in Re Juan Servantez and Happy Trash, LLC, Relators

• Court: Court of Appeals of Texas
• Decided: January 12, 2022
• Docket: 07-21-00153-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00153-CV

IN RE JUAN SERVANTEZ AND HAPPY TRASH, LLC, RELATORS

On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2019-534,220, Honorable Ann-Marie Carruth, Presiding

January 12, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

In this original proceeding, relators Juan Servantez and Happy Trash, LLC, seek

mandamus relief from the trial court’s order denying their motion for an independent

medical examination of real party in interest Reagan Olivo. We deny relators’ petition for

writ of mandamus as moot.

Olivo brought a personal injury lawsuit against Servantez and his employer, Happy

Trash, LLC, following a motor vehicle accident in Lubbock. Olivo alleges that Servantez,

while in the course and scope of his employment, collided with her on University Avenue in Lubbock, causing her multiple severe injuries. She seeks damages for past and future

medical expenses, physical pain, physical impairment, and more.

Olivo designated her treating physician, anesthesiologist Dr. C. Michel Oliva, as

an expert witness. Following Dr. Oliva’s deposition, relators filed a motion for an

independent medical examination of Olivo. See TEX. R. CIV. P. 204.1. By their motion,

relators sought to have Olivo submit to a physical examination by Dr. Warren Neely, a

neurosurgeon practicing in San Antonio. Relators offered to pay the necessary expenses

for Olivo to travel to San Antonio for the examination.

Olivo filed a response in which she objected to the use of Dr. Neely and to the

proposed location and scope of the exam, and further asserted that relators had not met

their burden to obtain an independent medical examination. The trial court held a hearing

on relators’ motion on February 26, 2021, and entered an order denying the motion on

March 4. Relators moved for reconsideration; that motion was heard on April 19.

On July 6, relators filed a writ of mandamus praying that this Court order the trial

court “to vacate the Order, and order Reagan Olivo to submit to the requested physical

examination by Relators’ expert.” We requested a response from Olivo.

While the mandamus proceeding was pending, the trial court issued an order on

September 8, 2021, granting relators’ motion for reconsideration. The trial court’s order

permitted the independent medical examination to proceed, with the proviso that any

examination of Olivo be conducted in Lubbock.

The trial court’s September 8 order supersedes its March 4 order. However, the

petition for writ of mandamus complains only of the March 4 order. Therefore, we have 2 no discretion but to deny mandamus. See In re Garcia, 09-08-00461-CV, 2009 Tex. App.

LEXIS 1560, at *1 (Tex. App.—Beaumont Mar. 5, 2009, orig. proceeding) (mem. op.) (per

curiam) (“This original proceeding is moot because the order relator attacks has been

replaced.”); Jim Walter Homes, Inc. v. McGee, 05-00-00851-CV, 2000 Tex. App. LEXIS

8403, at *1-2 (Tex. App.—Dallas Dec. 19, 2000, no pet.) (mem. op.) (dismissing appeal

as moot because it concerned an order that had been superseded).

Accordingly, relators’ petition for writ of mandamus is denied as moot. See TEX.

R. APP. P. 52.8(a).

Judy C. Parker Justice