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Withdrawn; Petition for Writ of Mandamus Denied ; and Substitute Memorandum Opinion filed January 9, 2014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 W AYNE BALL , Relator s

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 f or rehearing, withdraw our earlier opinion, and issue this substitute opinion.2 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 medica l expenses, York submi tted

to an evaluation by Doctor John W. Largen , a neuropsychologist

. Doctor Larg en 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
D octor 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 injur y 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 psycholog ical evaluation.3 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 r eview 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. 199 2) (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 cour t 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 di sclosed 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.

Goo d 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 satisfi ed only when the movant satisfies the following three elements. First, the examination must be relevant to issues that are genuinely in4

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 i s 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, D octor 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 t he 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 opinio ns 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 establ ish that discovery from the identified medical professional was insufficient).

CONCLUSION

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

PER CURIAM

Panel c onsists of Chief Justice Frost and Justices Boyce and Jamison.