in Re Michael Weisinger ( 2012 )


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  • Motion for Rehearing Granted; Opinion filed July 12, 2012 Withdrawn; Petition for
    Writ of Mandamus Denied and Memorandum Opinion filed September 6, 2012.
    In The
    Fourteenth Court of Appeals
    NO. 14-12-00558-CV
    IN RE MICHAEL WEISINGER, Relator
    ORIGINAL PROCEEDING
    WRIT OF MANDAMUS
    328th District Court
    Fort Bend County
    Trial Court Cause No. 11-DCV-189139
    MEMORANDUM OPINION ON REHEARING
    On June 18, 2012, relator Michael Weisinger filed a petition for writ of mandamus
    in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the
    petition, relator asked this court to compel Walter Armatys, associate judge of the 328th
    District Court of Fort Bend County, to vacate the March 27, 2012 order appointing Dr.
    Bernard Gerber as an expert witness, and the June 4, 2012 order requiring relator to pay
    Dr. Gerber’s fee. On July 12, 2012, we dismissed the petition for want of jurisdiction
    because our mandamus jurisdiction does not extend to associate judges. In re Weisinger,
    No. 14-12-00558-CV; 
    2012 WL 2877682
    (Tex. App.—Houston [14th Dist.] July 12,
    2012, orig. proceeding). On July 17, 2012, relator filed a motion for rehearing and
    second amended petition to which he attached the order signed by Judge Ronald Pope,
    presiding judge of the 328th District Court. We grant relator’s motion for rehearing,
    withdraw our previous opinion issued July 12, 2012, and issue this memorandum opinion
    in its place.
    Background
    On February 16, 2011, relator’s ex-wife, Janna Sue Fries, filed a petition to
    modify the parent-child relationship seeking indefinite child support for J.M.W., an adult
    child, asserting the child suffers from multiple mental disabilities that render him
    incapable of self-support. On February 14, 2012, relator filed a motion for physical and
    mental examination in the trial court asking the court to require J.M.W. to undergo a
    physical and mental examination by Dr. Seth Silverman. Fries objected to relator’s
    motion on the grounds that J.M.W. had been evaluated by his treating psychiatrist and a
    second psychiatrist.    Further, an independent evaluation had been performed by a
    psychologist. Fries requested that in the event the court granted relator’s request, the
    court also order relator to pay the costs of the evaluation because she had paid for three
    previous evaluations.
    On February 27, 2012, Judge Ronald Pope, presiding judge of the 328th District
    Court, held a hearing at which both relator and Fries were represented by counsel.
    Relator argued that a Montgomery County court had previously ordered a mental and
    physical evaluation conducted by Dr. Silverman. Judge Pope agreed to authorize the
    independent evaluation, but declined to appoint Dr. Silverman. He requested that the
    parties attempt to agree on an individual to conduct the examination.        Judge Pope
    instructed the parties that if they could not agree, they should return with two or three
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    names from which the court could choose. At that time, Judge Pope expressed his intent
    to require relator to pay for the evaluation.
    On March 27, 2012, Judge Pope signed an order appointing Dr. Bernard Gerber as
    an independent expert and requiring relator to pay Dr. Gerber’s fees. No record was
    made of the hearing held March 27, 2012.
    In his petition, relator contends the trial court abused its discretion (1) by
    excluding relator’s expert Dr. Silverman from performing an independent physical and
    mental evaluation on J.M.W., thus prohibiting or depriving relator of the ability to
    prepare for and conduct a meaningful trial on the merits, (2) appointing Dr. Gerber to
    perform the independent psychological evaluation and “in essence act as [relator]’s
    expert witness,” and (3) ordering relator to bear the cost of Dr. Gerber’s evaluation.
    Mandamus Standard
    Mandamus is an extreme remedy, and to be entitled to such relief, a petitioner
    generally must show that the trial court clearly abused its discretion and that the relator
    has no adequate remedy by appeal. In re McAllen Med. Ctr., Inc., 
    275 S.W.3d 458
    (Tex.
