### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00245
- CV

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

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

O P I N I O N

In this original proceeding, Christopher Bertucci s eeks mandam us relief from the probate court ’ s denial of hi s motion to exclude the court appointed auditor ’ s report b ased on his except ion s to the report

— which he alleges were timely because the report was not verified when initially f i led

— and from the prob ate court ’ s rul ing that the auditor ’ s report “ is conclusive as to
the accounts stated therein

. ” See Tex. R. Civ. P. 172 (providing proced ure for ap pointing
auditor , requiring auditor ’ s report to be ver if ied, and est ablishing de adlin e s for exceptions to

re por t ) ; Tex. R. Evi d. 706 (requiring admission of verified r ule 172 report and pe rmitting
evide nce supporting exc eptions contradicting report “ [i]f a party files exceptions to the report ” )

. After receiving Bertucci ’s petition, w e req u e sted a re sponse from Eugene Watkin s, Jr. Because
Bertucci failed to mee t his bur den 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 I

n r e H.E. B . Gro cery Co. , 492 S.W.3d 300, 302 (Tex . 201 6 ) (orig. proceeding) (per curiam) (noting that to establish right to mandamus, relator must show both that trial court
abused i ts discretion and that no adequate appellate remedy exists ).2 “ As an extra or dinary remedy , mandamu s is available only in l imit e d
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 5 66, 580 (Tex. 2018) (quoting Wal ker v . P acker , 827 S.W.2d 833 , 8 40 (Tex. 1992) (orig. proceeding))

. M andamus can correct clear error in exceptional cas e s, but we mus t be mindful that the benefits of mandamus review are easily lost
b y overuse
. In re Prudential In s. Co. of Am. , 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding)

. M andamus review may unduly interfere with trial court proceedings, distract appellate court attention to issue s th a t are unimportant both to the ultimate disposition of the case
at hand an d to the uniform development of the law, and add unpro ductively to the expense a nd delay of civil litigation. Id.

To merit mandamus review, the relator must establish that there is “ no adequate remedy b y appeal

. ” Id. at 135

– 36. The word “adequate ” i s “ 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 mandamu s review depends heavily on the circumstances presented
and is better guided by general principles than by simple rules.” Id. at 13 6

– 3 7

. Prudential instructs us to consider three primary “ jur isprudential considerations ” that may wei gh in favor of

“ mandam us review of s ignificant ruling s in e xceptional cases ” : (1) is mandamus review

“ essential to preserve imp ortant substantive and procedural rights from impairment or loss , ” (2) does it “ all o w t h e appellat e courts to g ive needed and he lp ful direction to the l aw that would otherwise prove elusive in appeals from final judgments , ” and (3) does it “ spare pr ivate parties and the public the time and money utterly wasted enduring eventual reversal o f3

improperly co nd u c ted proce edings. ” Id. at 136. Bertucci relies p rimar ily on th e first
Prudential consideration, which we consider after evaluating the second and thir d
Prudential considerations.

M andamus review in this case would not provide “ needed and helpful direction to
the law that would otherwise pro ve elusiv e in appeals from fina l judgments

. ” Id

. Bertucc i

e f f ectively admits that the ability to pr ovid e guidance is av ailable on appeal, noting that “[p]reviously reported decisions addressing the legal effect of unverified audit reports ha ve arisen on appeal ra th er than in mandamus proceedings

. ” Ot her than a ss er t ing that “ rulings [ on a

r ule 172 audit ] ca n produce an in terrorem effect that will force unfair settleme n t s , ” 1 Bertucci
does not explai n why guidance would “ pro v e elusive i n appea ls

. ” Nor does he expl ai n how the ruling would “ produce an in terr orem e ff ec t ” when his counter claim includes a re ques t for attorney ’ s fees under multiple statut ory provisions

. C f. In re Gulf Expl., LLC , 289 S.W .3d 836, 842 (Tex. 2009) ( orig. proceeding) ( noting that “ st anding a lone, delay and expense genera lly do
not rend er a fi n al appeal inadequate ” and “ [t] hat is espe c ially true here ” when prevailing party

“ can recover its fees and expenses ” )

.

