in Re Big Creek Construction, Ltd. and Richard Eaker

• Court: Court of Appeals of Texas
• Decided: March 21, 2018
• Docket: 10-18-00097-CV
• Status: Published

Opinion

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