in Re H.E.B. Grocery Company, L.P. , 490 S.W.3d 96 ( 2015 )

NUMBER 13-15-00254-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE H.E.B. GROCERY COMPANY, L.P.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam1
On June 3, 2015, H.E.B. Grocery Company, L.P. (“H.E.B.”) filed a petition for writ
of mandamus and an emergency motion to stay. Through this original proceeding, H.E.B.
contends that the trial court abused its discretion by denying H.E.B.’s motion requesting
a physical examination of the real party in interest, Daniel Rodriguez. See generally TEX.
R. CIV. P. 204.1 (delineating the requirements for motions and orders pertaining to
physical or mental examinations). Through its emergency motion, H.E.B. sought to stay
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
all trial court proceedings, including discovery, hearings, and the current trial setting of
June 15, 2015, pending resolution of this cause. By order issued the following day, this
Court requested that Rodriguez file a response to the petition for writ of mandamus by
June 9, 2015, and deferred ruling on the emergency motion to stay pending receipt and
review of Rodriguez’s response to the petition. Rodriguez’s response to the petition for
writ of mandamus is now before the Court. As stated herein, we deny the petition for writ
of mandamus.
I. STANDARD FOR MANDAMUS RELIEF
To be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). The relator has the burden of establishing both prerequisites to mandamus
relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003)
(orig. proceeding) (per curiam).
A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary
and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails
to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The
adequacy of an appellate remedy must be determined by balancing the benefits of
mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262
(Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances,
it must be guided by the analysis of principles rather than the application of simple rules
that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.
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2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review
and consider whether mandamus will preserve important substantive and procedural
rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
A discovery order that compels production beyond the rules of procedure is an
abuse of discretion for which mandamus is the proper remedy. In re Nat’l Lloyds Ins. Co.,
449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam); In re Deere & Co., 299
S.W.3d 819, 820 (Tex. 2009) (per curiam); In re Weekley Homes, L.P., 295 S.W.3d 309,
322 (Tex. 2009) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.
1998) (orig. proceeding). Specifically, for example, a party will not have an adequate
remedy by appeal: (1) when the appellate court would not be able to cure the trial court’s
discovery error; (2) where the party’s ability to present a viable claim or defense at trial is
vitiated or severely compromised by the trial court’s discovery error; and (3) where the
trial court disallows discovery and the missing discovery cannot be made a part of the
appellate record or the trial court, after proper request, refuses to make it part of the
record. See In re Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007) (orig.
proceeding); In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding); In re Ten Hagen
Excavating, Inc., 435 S.W.3d 859, 862 (Tex. App.—Dallas 2014, orig. proceeding). In
this regard, an order denying a physical or mental examination may be subject to review
by mandamus. See, e.g., In re Ten Hagen Excavating, Inc., 435 S.W.3d at 863.
II. BACKGROUND
On July 30, 2010, Rodriguez tripped and fell on a metal plate located at the
entrance to a cart “corral” in the parking lot of one of H.E.B.’s stores. As a result of the
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fall, he sustained injuries to his back, knee, arm, shoulder, and face. In addition to other
medical treatment, Rodriguez underwent surgery consisting of an anterior cervical
discectomy and fusion of the C4-5 and C5-6 cervical spine on October 28, 2010, and a
second surgery, including an anterior cervical discectomy with explant of the cervical plate
at C4-5 and C5-6, on December 19, 2011. Rodriguez brought the underlying premises
liability lawsuit against H.E.B. on April 23, 2012 seeking recovery for his personal injuries.
Rodriguez remains under medical care, and, according to his treating physician, may
require an additional surgery.
On December 12, 2013, H.E.B.’s medical expert testified in his deposition that he
had reviewed Rodriguez’s medical records and saw “no sign of any acute injury.” On July
8, 2013, the expert furnished a report stating that, after reviewing Rodriguez’s medical
records, it was his opinion that Rodriguez suffered “preexisting spinal stenosis at C4-5
and C5-6” which was present before his fall and that Rodriguez suffered “no sign of acute
injury” and “[n]o other treatment is needed.”
The underlying lawsuit was initially set for trial on October 28, 2013, but that trial
date was passed by an order granting the parties’ agreed motion for continuance. On
February 25, 2014, H.E.B. filed a motion requesting that its medical expert be allowed to
perform a physical examination of Rodriguez. On March 18, 2014, H.E.B. filed an
amended motion for examination.2 The trial court held a hearing on H.E.B.’s request for
a medical examination on March 19, 2014, but did not issue a ruling on the motion. On
June 17, 2014, H.E.B. filed a second amended motion for examination and a motion to
2 We note that an amended pleading adds or withdraws matters to correct or change the previous
pleading. See TEX. R. CIV. P. 62. Once an amended pleading is filed, the previous pleading is no longer
part of the proceedings. See id. R. 65.
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continue the trial date. On August 1, 2014, H.E.B. filed a third amended motion for
examination and a motion to continue the trial date, and it allegedly argued the motion to
the trial court at a pretrial conference held on that day. The case was set for trial on
August 11, 2014; however, that trial date was passed. On January 29, 2015, H.E.B. filed
a fourth amended motion for examination and a motion to continue the trial date. On
February 2, 2015, H.E.B. again allegedly argued its motion to the trial court at a pretrial
hearing. The case was again set for trial on February 19, 2015; however, that trial date
was also passed. On May 26, 2015, H.E.B. filed a fifth amended motion for examination
and a motion to continue the trial date. On May 27, 2015, the motion was set for hearing.