    2008) (orig. proceeding). The adequacy of an appellate remedy must be determined by
    balancing the benefits of mandamus review against its detriments. In re Prudential Ins.
    Co. of Am., 
    148 S.W.3d 124
    , 136 (Tex. 2004) (orig. proceeding). The trial court abuses
    its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear
    and prejudicial error of law. Walker v. Packer, 
    827 S.W.2d 833
    , 839–40 (Tex. 1992)
    (orig. proceeding).
    Analysis
    Relator presents two main arguments. First, relator contends that he is entitled to
    have J.M.W. examined by an expert of his choosing, and that the trial court abused its
    discretion in excluding Dr. Silverman as relator’s designated witness. Second, relator
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    contends the trial court abused its discretion in ordering relator to pay the costs of the
    independent evaluation.
    Appointment of Independent Expert
    This case arises under Title V of the Family Code. See Tex. Fam. Code Ann. §
    154.302. The Rules of Civil Procedure provide:
    In cases arising under Family Code Titles II or V, the court may—on its
    own initiative or on motion of a party—appoint:
    (a) one or more psychologists or psychiatrists to make any and all
    appropriate mental examinations of the children who are the subject of the
    suit or of any other parties, and may make such appointment irrespective of
    whether a psychologist or psychiatrist has been designated by any party as a
    testifying expert[.]
    Tex. R. Civ. P. 204.4(a).
    Under Rule 204.4, relator does not have an absolute right to have a physician of
    his own choosing conduct the independent examination of J.M.W.. See Employees Mut.
    Casualty Co. v. Street, 
    707 S.W.2d 277
    , 279 (Tex. App.—Fort Worth 1986, orig.
    proceeding) (construing the predecessor to Rule 204.4). Therefore, the trial court did not
    abuse its discretion in appointing Dr. Gerber rather than Dr. Silverman. Moreover, the
    trial court did not prohibit relator from hiring Dr. Silverman.
    Assessment of Expert’s Fees
    Ordinarily, the fee of an expert witness constitutes an incidental expense in
    preparation for trial and is not recoverable.     Rule 131 of the Texas Rules of Civil
    Procedure provides that “[t]he successful party to a suit shall recover of his adversary all
    costs incurred therein, except where otherwise provided.” Tex. R. Civ. P. 131. Expert
    witness fees are generally not recoverable as costs because they are incidental expenses
    in preparation for trial. See, e.g., Richards v. Mena, 
    907 S.W.2d 566
    , 571 (Tex. App.—
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    Corpus Christi 1995, writ dism’d by agr.) (regardless of any good cause shown, costs of
    experts are incidental expenses in preparation for trial and not taxable court costs); King
    v. Acker, 
    725 S.W.2d 750
    , 755 (Tex. App.—Houston [1st Dist.] 1987, no writ) (plaintiffs
    in action for tortious interference with inheritance rights could not recover costs of
    handwriting experts as those were litigation expenses).
    In this case, however, Rule 131 does not apply because (1) the litigation has not
    concluded, and (2) this is a family law case. See, e.g., Diaz v. Diaz, 
    350 S.W.3d 251
    ,
    255–56 (Tex. App.—San Antonio 2011, pet. denied). While there is no statute that
    explicitly addresses whether a party to a suit affecting the parent-child relationship may
    recover expenses for expert witness fees, there are certain instances in which expert
    witness fees have been awarded in family law proceedings. For example, it has been
    recognized that the trial court has the discretion to award expert witness fees as costs
    under Section 6.708 of the Texas Family Code. Tex. Fam. Code Ann. § 6.708; see
    Farley v. Farley, 
    930 S.W.2d 208
    , 213–14 (Tex. App.—Eastland 1996, no writ) (trial
    court has discretion to award expert witness fees, assuming there is sufficient evidence to
    support such an award). Moreover, in a suit affecting the parent-child relationship, it has
    been held that Section 106.002 of the Texas Family Code authorized an award of expert
    witness fees for valuing a business in connection with a division of property. Diaz, 
    350 S.W.3d 251
    .
