Opinion issued August 29, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00667-CV
                           ———————————
   IN RE CHRISTUS HEALTH GULF COAST (AS AN ENTITY, D/B/A
   CHRISTUS ST. CATHERINE HOSPITAL, AND FORMERLY D/B/A
            CHRISTUS ST. JOSEPH HOSPITAL), Relator



    Original Proceeding on Petition for Writ of Injunction and Prohibition



                         MEMORANDUM OPINION

      Relator, CHRISTUS Health Gulf Coast (as an Entity, d/b/a CHRISTUS St.

Catherine Hospital, and formerly d/b/a CHRISTUS St. Joseph Hospital)

(“Christus”), seeks a writ of injunction/prohibition preventing Linda Carswell,

Jordan Carswell, and Justin Carswell (collectively, “the Carswells”) from obtaining
Jerry Carswell’s heart-tissue samples from SJ Medical Center, LLC (“SJ Medical”)

for the purpose of burying the samples with Jerry.

      We deny the petition for writ of injunction/prohibition.

                           Additional Background Facts

      The factual and procedural history of this case from the date Jerry Carswell

was admitted to CHRISTUS St. Catherine Hospital (“St. Catherine”) on January

19, 2004, until the date the trial court entered its amended final judgment on March

29, 2011, is detailed in our opinion in Christus Health Gulf Coast v. Linda G.

Carswell, appellate cause number 01-11-00292-CV.             The following facts are

relevant solely to this original proceeding.

      After the trial court entered its original final judgment—but before it entered

its amended final judgment—Carswell requested that Dr. Jeffrey Terrel and SJ

Associated Pathologists, L.C. (“SJAP”) return the remains of Jerry Carswell that

they still had in their possession, namely, his heart tissue, for burial. Dr. Terrel and

SJAP rejected this request based on the contention of Christus’s counsel that the

heart tissue could potentially become relevant evidence if the either the trial court

or this Court granted Christus a new trial. In response, Carswell’s counsel sent a

letter to Dr. Terrel and SJAP’s counsel advising him that if the parties could not

come to a “satisfactory arrangement” for the return of Jerry’s remains, Carswell

“[would] seek injunctive relief to prevent any further irreparable injury.”

                                           2
Christus’s counsel responded that Christus objected to the release of Jerry’s heart

tissue “if [the release] will result in the destruction of those samples or would

otherwise render such samples unsuitable for testing/inspection prior to the

conclusion of this litigation.” According to Christus, “the appropriate course of

action would be to defer consideration of Mrs. Carswell’s request until all appeals

are concluded and the potential relevance of Mr. Carswell’s heart tissue samples is

finally determined by the courts.”

      On January 31, 2012, Carswell filed a petition pursuant to Rule of Civil

Procedure 202, seeking discovery from SJ Medical, the current owner of St. Joseph

Hospital (“St. Joseph”), concerning the whereabouts of Jerry’s remains. Carswell

stated that SJ Medical “is a third party against whom suit is not contemplated at

this time, and from whom [she] seeks discovery.” Carswell asserted that she was

the lawful owner of any autopsy specimens and that no other person or entity has

the legal right to retain any of the specimens.       Carswell requested an oral

deposition of an SJ Medical representative to discover “the state of knowledge of

SJ [Medical] concerning possession, custody or control of the remains of Jerry

Carswell, deceased” and “the manner of preservation and safe-keeping of the

pathological specimens and/or remains, including the heart, of Jerry Carswell,

deceased.”




                                        3
      SJ Medical opposed the Rule 202 petition, arguing that there was no dispute

that Jerry’s retained tissues were located on the premises of St. Joseph. SJ Medical

expressed its concern that Carswell’s Rule 202 petition “serve[d] no other purpose

than to establish facts to support a subsequent lawsuit against St. Joseph” and it

requested that the trial court deny Carswell’s petition.

      Christus’s counsel subsequently sent a letter to SJ Medical’s counsel “to

make clear that St. Catherine and Dr. [Terrel] object to the release of Mr.

Carswell’s heart tissue samples to [Carswell’s] counsel because it is potentially

violative of existing court orders” and because the release might result in “the

destruction of those samples or otherwise render[] them unsuitable for

testing/inspection, [which] would potentially constitute spoliation of evidence.”

Christus’s counsel reiterated Christus’s position that the appropriate course of

action was to maintain the tissues at St. Joseph until all appeals are concluded; and

he requested that, if SJ Medical decides to release the tissues to Carswell, it let him

know in advance so Christus could take “appropriate action.”

      On June 25, 2012, the trial court held a hearing on the Rule 202 petition.

Carswell’s counsel stated that he, Christus’s counsel, and Dr. Terrel and SJAP’s

counsel had reached “an understanding” after the previous trial that they would

“move forward” in returning Jerry’s remains to Carswell. To this end, Carswell

made preparations to exhume Jerry’s body and bury his remains. In response to

                                          4
counsel for SJ Medical stipulating on the record that the tissues were located at St.

Joseph’s premises, Carswell’s counsel stated that he would withdraw the Rule 202

petition and send a demand letter to SJ Medical with an offer of settlement,

offering to release SJ Medical from any liability if it turned over the tissues. He

stated that if SJ Medical rejected this offer, he would sue for conversion.

