part to denial of petitions for writ of mandamus); In re Schneider, 134 S.W.3d 866, 869‑70 (Tex. App.BHouston [14th Dist.] 2004, orig. proceeding); see also In re Christus Spohn Health Sys. Corp., No. 13-04-081-CV, 2004 Tex. App. LEXIS 2232, *2‑*3 (Tex. App.BCorpus Christi Mar. 10, 2004, orig proceeding) (memorandum opinion); In re Esparza, No. 13-04-054-CV, 2004 Tex. App. LEXIS 2233, *4 (Tex. App.BCorpus Christi Mar. 10, 2004, orig. proceeding) (memorandum opinion).  But see In re Samonte, 163 S.W.3d 229, 238 (Tex. App.CEl Paso 2005, orig. proceeding) (a post‑trial appeal cannot remedy the deprivation of a statutory due process right to pretrial dismissal with prejudice). 

Accordingly, the petition for writ of mandamus is DENIED.  See Tex. R. App. P. 52.8(a).  

PER CURIAM

Memorandum opinion delivered and filed

this 5^th day of October, 2005.

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^[1] Relators have moved to strike real parties= response as sanctions under Texas Rule of Appellate Procedure 52.11.  See Tex. R. App. P. 52.11 (allowing sanctions in original proceedings).  We have carefully considered relators= motion and the motion is denied.  We would note that we have, however, based our decision herein on the materials that were before the trial court at the time it acted.  See, e.g., University of Tex. v. Morris, 162 Tex. 60, 344 S.W.2d 426, 429 (Tex. 1961); Methodist Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.BCorpus Christi 1998, no pet.).