Motion for Rehearing Denied; Memorandum Opinion of December 10, 2013
Withdrawn; Petition for Writ of Mandamus Denied; and Substitute
Memorandum Opinion filed January 9, 2014.




                                     In The

                     Fourteenth Court of Appeals

                                 NO. 14-13-00877-CV



   IN RE BELL HOT SHOT COMPANY AND MELVIN WAYNE BALL,
                          Relators


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               125th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2010-39439

                 SUBSTITUTE MEMORANDUM OPINION

      We issued an opinion in this case on December 10, 2013, denying a petition
for writ of mandamus. Relators Bell Hot Shot Company and Melvin Wayne Ball
subsequently filed a motion for rehearing. Without changing our previous
disposition, we deny the motion for rehearing, withdraw our earlier opinion, and
issue this substitute opinion.
                                   BACKGROUND

      Tim York, the real party in interest, sued the relators for personal injuries
allegedly sustained in an automobile accident. Since the collision, York has
complained of cognitive issues affecting his memory, concentration, and other
mental functions. He also has reported having multiple symptoms of depression.

      To develop his claim for past and future medical expenses, York submitted
to an evaluation by Doctor John W. Largen, a neuropsychologist. Doctor Largen
performed a series of tests and found that York’s test scores were “not consistent
with organic brain impairment.” Doctor Largen concluded that York “did not
likely sustain organic brain injury” from his recent automobile accident, and that
York’s reported cognitive symptoms “are likely due to other factors such as pain,
fatigue, and generalized distress.”

      The data and report from Doctor Largen’s evaluation were reviewed by
Doctor Francisco I. Perez, a clinical psychologist retained by the relators. Doctor
Perez filed an affidavit in which he agreed with Doctor Largen’s conclusions,
testifying that York demonstrated “no evidence of a cognitive impairment in need
of brain injury rehabilitation.”

      Despite having the opinions from both Doctor Largen and Doctor Perez, the
relators filed a motion to submit York to another psychological evaluation,
asserting that additional “testing is necessary in order to validate or dispute
[York’s] mental allegations.” The trial court denied the motion in a written order
dated August 29, 2013. In their petition for writ of mandamus, the relators ask that
we compel the trial judge to vacate this order and grant their motion for
independent psychological evaluation.

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                                    ANALYSIS

      Mandamus is appropriate when the relator demonstrates that the trial court
clearly abused its discretion and there is no adequate remedy by appeal. See In re
Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). On mandamus review
of factual issues, a trial court will be held to have abused its discretion only if the
relator establishes that the trial court could have reached but one decision, and not
the decision it made. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)
(orig. proceeding). Mandamus review of legal issues is not deferential. A trial court
abuses its discretion if it clearly fails to analyze the law correctly or apply the law
to the facts of the case. See In re Cerberus Capital Mgmt., 164 S.W.3d 379, 382
(Tex. 2005) (orig. proceeding) (per curiam).

      Under Rule 204.1, a party may move for an order compelling another party
to submit to a physical or mental examination by a qualified physician or
psychologist. See Tex. R. Civ. P. 204.1(a)(1). To obtain a court order for a mental
examination pursuant to this rule, the moving party must show good cause and
either (1) that the mental condition of a party is in controversy, or (2) that the
responding party has designated a psychologist as a testifying expert or disclosed a
psychologist’s records for potential use at trial. See Tex. R. Civ. P. 204.1(c). York
does not dispute that his mental condition is in controversy. Therefore, we need
only consider whether good cause was shown for the independent examination.

      Good cause requires a balancing of the competing interests of the party’s
right of privacy and the movant’s right to a fair trial. See Coates v. Whittington,
758 S.W.2d 749, 753 (Tex. 1988) (addressing predecessor to Rule 204). This
requirement may be satisfied only when the movant satisfies the following three
elements. First, the examination must be relevant to issues that are genuinely in
                                          3
controversy in the case. Id. Second, there must be a reasonable nexus between the
condition in controversy and the examination sought. Id. Finally, there must be no
less intrusive means to obtaining the desired information than through a compelled
examination. Id.

      The third element is the main issue in this mandamus proceeding. The
relators contend that there is no valid alternative to a second examination. But,
Doctor Largen’s report already undermines York’s claim that he suffers from
mental injuries, and the relators’ own expert, Doctor Perez, has reached the same
conclusion that there is no evidence of organic brain impairment. The trial court
did not abuse its discretion by determining that the relators have not shown good
cause for an independent psychological evaluation. Compare Sherwood Lane
Assocs. v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990,
orig. proceeding) (evaluation warranted where the “trial court’s action severely
restrict[ed] relators’ opportunity to discover facts that may contradict the opinions
of the minor’s expert witnesses”), with In re Thuesen, No. 14-13-00174-CV, 2013
WL 1461790, at *3 (Tex. App.—Houston [14th Dist.] Apr. 11, 2013, orig.
proceeding) (trial court did not abuse its discretion by denying motion where
relator failed to establish that discovery from the identified medical professional
was insufficient).

                                 CONCLUSION

      Because the relators have not established that the trial court clearly abused
its discretion, we deny the petition for writ of mandamus.


                                                   PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
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