I n some exce ptional circumstances, the Texas Supreme Cou rt has concluded that
“t he 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 S tate , 355 S.W.3d 611, 615 (Tex. 2011) (orig. proceeding). The rec or d in this case, however, does not

1 The p hrase “ i n terrorem ” is Latin for “ in order to frighten ” and me an s “ [b]y way of threat; as a warning. ” See Black ’ s L aw Diction ary (11th ed. 2019).4

rise to that exceptional level. 2 Admittedly, if Bertucci is correct, he may be burdened with delay and costs associated with conducting a se cond trial fo l lowing an appeal. Although Bertucci’s
purp orted burden is not in si gn ificant, 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 ordi nary. See Ch a mbers

- Liberty Ctys. Navigation Dist. v. Sta te , 575 S.W.3d 339 , 35 6 (T ex. 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. proc eeding) (per c uriam) (noting “the extraordinary nature of the remedy” in “a

man da mu s proceeding”).

Having concluded that the second and third Prudential considerations do not weigh in favor of mandamus review, w e turn to the first Prudential consideratio n

— the primary

reason courts have granted mandamus re lief

. See In re McAllen Me d. C tr., Inc. , 275 S.W.3d 458,
46 5 (Tex. 2008) (orig. proceeding) ( “ The most frequent use we have made of mandamus relief

2 For e xa mpl e, Bertuc ci ’ s burden is not equipol lent wi th th e burden imposed by actions that would req uire eight separate suits, s ee In re State , 355 S.W.3d 611, 615 (Tex. 2011) (orig. proceeding) ( “ Requiring eight separate suits here , when only one is prop er, wou ld be a clear wast e of the res ources of the St a te, the landowners, and the courts. ” ) , or th at would sub ject litigants to endure and taxpayers to fo o t t he bill of litigation in multiple cou rts and counties , see In re Team Rocke t, L.P. , 256 S.W.3d 257, 262 ( Te x. 2008) (or i g. proceeding) (granting mandamus when “ a trial court imp roperly applie d the venue statu e and issued a ruling that permits a plainti ff t o a buse the legal s y stem by ref il ing his case in county after cou nty, which would inevitably result in co ns ide rable exp e ns e to taxpayers and defendants ” ); In re Masonite Corp. , 997 S.W.2d 194 , 199 (Tex. 1999) (orig. procee ding) ( granting mandamus when “ tri al court has wrongf

u lly burdened fourteen other courts in fourtee n other co unties, hundreds of potential ju ror s in th os e c ounties, and thousands of taxpayer dollars in those counties ” )

. Nor has t he legislature ma de express findings implicating mandamu s re view of co stly litigation

. See In re McAllen Med. Ctr., Inc. , 27 5 S.W.3d 4 58, 46 1

– 62 , 46 7 (Te x. 2008) (o ri g. proceedin g) ( noting tha t separation of powers requires courts to consider “ r epeat ed fi ndings by the Legislature t hat traditional r ules of liti gati on are cre ating an ongoing c risi s in the cost and availability of medical c are ” and co ncluding that “ mand am us relief is a v ailable [to review allegedly inadequate statutorily required rep orts] when the purp oses of the health care statute wo u ld otherwise be defeated ” )

.5

involves c ases in which the very act o f proceeding to t r ial

— regardle ss of the outcome

— w o ul d
d efeat the substanti ve right involved. ” )

. B er tucci first argues that he will be deprived of his due process rig ht to cross exami n e th e auditor who produced the rule 172 re port as an adverse
witness

. See Davidson v. Gr eat Nat ’ l Lif e Ins

. , 737 S.W.2d 312, 314 (Tex. 1987) ( “ Du e process requires an op po rtunity to conf ront and cross

- examine advers e witnesses. ” )

