In today’s order list, the Court decided three cases and also dismissed as moot the pending Clear Channel mandamus petition.

Three merits decisions

Two of them are medical-malpractice expert cases citing the Court’s recent In re McAllen Medical Center — to reach opposite conclusions.

  • In re Roberts, No. 05-0362.. In this case, the trial court granted the plaintiffs a 30-day grace period to amend their expert reports. The defendants objected and sought mandamus relief — which the court of appeals granted. Today, with this per curiam opinion, (( Justice Johnson did not participate. )) the Texas Supreme Court granted mandamus relief against the court of appeals, ruling that “[b]ecause a 30-day extension — even if unjustified — does not substantially prolong litigation or allow for extensive discovery, we hold the court of appeals erred in issuing mandamus relief.”

    In distinguishing In re McAllen Medical Center, the Court noted that it was weighing the possible slight harms from a 30-day extension against the much longer delays that would be involved if it permitted appellate scrutiny of every 30-day extension a trial court might choose to grant under this statute. “[T]he harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years. … By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.”

  • In re Methodist Healthcare System of San Antonio, Ltd., No. 05-0575. The hospital objected to the plaintiff’s medical-malpractice expert report, and the trial court refused to dismiss. When the hospital sought mandamus from the court of appeals, the court of appeals denied on the ground that the hospital had “an adequate remedy by appeal.” In this per curiam opinion, the Texas Supreme Court granted the writ of mandamus “for the reasons stated in In re McAllen Medical Center.” Rather than reach the merits of the hospital’s arguments, the Court “instruct[ed] the court of appeals to withdraw its previous opinion and reconsider in light of our opinion in McAllen.”

  • FKM Partnership, Ltd. v. Board of Regents of the University of Houston, No. 05-0661. Justice Johnson wrote for the Court. He was joined by all of the Justices other than Justice Willett, who wrote a separate opinion concurring in part and dissenting in part.

    I’ll write more about FKM in a separate post.

Putting the Clear Channel case to rest

  • In re Citigroup Global Markets, Inc., No. 08-0289. The Court lifted its abatement of the In re Citigroup Global Markets, Inc. case to issue an order of dismissal.

Two new petitions granted

The Court added these two cases to its argument schedule for the fall:

  • Hernandez v. Ebrom, No. 07-0240, from the Thirteenth Court of Appeals. This interlocutory appeal challenging an inadequate expert report has a twist — while on appeal, the underlying cause was resolved by an agreed order of nonsuit. The court of appeals held that it had been deprived of subject-matter jurisdiction over the interlocutory appeal.

  • Smith v. Patrick W.Y. Tam Trust, No. 07-0970, from the Fifth Court of Appeals. On a commercial lease, the plaintiff sued for $215,000 and received a jury verdict for $65,000. In addition, the trial court awarded attorney’s fees of $47,000.

    The petition argues that this amount was “unconscionable” and unreasonable because it would be seventy percent of the amount of the verdict. The petition suggests that the court of appeals should have expressly evaluated the reasonableness of the award under the framework set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997).

    It’s a simple argument — and the petition for review doesn’t belabor it, taking up only five pages from the Statement of Facts through the Prayer.