in Re Big Creek Construction, Ltd. and Richard Eaker ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00097-CV
IN RE BIG CREEK CONSTRUCTION, LTD.
AND RICHARD EAKER
Original Proceeding
MEMORANDUM OPINION
Relator filed a petition for writ of mandamus asking this Court to direct the trial
court to withdraw the March 5, 2018 Order Denying Defendants’ Motion to Compel
Mental Examination Pursuant to Rule 204.1 and to order the Rule 204.1 examination of
Billy Stevens.
Relator’s Petition for Writ of Mandamus was filed on March 19, 2018. The real
party in interest filed a response on March 21, 2018. The response, while being titled as
addressing only the motion for emergency relief, also requested that the relief requested
in the mandamus be denied. Accordingly we believe, based on the relief requested and
the content of the response, that the response is effectively a response to the petition for
writ of mandamus such that we do not need to request a response before ruling. See
TEX.R.APP.P 53.3.
Without recitation of the facts of the case and discussion of the applicable law, of
which the parties are well aware, based on the Texas Supreme Court’s opinion in In re
H.E.B, and the authorities cited therein, Respondent abused its discretion by failing to
order a mental examination of Billy Stevens. In re H.E.B. Grocery Co., 492 S.W.3d 300 (Tex.
2016)( orig. proceeding). Accordingly, we conditionally grant Relator’s Petition for Writ
of Mandamus. A writ will issue only if Respondent fails to vacate its order issued on
March 5, 2018, and order a mental examination of Billy Stevens pursuant to
TEX.R.CIV.PROC. 204.1(d) and also notify this Court in writing that it has done so within
7 days from the date of this opinion. Relator’s motion for stay is dismissed as moot1.
AL SCOGGINS
Justice
1Notwithstanding that the Court is granting the requested relief, we are concerned with the extent of havoc
this allows a party to create in the orderly management of the trial court’s docket. Moreover, we expressly
disavow the petition’s statement that this “Court has ruled [ ] Mr. Stevens should not be deposed in this
case based on his cognitive state.” We have made no such ruling.
In re Big Creek Construction, Ltd. Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition conditionally granted; motion dismissed as moot
Opinion delivered and filed March 21, 2018
[OT06]
In re Big Creek Construction, Ltd. Page 3