in Re: Richard K. Archer, Sr.
05-15-00020-CV
| Tex. App. | Jan 9, 2015Background
- Relator Richard K. Archer, Sr., a retired medical doctor, was named in a vehicular-accident suit involving alleged cow incursions.
- Real party in interest amended the petition to claim Archer owned the cattle, was responsible for fencing, and was negligent in maintaining fencing.
- There were no allegations that Archer provided any health care services to the real party in interest, so health-care liability concerns under the TMLA were arguably not triggered.
- A Texas Civil Practice and Remedies Code Chapter 74 motion to dismiss was filed on October 1, 2014.
- Relator sent a proposed order of dismissal two days after filing, but did not request a hearing or a ruling without a hearing in that correspondence.
- Relator later appeared for a pretrial conference on January 5, 2015, purportedly to urge the motion and a continuance, but there is no record of proper notice or a hearing setting per applicable rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus relief is proper to compel ruling on a Chapter 74 motion | Archer seeks mandamus to force ruling on the dismissal motion | Trial court did not abuse discretion; movant failed to properly request a hearing | Denied |
| Whether failure to set a hearing or provide notice bars mandamus relief | Relator asserts lack of notice for hearing impeded ruling | Duty to set hearing rests with movant; court not obligated to rule without hearing | Denied mandamus relief for lack of proper notice/hearing procedures |
| Whether the action falls within health-care liability claims under TMLA | No health-care service alleged; potential misclassification | No basis to treat as TMLA health-care claim | Not addressed as mandamus relief denied on other grounds |
Key Cases Cited
- In re Amir-Sharif, 357 S.W.3d 180 (Tex. App.—Dallas 2012) (mandamus standards; court discretion on timely ruling)
- In re Davidson, 153 S.W.3d 490 (Tex. App.—Amarillo 2004) (docketing and hearing duties; trial court not required to act without hearing)
- Metzger v. Sebek, 892 S.W.2d 20 (Tex. App.—Houston [1st Dist.] 1994) (duty to set hearing rests with movant; no abuse where not requested)
- Calaway v. Gardner, 525 S.W.2d 262 (Tex. Civ. App.—Houston [14th Dist.] 1975) (no hearing request; no abuse by trial court in lack of setting)
- Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268 (Tex. App.—San Antonio 1997) (trial court abused discretion in discovery-related mandamus when movant ensured hearing requests)