      On July 5, 2012, Carswell’s counsel sent a letter to SJ Medical’s counsel

stating the following:

      Despite repeated demands for return of her husband’s remains, we
      have been ‘stonewalled’ by CHRISTUS, who refuses to recognize
      Mrs. Carswell’s right to receive her husband’s remains in derogation
      of law and the trial judgment vitiating the consent for autopsy. Your
      client, SJ, is in the middle of this dispute as the possessor of Jerry
      Carswell’s remains. However, as possessor, you have so far refused
      to return the heart specimens to Mrs. Carswell despite repeated
      demands. You instead follow the instructions from CHRISTUS not to
      turn over the heart specimens to Mrs. Carswell when there is no
      authority for you to do so. I have informed you that I believe your
      client’s refusal to turn over the heart specimens to Mrs. Carswell
      constitute[s] conversion, and may give rise to other cognizable causes
      of action.
      This letter is being written to give your client one last opportunity to
      do the right thing—release to Linda Carswell the heart specimens of
      her deceased husband without further delay. If you do so within
      seven (7) days from the date of this letter, my client agrees to release
      SJ from any and all claims, causes of action, etc. in connection with
      its possession of Jerry Carswell’s remains. . . .
      In the event we [cannot] reach a mutually satisfactory settlement of
      this dispute in the time frame stated, I will have no recourse but to file
      suit on behalf of Linda Carswell against SJ, as the possessor of her
      deceased husband’s remains. The suit will seek damages, declaratory
      relief, equitable relief, costs and attorney’s fees.

                                          5
      On July 17, 2012, Christus’s counsel responded, acknowledged Carswell’s

position that the heart tissue did not constitute potentially relevant evidence, and

proposed the following stipulations to resolve the issue:

      1.     The heart tissue, if inspected would reveal a discolored portion
             of tissue as described by Dr. Terrel.
      2.     The heart tissue could be tested, and any test performed on the
             heart tissue would be as reliable as if it were performed during
             the autopsy.
      3.     If the heart tissue were tested, those tests would reliably
             confirm that Mr. Carswell’s death was caused solely by a heart
             attack and sudden cardiac arrhythmia, unrelated to the
             administration of any pain medications.
      4.     If the heart tissue were tested, those tests would reliably
             confirm that Mr. Carswell’s death was not caused by
             respiratory distress or depression.
      5.     The retained portion of the heart is not the entire heart, but only
             a portion of heart as described by Dr. Terrel in his trial
             testimony.

      The trial court took no action on Carswell’s Rule 202 petition. Christus then

filed this petition for writ of injunction/prohibition in this Court.

                   Propriety of Writ of Injunction/Prohibition

      We have the power to issue a writ of mandamus “and all other writs

necessary to enforce the jurisdiction of the court.”         TEX. GOV’T CODE ANN.

§ 22.221(a) (Vernon 2004); see also TEX. R. APP. P. 52.1 (listing writ of

prohibition and writ of injunction as examples of original appellate proceedings

that may be heard in court of appeals).

                                            6
      A writ of prohibition directs a lower court to refrain from doing a particular

act. See In re Richardson, 252 S.W.3d 822, 830 (Tex. App.—Texarkana 2008,

orig. proceeding) (citing Tilton v. Marshall, 925 S.W.2d 672, 676 n.4 (Tex. 1996)).

This writ enables a superior court to protect and enforce its jurisdiction and

judgments, and this writ is “typically used to protect the subject matter of an appeal

or to prohibit an unlawful interference with the enforcement of a superior court’s

orders and judgments.” Id. at 831 (quoting Holloway v. Fifth Court of Appeals,

767 S.W.2d 680, 683 (Tex. 1989)). Similarly, the purpose of a writ of injunction is

to enforce or protect our jurisdiction. In re Olson, 252 S.W.3d 747, 747 (Tex.

App.—Houston [14th Dist.] 2008, orig. proceeding) (per curiam); In re Sheshtawy,

161 S.W.3d 1, 1 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (per

curiam). We may grant injunctive relief “if a failure to do so would result in the

appeal becoming moot and the subject matter being destroyed.” Becker v. Becker,

639 S.W.2d 23, 24 (Tex. App.—Houston [1st Dist.] 1982, no writ). We do not

have jurisdiction to issue a writ of injunction “merely for the purpose of preserving

the status quo or to prevent loss or damage to one of the parties during the appeal.”

Id.; see also In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.—Tyler 2005, orig.

proceeding) (stating same).

      In the related case of Christus Health Gulf Coast v. Linda G. Carswell,

appellate cause number 01-11-00292-CV, we determined that the trial court

                                          7
appropriately rendered judgment against Christus on Carswell’s post-mortem fraud

claim. Although we modified the award of prejudgment interest and vacated the

imposition of $250,000 in monetary sanctions against Christus, we affirmed the

merits of the judgment against Christus. In doing so, we noted that the trial court’s

exclusion of heart-related evidence pursuant to its sanctions order did not affect

our conclusion that sufficient evidence supported the jury’s verdict on Carswell’s

post-mortem fraud claim, and, thus, Christus failed to establish that the non-

monetary sanctions imposed against it caused it any harm. Carswell did not appeal

the adverse jury finding on her “pre-mortem” health care liability claims, the

claims to which the heart tissues were directly relevant.         It is therefore not

necessary to issue either a writ of injunction or prohibition to enforce or protect our

jurisdiction over the appeal or to prevent an appeal pending before us from

becoming moot.

                                     Conclusion

      We deny the petition for writ of injunction/prohibition.           We lift the

temporary stay entered in this case on July 25, 2012.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Brown.
                                          8