. Assuming without deciding that the auditor appo i nt ed by the court should be considered an adve rse witness, which Watkins disp utes, we nevertheless conclude that proceedi ng t o trial would not de fe at the substantive right regardless of the outcom e
. 3 Bertucci can preserve error for appeal as to the
denial of h i s right to cross examination by provid ing an offer of pr oo f or a bill o f exception

. See
Te x. R

. Evid. 10 3(a) (2) (p roviding for offer of pr oo f); Tex. R. App. P. 33.2 (providing for bill of exception)

. Although mandamus relief may lie where the pr ov erbial bel l c ou l d not be unrung , this is not that case. 4

3 Bertucci cites an unpublished memorandum opinion fr om o ur sis ter court , which on appe al rev er se d the tr ia l c ourt ’ s decision enteri ng judgment based on an a udito r ’ s report that was not admitted in e vidence at t rial because the party “ was denied his right t o cross
- examine the auditor and produce evidence reb utti ng the auditor ’ s report. ” See Lang v. W hite , No

. 05

- 97

- 00822

- CV, 1999 WL 4 10351, at * 1 ( Tex. App.

— D allas June 22, 1999, no pet.) (mem. op. ) ( not de sign ated f or pub l ication)

. But this unpublished opinion does not address the adequacy of an appellate r emed y; ind eed, it provides an example of a n appeal p ro vid ing an adequate remedy to address the denial of the right to cross examine the audit or
.

4 Examples from the Texas Supreme Court include the loss of the right to a stay, the l o s s of privileged statu s f

or docu ment s required to be d isclosed , th e d eprivat ion of a contractual right to waiver of a jury, and the failure to be informed a s to the reasons for setting aside a j udgment an d gra nting a new trial

. See In re Geo met Recycling LLC , 578 S .W.3d 82, 92 (Tex. 201 9 ) (orig. proceeding) ( “ This r ig ht [to the s tay], once violated, cannot be recove red by appeal.” (quoting In re Univ ers ity of the Inca rnate Word , 469 S.W.3d 255, 259 ( Tex. App.

— San Anton io 2015, orig. proceeding) ) ) ; In re C olum bia Med

. Ctr. of La s Colinas, Subsidiary, L.P. , 290 S.W.3d 20 4, 209

– 10 (T ex. 2009) (orig. proceeding) ( “ If Col umbia suffered an unfavorable verdict, it could not o btain reversal unless it convince d an appellate cour t that the granting of the new t rial was error a n d that the error eith er prevented Columbia from pro pe rl y presenti ng its case on appeal or probably cau sed entry of an improper judgment. An d even if an un favorable verdict were6 Bertucci , citing In re Garza , claim s th at his “ ab ility to present a v iable claim or
de fe nse a t trial is either completely vi tiated or sever ely compromis ed ” and therefore mandam us review is merited. 544 S.W.3d 836, 840 (Tex. 2 0 18 ) ( orig. proceeding) (per curiam) (citing
Wa lker , 827 S.W.2d at 843)

. Howev er, i n Walker
 ̧ which Garza cites , t he T e xas 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 t r ia l w ould be a wast e of judicial resources. ”
827 S.W. 2 d at 843. Generally , th is has m ea nt “ 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. A bl e S upply Co. v. Moye , 898 S.W.2d 766, 772 ( T ex. 1995) (orig. proceeding );

see H .E.B

. , 4 92 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 res u lt s o f requested examination “ go to the heart of H EB ’ s defe nse strategy ” )

.

