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In re Bertucci

Court of Appeals of Texas, Third District, Austin

October 18, 2019

In re Christopher F. Bertucci, Executor, Estate of Anthony R. Bertucci

          ORIGINAL PROCEEDING FROM TRAVIS COUNTY

          Before Justices Goodwin, Baker, and Kelly

          OPINION

          MELISSA GOODWIN, JUSTICE

         In this original proceeding, Christopher Bertucci seeks mandamus relief from the probate court's denial of his motion to exclude the court appointed auditor's report based on his exceptions to the report-which he alleges were timely because the report was not verified when initially filed-and from the probate court's ruling that the auditor's report "is conclusive as to the accounts stated therein." See Tex. R. Civ. P. 172 (providing procedure for appointing auditor, requiring auditor's report to be verified, and establishing deadlines for exceptions to report); Tex. R. Evid. 706 (requiring admission of verified rule 172 report and permitting evidence supporting exceptions contradicting report "[i]f a party files exceptions to the report"). After receiving Bertucci's petition, we requested a response from Eugene Watkins, Jr. Because Bertucci failed to meet his burden to show that he did not have an adequate appellate remedy, we deny his petition for mandamus without addressing whether the probate court abused its discretion. See In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam) (noting that to establish right to mandamus, relator must show both that trial court abused its discretion and that no adequate appellate remedy exists).

         "As an extraordinary remedy, mandamus is available only in limited circumstances"-i.e., "'only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.'" City of Houston v. Houston Mun. Employees Pension Sys., 549 S.W.3d 566, 580 (Tex. 2018) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus can correct clear error in exceptional cases, but we must be mindful that the benefits of mandamus review are easily lost by overuse. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). Mandamus review may unduly interfere with trial court proceedings, distract appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and add unproductively to the expense and delay of civil litigation. Id.

         To merit mandamus review, the relator must establish that there is "no adequate remedy by appeal." Id. at 135-36. The word "adequate" is "a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts" and "whether an appellate remedy is 'adequate' so as to preclude mandamus review depends heavily on the circumstances presented and is better guided by general principles than by simple rules." Id. at 136-37. Prudential instructs us to consider three primary "jurisprudential considerations" that may weigh in favor of "mandamus review of significant rulings in exceptional cases": (1) is mandamus review "essential to preserve important substantive and procedural rights from impairment or loss," (2) does it "allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments," and (3) does it "spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings." Id. at 136. Bertucci relies primarily on the first Prudential consideration, which we consider after evaluating the second and third Prudential considerations.

         Mandamus review in this case would not provide "needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments." Id. Bertucci effectively admits that the ability to provide guidance is available on appeal, noting that "[p]reviously reported decisions addressing the legal effect of unverified audit reports have arisen on appeal rather than in mandamus proceedings." Other than asserting that "rulings [on a rule 172 audit] can produce an in terrorem effect that will force unfair settlements, "[1] Bertucci does not explain why guidance would "prove elusive in appeals." Nor does he explain how the ruling would "produce an in terrorem effect" when his counterclaim includes a request for attorney's fees under multiple statutory provisions. Cf. In re Gulf Expl., LLC, 289 S.W.3d 836, 842 (Tex. 2009) (orig. proceeding) (noting that "standing alone, delay and expense generally do not render a final appeal inadequate" and "[t]hat is especially true here" when prevailing party "can recover its fees and expenses").

         In some exceptional circumstances, the Texas Supreme Court has concluded that "the enormous waste of judicial and public resources" in conducting a trial or complying with a trial court's order is sufficient to make the appellate remedy inadequate. See, e.g., In re State, 355 S.W.3d 611, 615 (Tex. 2011) (orig. proceeding). The record in this case, however, does not rise to that exceptional level.[2] Admittedly, if Bertucci is correct, he may be burdened with delay and costs associated with conducting a second trial following an appeal. Although Bertucci's purported burden is not insignificant, to hold that mandamus relief is available whenever reversible error may lead to a second trial would change the nature of mandamus relief from extraordinary to ordinary. See Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 356 (Tex. 2019) (combined appeal & orig. proceeding) ("[M]andamus relief is reserved for extraordinary circumstances."); In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding) (per curiam) (noting "the extraordinary nature of the remedy" in "a mandamus proceeding").

