Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 22, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice
Tillotson objected to the Inventory, Appraisement, and List
of Claims filed by Kristi Hoyl, Administratrix of
the Estate of Leah Rita Tillotson,  claiming that the inventory
omits various needed offsets and credits and lacks needed
itemization and/or documentation. He also requested a jury
trial on his objections, but the trial court denied his
request and set his objections for a bench trial. Tillotson
has petitioned this Court for mandamus relief to get his
desired jury trial. Because Tillotson has failed to show
himself entitled to a jury trial in this circumstance, we
deny his petition.
entitled to mandamus relief, the relator must show (1) that
he or she has no adequate remedy at law and (2) that the
action he or she seeks to compel is ministerial, not one
involving a discretionary or judicial decision. State ex
rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)
(orig. proceeding). Before mandamus may issue, the relator
must show that the trial court had a legal duty to perform a
ministerial act, was asked to do so, and failed or refused to
act. In re Villarreal, 96 S.W.3d 708, 710 (Tex.
App.- Amarillo 2003, orig. proceeding).
denial of a jury trial, when a right to one is clearly shown,
is reviewable pretrial by mandamus. In re Lesikar,
285 S.W.3d 577, 587 (Tex. App.-Houston [14th Dist.] 2009,
orig. proceeding) (citing In re Prudential, 148
S.W.3d 124, 139 (Tex. 2004) (orig. proceeding)). If a
petitioner waits until after trial to seek mandamus relief
from the wrongful denial of a prior jury demand, mandamus may
be denied because there would be an adequate remedy by
appeal. See In re Johnson, 238 S.W.3d 846, 848 (Tex.
App.-El Paso 2007, orig. proceeding). Here, Tillotson seeks
mandamus relief before trial. He stands to lose a substantial
right if mandamus review is denied because, if,
on appeal, he were to demonstrate a right to a jury trial,
his objections to the inventory would need to be retried.
See Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex.
App.- Corpus Christi 1993, orig. proceeding) (stating
adequate remedy by appeal does not exist for denial of jury
trial). Therefore, Tillotson lacks an adequate remedy by
appeal. Prudential, 148 S.W.3d at 136; In re
McDonald, 424 S.W.3d 774, 778 (Tex. App.-Beaumont 2014,
a contested probate . . . proceeding in a probate court, a
party is entitled to a jury trial as in other civil
actions." Tex. Est. Code Ann. § 55.002. Among other
matters, probate proceedings are defined to include the
issuance of letters of administration; "an application,
petition, motion, or action regarding . . . an estate
administration"; a claim arising from an estate
administration; and any action brought on the claim, as well
as an heirship determination. Tex. Est. Code Ann. §
contends that his objections to the inventory amount to a
contested probate matter, entitling him to a jury trial. In
support of his argument, he cites McDonald, where
the probate court struck a petitioner's jury demand, but
mandamus was granted because the petitioner, the father of
the decedent, was challenging heirship and sought to be named
administrator. McDonald, 424 S.W.3d 774. However,
the facts of McDonald are distinguishable from those
in this case, because Tillotson is not challenging heirship
or the issuance of letters of administration, which are
clearly contested probate proceedings. See Tex. Est.
Code Ann. § 31.001(2)-(3). Furthermore, Tillotson has
neither filed an adversarial claim for money owed by the
estate, nor challenged the administration of the estate.
See Tex. Est. Code Ann. § 31.001(2)-(5).
Therefore, Tillotson has not shown this to be a contested
probate proceeding under Section 55.002.
the order denying Tillotson's jury demand states that he
demanded a jury on his "Objections under Tex. Estate
Code 309.103 to the Administratrix's . . .
Inventory." Section 309.103 provides:
(a) Any interested person who considers an inventory,
appraisement, or list of claims or an affidavit in lieu of
the inventory, appraisement, and list of claims to be
erroneous or unjust in any particular may:
(1) file a written complaint setting forth the alleged
erroneous or unjust item; and
(2) have the personal representative cited to appear before
the court and show cause why the item should not be
(b) On the hearing of the complaint, if the court is
satisfied from the evidence that the inventory, appraisement,
or list of claims or an affidavit in lieu of the inventory,
appraisement, and list of claims is erroneous or unjust as