### IN THE TENTH COURT OF APPEALS
No. 10
- 24
- 00028
- CV
IN RE GABRIEL MORENO
Original Proceeding

From the 66th District Court Hill County, Texas Trial Court No. CV069
- 21DC

MEMORANDUM OPINION
In this original proceeding, Relator Gabriel Moreno seek s mandamus relief from the trial court’s January 2, 2024 order granting Real Party in Interest REP Transports, LLC’s motion to compel an independent medical examination of him without conditions. We conditionally grant Moreno’s mandamus petition. Backgroun d The underlying case ar ises from a motor vehicle collision that occurred on Interstate 35 in Hill County on January 21, 2021. Moreno and REP Transports , LLC have sued each other for negligence . I n his live pleading, Moreno specifically asserts that hisIn re M oreno Page 2 vehicle was violently struck, and he sustained life threatening injuries, including blunt force trauma to his head, neck, back, arms and legs. He was hospitalized and diagnosed with multiple fractures and trauma, which were treated long term. He has als o sustained a traumatic brain injury which has caused emotional suffering. These injuries limited his past wages and future earning potential. REP Transports , LLC filed a motion to compel an independent medical
examination of Moreno under Rule of Civil Procedure 204 .1

. See generally T EX

. R. C IV

. P.
204.1. Moreno responded , opposing REP Transports , LLC ’s motion to compel . The trial court conducted a hearing and , o n January 2, 2024, signed an order granting REP Transports , LLC ’s motion to compel . The o rder requir ed Moreno to submit to an independent medical examination before February 1, 2024

. On January 29, 2024, Moreno filed his mandamus petition in this Court, along with a motion to stay the trial court’s January 2, 2024 order. We granted Moreno’s motion to stay the trial court’s order

. Discussion Mandamus is an extraordinary remedy, available only when the relator can show both that: (1) the trial court clearly abused its discretion ; and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co. , 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding); see Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a t rial court’s ruling is arbitrary and
unreasonable , made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am. , 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding) (citing
Ford Motor Co. v. Garcia , 363 S.W.3d 5 73, 578 (Tex. 2012) )

. Similarly, a trial court abusesIn re M oreno Page 3 its discretion when it fails to analyze or apply the law correctly to the facts. Id. ; In re H.E.B. Grocery Co. , 492 S.W.3d 300, 302 (Tex. 2016) (per curiam) (orig. proceeding). Rule of Civil Procedure 204.1 governs whether a party may obtain a physical or mental examination of another party. H.E.B. Grocery Co. , 492 S.W.3d at 303. 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 to a mental examination by a qualified psychologist. T EX

. R. C IV

. P. 204.1(a)(1). The trial court may grant the Rule 204.1 motio n if the movant shows both (1) that “ good cause ” exists for the examination and (2) that the mental or physical condition of the party the movant seeks to examine is in controversy

or that the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist’s records for possible use at trial. See id. R. 204.1(c); H.E.B. Grocery Co. , 492 S.W.3d at 303. The rule’s “good cause requirement . . . balance[s] the movant’s right to a fair trial and the other party’s right to privacy.” . . . H.E.B. Grocery Co. , 492 S.W.3d [at] 303 . . . . To establish good cause, the movant must show that (1) the examination is relevant to the issue in controversy and is likely to lead to relevant evidence, (2) there is a “reasonable nexus between the examination and the condition in controversy,” and (3) the desired information “cannot be obtained by less intrusive means.” I d.
In re Sherwin

- Williams Co. , 668 S.W.3d 368, 370

– 71 (Tex. 2023) (per curiam) (orig. proceeding). Here, Moreno does not dispute that his mental or physical condition is in controversy. Moreno does contend , however, that REP Transports, LLC f ailed to offer any evidence in support of its Rule 204.1 motion showing the necessity or scope of theIn re M oreno Page 4 examination or showing that the information could not be obtained through less intrusive

means. Moreno argues that the trial court therefore clearly abused its di scretion in granting REP Transports, LLC’s Rule 204.1 motion.
In its Rule 204.1 motion , REP Transports, LLC requested that the trial court require Moreno to submit to an independent medical examination by Dr. Lauren Woodruff Rasmussen, a neuropsychologist

