                                    NUMBER 13-10-00295-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                         IN RE BEN HAROLD MOORE, JR., M.D.


                             On Petition for Writ of Mandamus
                             and Motion for Emergency Stay.


                                    MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Benavides and Vela
                    Memorandum Opinion Per Curiam1

        Relator, Ben Harold Moore, Jr., M.D., filed a petition for writ of mandamus and a

motion for emergency stay in the above cause on May 20, 2010. The petition for writ of

mandamus seeks to set aside the ruling entered on May 4, 2010, by the Honorable Romeo

Flores, assigned judge to the 105th District Court of Kleberg County, that “all prior lawsuits

filed against [relator] are admissible as evidence in the trial of this matter.” The underlying

proceeding is a medical malpractice case filed against relator by Leticia Suarez, San

Juanita Suarez, Jesus S. Suarez, Jr., and Francisca Suarez, individually and as

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          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
representatives of the estate of Jesus Santos Suarez, Sr., deceased. According to the

motion for emergency stay, trial in this matter is ongoing and will reconvene on Monday,

May 24, 2010.

       Mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257,

259 (Tex. 2008) (orig. proceeding). In order to obtain mandamus relief, the relator must

show both that the trial court clearly abused its discretion and that the relator has no

adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462

(Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision

so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it

clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

       Historically, mandamus was treated as an extraordinary writ that would issue “only

in situations involving manifest and urgent necessity and not for grievances that may be

addressed by other remedies.” Walker, 827 S.W.2d at 840. Now, in some extraordinary

cases, whether a clear abuse of discretion can be adequately remedied by appeal depends

on a careful analysis of the costs and benefits of interlocutory review. In re McAllen Med.

Ctr., Inc., 275 S.W.3d at 462. “An appellate remedy is ‘adequate’ when any benefits to

mandamus review are outweighed by the detriments.” In re Prudential Ins. Co. of Am., 148

S.W.3d at 136. According to the Texas Supreme Court:

       Mandamus review of significant rulings in exceptional cases may be
       essential to preserve important substantive and procedural rights from
       impairment or loss, allow the appellate courts to give needed and helpful
       direction to the law that would otherwise prove elusive in appeals from final

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       judgments, and spare private parties and the public the time and money
       utterly wasted enduring eventual reversal of improperly conducted
       proceedings.

Id. at 136. Determining whether an appellate remedy is adequate, thus precluding

mandamus relief, depends “heavily on the circumstances presented and is better guided

by general principles than by simple rules.” Id. at 137.

       The Court, applying the foregoing principles to the case at hand, and having

examined and fully considered the petition for writ of mandamus and the motion for

emergency relief, is of the opinion that relator has not shown himself entitled to the relief

sought. Id.; cf. Joachim v. Chambers, 815 S.W.2d 234, 244 (Tex. 1991) (orig. proceeding)

(Gonzalez, J., dissenting) (objecting to the majority’s granting of mandamus relief and

stating that: “Surely, tomorrow we will be asked to issue mandamus regarding . . . the

admission or exclusion of evidence at trial. Is there no end?”). In this regard, we note that

the petition for writ of mandamus does not address the adequacy of relator’s remedy by

appeal and contains no assertions, arguments, or authorities concerning the adequacy of

appeal under the circumstances herein. See In re Christus Health, 276 S.W.3d 708, 710

(Tex. App.–Houston [1st Dist.] 2008, orig. proceeding). Accordingly, the petition for writ

of mandamus and motion for emergency stay are DENIED. See TEX . R. APP. P. 52.8(a).


                                                         PER CURIAM


Delivered and filed the
20th day of May, 2010.




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