Court of Appeals of Texas, Sixth District, Texarkana
IN RE WEE WISDOM PLAYSCHOOL AND KINDERGARTEN, INC., D/B/A HOWELL'S WEE WISDOM PRESCHOOL, AND GYPSIE GESSMAN
Submitted: December 10, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
R. MORRISS III CHIEF JUSTICE
Wisdom Playschool and Kindergarten, Inc., d/b/a Howell's
Wee Wisdom Preschool, and Gypsie Gessman (Relators) have
filed a petition for writ of mandamus seeking the
modification of an order modifying and granting an
independent medical examination entered on August 19, 2019
(the Modification Order), by the Honorable Keli M. Aiken,
judge of the 354th Judicial District Court in Hunt County
(the Respondent). Relators ask this Court to direct the
Respondent to modify the Modification Order by removing the
restrictions relating to the time limit on the psychological
examination and the requirement of a third-party observer. We
deny Relators' petition because they have not shown that
they are entitled to mandamus relief.
filed a motion to compel an independent medical examination
(the Motion to Compel) seeking an order from the trial court
for a neuropsychological examination of C.M., one of the
plaintiffs, by Relators' psychological expert, Dr. Alice
Ann Holland. On July 8, 2019, a hearing was held on the
Motion to Compel. On July 29, 2019, the trial court entered
its order granting the Motion to Compel. In the July 29
order, the trial court, inter alia, ordered an
examination of C.M. by Holland consisting of an interview and
an administration of a test battery; limited the
administration of the test battery to three hours, exclusive
of time for breaks for C.M.; and ordered that a
representative from the office of plaintiffs'
psychologist attend the examination of C.M.
August 2, 2019, the plaintiffs and real party in interest,
Jayda Morgan, individually and as next friend of C.M., a
minor (Morgan), filed a motion to reconsider the July 29
order. A hearing on Morgan's motion was held August 6,
2019. On August 19, 2019, the trial court entered the
Modification Order. The Modification Order, inter
alia, limited the examination by Holland, including
testing, to three hours and ordered that a representative
from the office of Morgan's psychologist attend the
examination of C.M.
August 22, 2019, Relators filed a motion for reconsideration
of the Modification Order and requested that the trial court
vacate both the time limitations placed on Holland's
examination and the requirement that a representative from
the office of Morgan's psychologist attend the
examination contained in the Modification Order. A hearing on
Relators' motion was held September 18, 2019. The record
reflects, and the parties do not dispute, that the relief
requested by Relators was not granted.
their petition, Relators argue that the trial court abused
its discretion in imposing these restrictions and ask this
Court to direct the Respondent to modify the Modification
Order to remove the restrictions relating to the time limit
on the psychological examination and the requirement of a
relief will be granted only when the record establishes (1) a
clear abuse of discretion or the violation of a duty imposed
by law and (2) the absence of a clear and adequate remedy at
law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992) (orig. proceeding); see In re Columbia Med. Ctr. of
Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig.
proceeding). However, the relator must provide this Court
with a record sufficient to establish its right to mandamus
relief. Walker, 827 S.W.2d at 837; In re
Pilgrim's Pride Corp., 187 S.W.3d 197, 198- 99 (Tex.
App.-Texarkana 2006, orig. proceeding); see Tex. R.
App. P. 52.3.
case, the trial court imposed both the time limitation for
the psychological examination and the requirement of a
third-party observer in its July 29 order, which was entered
after the July 8, 2019, hearing. As the parties seeking
relief, Relators had the burden of providing this Court with
the transcript from that hearing. See Walker, 827
S.W.2d at 837. Since Relators have not met this burden, they
have not provided this Court with a sufficient record to
establish their right to mandamus relief. See id.
reasons stated, we deny Relators' petition for writ of