. REP Transports, LLC explained in the motion that the examination would be “designed to evaluate [Moreno’s] function in the following domains: 1) general intelligence; 2) attention/concentration; 3) sensation

- perception; 4)

motor

- praxis; 5) language; 6) new learning and memory; 7) higher level cognition

executive function; 8) emotional status; and 9) response validity.” REP Transports, LLC
also stated in the motion: “[Moreno’s] pleadings, discovery responses, and testimony place [his] physical and ment al condition in controversy and give[] REP Transport[s] good cause for an [independent medical examination] under Rule 204.1(a).” REP Transports, LLC further noted both in the Rule 204.1 motion and at the hearing on the
motion that Moreno ha s designated a neuro psychologist , Dr. Richard Fulbright, to testify

on Moreno’s behalf. But REP Transports, LLC did not attach any evidence t o its motion. Nor did REP Transports, LLC introduce any evidence at the hearing on the motion.
U nder Rule 204.1, even if the person to be examined has designated a psychologist to testify regarding his mental condition, the party seeking the examinat ion must still demonstrate “good cause” for the examination. In re Transwestern Publ’g Co. , 96 S.W.3d 501, 506 (Tex. App.

— Fort Worth 2002, orig. proceeding); see T EX

. R. C IV

. P. 204.1(c)

.In re M oreno Page 5 “Good cause” is not assumed merely because a psychologist has been appointed to testify as an expert regarding a party ’s mental condition. Transwestern Publ’g Co. , 96 S.W.3d at
506. Furthermore , the requirements of Rule 204.1 are not satisfied by “conclusory allegations” in the movant’s pleadings or by “mere relevance to the case.” See H.E.B. Grocery Co. , 492 S.W.3d at 303 (quoting Coates v. Whittington , 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding) (interpreting Rule 204.1’s predecessor)). We therefore conclude that REP Transports, LLC failed to show that “go od cause” exists for the independent medical examination of Moreno. Because of REP Transports,
LLC’s failure , we further conclude that the trial court abused its discretion in granting REP Transports, LLC’s motion to compel the independent medical examina tion of
Moreno. See T EX

. R. C IV

. P. 204.1(c); Sherwin

- Williams Co. , 668 S.W.3d at 370

– 71. “Notwithstanding that abuse of discretion, we will not grant mandamus relief if there is a clear and adequate remedy at law, such as a normal appeal.” Sherwin

- Williams
Co. , 668 S.W.3d at 372 (quoting H.E.B. Grocery Co. , 492 S.W.3d at 304 (internal quotati ons omitted)). We conclude that an appeal of the trial court’s order after trial would not provide an adequate remedy because the examination would violate Moreno’s privacy rights. See In re Estabrook , No. 10

- 20

- 00175

- CV, 2020 WL 6192923, at *4 (Tex. App

. — Waco Oct. 21, 2020, orig. proceeding) (mem. op.). For the foregoing reasons , w e sustain Moreno’s first issue. Because we have sustained Moreno’s first issue, we need not reach his second issue regarding the breadth
of the order.In re M oreno Page 6 Conclusion
W e lift our stay of the trial court’s January 2, 2024 order granting REP Transports,
LLC’s mo tion to compel the independent medical examination of Moreno and

c onditionally grant Moreno’s mandamus petition. A writ will issue only if the trial court
fails to vacate its January 2, 2024 order within twenty

- one days of the date of this opinion.

MATT JOHNSON Justice Before Chief Justice Gray, Justice Johnson , and Justice Smith (Chief Justice Gray concurs.) Petition conditionally granted Opinion delivered and filed March 21, 2024 [OT06]