Moore v. Wood

809 S.W.2d 621, 1991 Tex. App. LEXIS 1180, 1991 WL 74851
Court of Appeals of Texas·Decided May 2, 1991·No. 01-91-00266-CV·Published·Cited by 10 cases

Opinion

OPINION

SAM BASS, Justice.

Relator, Kenneth R. Moore, seeks mandamus relief from respondent Judge Sharo-lyn Wood’s March 18, 1991, order, which directs relator to present himself at the office of Rehabilitation Resources, Inc. so that a vocational rehabilitation interview and assessment can be conducted by Mr. William L. Quintanilla.

Relator sued the real parties in interest, Dixilyn-Field Drilling Company (Dixilyn), Benton Casing Service, Inc., and Neumin Production Company for personal injuries allegedly sustained on September 10, 1986, while he was employed as a toolpusher and crew member of a jackup rig located offshore Texas. 1 The defendants moved to require the plaintiff to submit to a vocational rehabilitation interview and evaluation by Quintanilla, a vocational rehabilitation specialist. They contended that the plaintiffs ability to obtain and perform suitable employment was in controversy, and that Quintanilla was well qualified to assess and determine the capabilities of the plaintiff with regard to present and future employment. The plaintiff filed a response opposing Quintanilla’s interview and evaluation, arguing that (1) Tex.R.Civ.P. 166b and 167a allow the court to appoint a physician, not a rehabilitation specialist, and (2) no good cause exists for such interview and evaluation because the plaintiff has testified by deposition about such matters as Quintanilla would question him.

After a hearing, Judge Wood granted the defendants’ motion, and provided in the order that Quintanilla could inquire of the plaintiff any issues customarily or routinely inquired about in performing a vocational rehabilitation evaluation, that Quintanilla could conduct such noninvasive tests as are customary and reasonable in performing such an evaluation, and that the plaintiff’s representative could be present during the interview and testing, provided such attendance did not disrupt the proceedings. The order also allowed the plaintiff’s attorney to take Quintanilla’s deposition before any interview of the plaintiff and to receive a timely copy of Quintanilla’s report from the defendants.

Relator reurges the same arguments in his petition for writ of mandamus to prevent the vocational rehabilitation interview and assessment that he presented to the trial court. Dixilyn has filed a response, contending that (1) relator failed to preserve his arguments because he did not assert them at the hearing on the motion, (2) no rule expressly prohibits Judge Wood’s order, and (3) relator has failed to demonstrate he has no adequate remedy by appeal.

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). Mandamus relief is also available to set aside a void order of the trial court. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973); Zep Mfg. Co. v. Anthony, 752 S.W.2d 687, 689 (Tex.App. — Houston [1st Dist.] 1988, orig. proceeding). The question before us is whether Judge Wood has the authority to order relator to submit to a vocational rehabilitation interview and assessment.

We begin by addressing Dixilyn’s contention that relator failed to preserve his argument that Judge Wood’s order was not authorized by the Texas Rules of Civil Procedure. Relator made this argument in his response to Dixilyn’s motion, and a copy of that response is in the record before us. Nothing in Shafer v. Bedard, 761 S.W.2d 126, 129 (Tex.App. — Dallas 1988, orig. proceeding), cited by Dixilyn, which concerned judicial admission of a fact, indicates that such manner of preservation is inadequate either in an appeal or in a man *623 damus proceeding. Dixilyn’s contention is without merit.

In determining whether the Texas Rules of Civil Procedure permit a trial court to order the testing and evaluation of a plaintiff by a vocational rehabilitation specialist where one of the issues in the case is damages for lost future wages, it is necessary for us to construe Tex.R.Civ.P. 166b(l), (2)(a) and 167a(a). In construing such rules, we are mindful that they have the same force and effect as statutes. Missouri Pac.R.R. v. Cross, 501 S.W.2d 868, 872 (Tex.1973). Therefore, we apply the same rules of construction to them as we do to statutes. Hidalgo, Chambers & Co. v. Federal Deposit Ins. Corp., 790 S.W.2d 700, 702 (Tex.App. — Waco 1990, writ denied). While the rules are to be liberally construed to ensure a fair and equitable adjudication of the rights of the litigants, their plain meaning cannot be ignored. Heard v. Heard, 305 S.W.2d 231, 235 (Tex.Civ.App. — Galveston 1957, writ ref’d). When a court interprets a statute, it must give effect to all the words of a statute and not treat any statutory language as sur-plusage if possible. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987); see also City of Houston v. Morgan Guar. Int’l Bank, 666 S.W.2d 524, 529 (Tex.App. —Houston [1st Dist.] 1983, writ ref'd n.r. e.), cert. denied, 469 U.S. 1213, 105 S.Ct. 1185, 84 L.Ed.2d 332 (1985).

Rule 166b of the Texas Rules of Civil Procedure distinguishes forms of discovery from the scope of discovery. We find the language of rule 166b(2)(a) plainly means the scope of discovery is expansive:

Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Tex.R.Civ.P. 166b(2)(a) (emphasis added). It is in connection with the scope of discovery that the Texas Supreme Court has stated:

[W]e note that the ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. For this reason, discovery is not limited to information that will be admissible at trial. To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to the discovery of material evidence. Allen v. Humphreys,

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Moore v. Wood, 809 S.W.2d 621, 1991 Tex. App. LEXIS 1180, 1991 WL 74851 (Tex. Ct. App. 1991).

809 S.W.2d 621 (Moore v. Wood) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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