         Having concluded that the second and third Prudential considerations do not weigh in favor of mandamus review, we turn to the first Prudential consideration-the primary reason courts have granted mandamus relief. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding) ("The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial-regardless of the outcome-would defeat the substantive right involved."). Bertucci first argues that he will be deprived of his due process right to cross examine the auditor who produced the rule 172 report as an adverse witness. See Davidson v. Great Nat'l Life Ins., 737 S.W.2d 312, 314 (Tex. 1987) ("Due process requires an opportunity to confront and cross-examine adverse witnesses."). Assuming without deciding that the auditor appointed by the court should be considered an adverse witness, which Watkins disputes, we nevertheless conclude that proceeding to trial would not defeat the substantive right regardless of the outcome.[3] Bertucci can preserve error for appeal as to the denial of his right to cross examination by providing an offer of proof or a bill of exception. See Tex. R. Evid. 103(a)(2) (providing for offer of proof); Tex.R.App.P. 33.2 (providing for bill of exception). Although mandamus relief may lie where the proverbial bell could not be unrung, this is not that case.[4]

         Bertucci, citing In re Garza, claims that his "ability to present a viable claim or defense at trial is either completely vitiated or severely compromised" and therefore mandamus review is merited. 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam) (citing Walker, 827 S.W.2d at 843). However, in Walker¸ which Garza cites, the Texas Supreme Court explained that "the relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources." 827 S.W.2d at 843. Generally, this has meant "a denial of discovery going to the heart of a party's case" because that party is then prevented "from developing essential elements" of their claim or defense. Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding); see H.E.B., 492 S.W.3d at 302, 304 (granting mandamus relief after trial court denied HEB's motion that plaintiff be required to submit to physical examination and noting that results of requested examination "go to the heart of HEB's defense strategy").

         Here, Bertucci does not claim that he is deprived of his ability to discover information in developing the essential elements of his case-he has already deposed the auditor and attached discovery to his motion to exclude the auditor's report and testimony. Instead, he argues that he is unable to present the evidence at trial due to the report being ruled "conclusive as to the accounts stated therein." But Bertucci is free to develop a complete record by way of a bill of exception. In In re Ford Motor Co., the Texas Supreme Court considered whether an adequate remedy on appeal existed for a trial court's order excluding evidence at trial, including an expert report. 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding). The Texas Supreme Court noted that Ford already had both the expert report and the claim file and held:

Ford is free to develop a complete record by way of a bill of exception. See Tex. R. App. P. 33.2. If, after a bill is made, the trial court maintains its previous ruling and keeps the evidence from the trier of fact, the appellate court will have a complete evidentiary record on which to determine whether the exclusion was harmful. The appeal would be adequate.

Id; see Forscan Corp. v. Touchy, 743 S.W.2d 722, 724 (Tex. App-Houston [14th Dist] 1987, orig. proceeding) ("[R]elators have failed to show they have no adequate remedy on appeal. The evidence that will be excluded by the trial court is still available to them and may be presented for appellate review by bill of exception."). Although Bertucci argues that an offer of proof "is not a viable solution," he fails to explain why a bill of exception in this case would not provide an adequate appellate remedy.[5]

         Bertucci asserts that "the trial court's ruling is analogous to passing a death sentence" as "the verdict will be inherently constrained by the conclusive effect of the Report rather than the contest of admissible evidence" and cites cases concluding that an adequate appellate remedy does not exist for death penalty sanctions. See Garza, 544 S.W.3d at 842-44 (noting that if records and employee testimony are excluded from trial, then claims will be significantly compromised, even if not completely vitiated, and therefore appeal does not provide adequate remedy); TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 920 (Tex. 1991) (orig. proceeding) ("We therefore hold that when a trial court imposes discovery sanctions which have the effect of precluding a decision on the merits of a party's claims-such as by striking pleadings, dismissing an action, or rendering default judgment-a party's remedy by eventual appeal is inadequate, unless the sanctions are imposed simultaneously with the rendition of a final, appealable judgment."). But this is not a sanctions case nor was a pleading struck, an action dismissed, or a default judgment rendered; this case concerns whether rule 172 was properly followed to challenge an auditor's report. In contrast to the consideration of whether rule 172 was properly followed, cases involving sanctions by their very nature implicate due process concerns: "[t]he imposition of very severe sanctions is limited, not only by [rule 215], but by constitutional due process." Powell, 811 S.W.2d at 917; see id. at 918 (noting that there are constitutional limitations upon court's power to dismiss action without affording opportunity for hearing on merits and that "[w]hen a trial court strikes a party's pleadings and dismisses its action or ...


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