    In asserting that the trial court abused its discretion in ordering relator to pay the
    expert’s fees, relator argues that the court did not adhere to the provisions required
    pursuant to Rule 204 of the Texas Rules of Civil Procedure and the Texas Family Code.
    Rule 204 addresses appointment of an expert as addressed above, but does not address
    which party is responsible for the expert’s fees.
    Relator does not specify what portion of the Family Code the trial court failed to
    follow. Section 106.002, however, addresses attorney’s fees and expenses as follows:
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    (a) In a suit under [Title V], the court may render judgment for reasonable
    attorney’s fees and expenses and order the judgment and post-judgment
    interest to be paid directly to an attorney.1
    In a suit under Title V, the trial court can correctly award the expert fee as an
    expense under section 106.002 so long as there is sufficient evidence to support the
    amount of fees. 
    Diaz, 350 S.W.3d at 256
    ; compare In re Slanker, 
    365 S.W.3d 718
    , (Tex.
    App.—Texarkana 2012, orig. proceeding) (holding trial court had discretion to award
    expert witness fees, but granting mandamus due to absence of evidentiary support for
    reasonableness of fee.).
    In this case, relator does not argue that the evidence is insufficient to support the
    reasonableness of the fee, nor does he explain how the trial court failed to follow the
    Rules of Civil Procedure or the Texas Family Code. On this record, there is no evidence
    that the trial court abused its discretion in ordering relator to pay the expert witness fees.
    Relator has failed to establish entitlement to the extraordinary relief of a writ of
    mandamus.
    Real Party’s Request for Sanctions
    In her response, the real party in interest moved for sanctions pursuant to Texas
    Rule of Appellate Procedure 52.11. Real party alleges that relator filed a groundless
    petition brought solely for the purpose of delay. In addition, real party contends relator
    misrepresented the record by misstating rulings of the Montgomery County court and
    omitting the record from the March 27, 2012 hearing.
    Rule 52.11, entitled “Groundless Petition or Misleading Statement or Record,”
    provides:
    1
    Fries is seeking support for a disabled adult child under Title V of the Family Code. See Tex.
    Fam. Code Ann. § 154.302
    6
    On motion of any party or on its own initiative, the court may—after notice
    and a reasonable opportunity to respond—impose just sanctions on a party
    or attorney who is not acting in good faith as indicated by any of the
    following:
    (a) filing a petition that is clearly groundless;
    (b) bringing the petition solely for delay of an underlying proceeding;
    (c) grossly misstating or omitting an obviously important and material fact
    in the petition or response; or
    (d) filing an appendix or record that is clearly misleading because of the
    omission of obviously important and material evidence or documents.
    Tex. R. App. P. 52.11.
    We exercise the discretion afforded us by Rule 52.11 with prudence and caution
    and only after careful deliberation. In re Lerma, 
    144 S.W.3d 21
    , 26 (Tex. App.—El Paso
    2004, orig. proceeding).
    Relator’s failure to include the Montgomery County rulings or the record of the
    March 27, 2012 hearing does not constitute the omission of obviously important and
    material evidence or documents. The Montgomery County rulings are irrelevant to the
    trial court’s actions in this case. Regarding the record of the March 27, 2012 hearing,
    relator informed this court that although he did not waive the making of a record, the
    court reporter “failed to either make a record or properly preserve said record.” We
    conclude that relator did not file a clearly groundless petition or bring the petition solely
    for delay of the underlying proceeding. Relator did not grossly misstate any obviously
    important and material fact or file an appendix or record that is clearly misleading.
    Because the real party in interest has not established any of the prerequisites under Rule
    52.11, we deny her motion for sanctions.
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    Accordingly, we deny relator’s petition for writ of mandamus and deny real
    party’s motion for sanctions.
    PER CURIAM
    Panel consists of Justices Frost, McCally, and Busby.
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