On June 3, 2015, the trial court issued an order denying H.E.B.’s request for examination.3
This original proceeding ensued. By one issue, H.E.B. contends that the trial court
abused its discretion in denying its request for an examination.
III. APPLICABLE LAW
Rule 204 of the Texas Rules of Civil Procedure pertains generally to physical and
mental examinations. See TEX. R. CIV. P. 204.1–204.5. Under Rule 204.1, a party may,
no later than thirty days before the end of the applicable discovery period, move for an
order compelling another party to submit to a physical or mental examination by a
qualified physician or psychologist. See id. R. 204.1(a)(1). The party seeking the
examination must show both (1) good cause and (2) that the mental or physical condition
of a party is in controversy. See id. R. 204.1(c)(1); Coates v. Whittington, 758 S.W.2d
749, 752 (Tex. 1988) (orig. proceeding) (interpreting former rule 167a regarding the
3 Our recitation of the procedural chronology underlying this original proceeding is based largely on
the allegations in the petition for writ of mandamus because we have not been provided with the reporter’s
records from the hearings held on March 19, 2014, August 1, 2014, February 2, 2015, and May 27, 2015.
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propriety of an order requiring a mental examination); In re Ten Hagen Excavating, Inc.,
435 S.W.3d at 866; In re Dallas Group of Am., Inc., 434 S.W.3d 647, 651 (Tex. App.—
Houston [1st Dist.] 2014, no pet.); In re Commitment of Hatchell, 343 S.W.3d 560, 562–
63 (Tex. App.—Beaumont 2011, orig. proceeding). These requirements may not be met
with “conclusory allegations” in the movant’s pleadings or by “mere relevance to the
case.” Coates, 758 S.W.2d at 751; see In re Click, 442 S.W.3d 487, 491 (Tex. App.—
Corpus Christi 2014, orig. proceeding); In re Transwestern Publ’g Co., 96 S.W.3d 501,
505 (Tex. App.—Fort Worth 2002, orig. proceeding).
The “good cause” element 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, 758 S.W.2d at
753; In re Click, 442 S.W.3d at 491. In order to show good cause, the movant must
establish that: (1) the examination is relevant to issues that are genuinely in controversy
in the case and the examination would produce, or would likely lead to, relevant evidence;
(2) a reasonable nexus exists between the condition in controversy and the examination
sought; and (3) it is not possible to obtain the desired information through means that are
less intrusive than a compelled examination. Id. at 751; In re Transwestern Publ’g Co.,
96 S.W.3d at 505; In re Caballero, 36 S.W.3d 143, 144 (Tex. App.—Corpus Christi 2000,
orig. proceeding). There must be a greater showing of need to obtain a physical or mental
examination than to obtain other sorts of discovery. In re Ten Hagen Excavating, Inc.,
435 S.W.3d at 866 (citing Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)).
IV. ANALYSIS
H.E.B. has the burden of providing this Court with a record sufficient to establish
its right to mandamus relief. See TEX. R. APP. P. 52.3(k)(1), 52.7(a); Walker v. Packer,
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827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The record filed by H.E.B. is
deficient insofar as H.E.B. has not provided reporter's records of the hearings on its
motions seeking a physical examination or the hearings where it urged the trial court to
rule on its motions. See TEX. R. APP. P. 52.7(a)(2) (requiring relator to file with the petition
a properly authenticated transcript of any relevant testimony from any underlying
proceeding, including any exhibits offered in evidence, or a statement that no testimony
was adduced in connection with the matter); Walker, 827 S.W.2d at 837. The record and
appendix further lack the pleadings filed by Rodriguez in response to H.E.B.’s motions for
a medical examination.
Moreover, based on the limited record provided, H.E.B. has failed to meet its
burden to show that its ability to present a viable claim or defense is vitiated or severely
compromised by the trial court’s refusal to allow a medical examination, see In re Allied
Chem. Corp., 227 S.W.3d at 658, or that it has established good cause for the
examination. See Coates, 758 S.W.2d at 751; In re Click, 442 S.W.3d at 491. H.E.B.’s
retained expert has already reviewed Rodriguez’s medical records and rendered opinions
pertaining to his alleged injuries. See Coates, 758 S.W.2d at 751; In re Click, 442 S.W.3d
at 491. Under these circumstances, H.E.B. has not shown that the examination will
produce or is likely to lead to evidence relevant to the case. See Coates, 758 S.W.2d at
751; In re Caballero, 36 S.W.3d at 144.
We conclude that H.E.B. has not shown that the trial court abused its discretion in
rendering the June 3, 2015 order denying its request for a medical examination of
Rodriguez.
IV. CONCLUSION
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Based on the foregoing, we deny H.E.B.’s emergency motion to stay the trial court
proceedings and we deny the petition for writ of mandamus. See TEX. R. APP. P. 52.4,
52.8, 52.10.
PER CURIAM
Delivered and filed the
11th day of June, 2015.
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