H ere , Be rt uc ci do es not claim that he is deprived of his ability to discover information in developing the es sential elements of his case

—he has already deposed the au d i to r and attached discovery to his motion to ex clud e the audi tor ’ s report and testimony . Instea d, h e
arg ues that he is unable to present the evidence at trial due to the report being ruled “ conclusive

reversed a nd rendered in Colu mbia ’ s favor, Columbia would hav e los t th e benef i t of a fina l judgment based on the first jury verdi ct w ithout eve r knowing why, and would have endured the time, trouble, and expense of the second tr ial. ” (citations omitted) ) ; In re Prudential Ins. Co . of A m. , 148 S.W.3d 124, 13 8 (Tex. 2 004) (ori g. proc e eding) ( h o l d ing that there is no adequate remedy by a pp eal for fa iling t o enforce contractual jury w aiver because it could not be re ctifie d on appea l

— if party wins at jury trial “its contractual right [to e nforce the jury waiver] would b e los t fore ver ” ; if it loses b ut obtains reversal on appeal , party “wo ul d already ha ve lost a part of [its contract ual right] by having been subject to t he procedu re it agreed to waive ” ) ; Walker v. Packer , 827 S.W.2 d 833 , 842 (Tex. 1992) (orig. proceed ing) ( noting th a t “ a party will no t have an ad equate remedy by appeal when t he appell ate court would not be able to cur e the trial court ’s discovery error , ” including when trial court erroneously order s disclosure of pr ivile g e d information such as trade se crets or docume n t s covered by atto rney clien t privilege)

.7

as to the accounts state d t herein

. ” But Bertucci is free to develop a complete record by way of a
bill o f exceptio n. In In re Fo r d M o tor Co. , the Te xa s Supr e me Court considered whe ther an adequate remedy on appeal exist ed for a trial court ’ s order excluding evidence at trial , inclu ding

an expert report

. 988 S.W.2d 714 , 721 (Tex. 1998 ) (orig. proceeding)

. The Texas Supreme
Court noted that Ford alrea dy h ad both th e expert report and the claim file and held:

Ford is free to develop a compl ete 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 r uling and keeps the evidence f ro m the trier of fact, the appel late court w il l have a complete evident iary record on whic h t o determine whether the excl usion was harmful. The appeal would be adequate.

Id. ; see Forscan Corp. v. Touchy , 743 S.W.2d 722, 724 ( Tex. App.

— Houston [14th D i s t. ] 1 98 7, orig. p roceeding ) ( “[R] elato rs have fai led to show they have no adequate rem edy on appeal. The evidence that will be excluded by the trial court is sti ll available to them and may be presented for appellate r eview by b ill of exception. ”)

. Alt h o ug h B er tucci argu es that an offer of proof “ is

no t a viable solution , ” he fails to explain why a bill of exception in this case woul d no t provide

an adequate appellate reme dy

. 5

B ert ucci asserts that “ the trial court ’ s ruling is analogous to passing a death

se nt enc e ” as “ the v erdict will be inherently constrained by the conclusive effect of the Report
rather than the contest of admi ss i b le evid ence ” and cites cases concluding that a n a dequate appellate remedy does not ex ist for de ath penalty sanc tions. See Ga rz a , 544 S.W.3 d at 84 2

– 44

5 For this r e as on, Bertucci ’ s reliance on In re Coppola i s unavailing. 535 S.W.3d 506, 5 09 (Tex. 2017) (orig. proceeding) (per curiam) ( “ Allowing a case to proceed to trial despite erroneous denial of a responsibl e
- thi rd

- party d esignation ‘ would skew the proceedings , po tent ially af

fect the outcome of the l itigation, and compromise the presentation of [the relator’s] defense in ways unlikely to be apparent in the appellate record

. ’ ” (quoting In re CVR Ene rgy, Inc. , 500 S.W.3d 67, 81

– 82 (Te x. App.

— Hous ton [1st Dist.] 2 0 16 , or ig. proc eeding ) ) (emphasis added) ).8

(noting that if records and employee testimony are excluded from t rial , then claims will be significant l y c o mpromised, even if not completely vit iated , an d therefore appeal does not provide adequate r emedy) ; TransAmerican Nat. Gas C or p. v. Powe ll , 811 S.W.2d 913, 9 20 (Tex. 1991) (orig. proceeding) ( “ We the refore hold that when a trial court imposes discover y sa n ctions which have the effect of precluding a d ecision on the merits of a party ’ s c laims

— such as by striking pleadings, dis mi ss ing an act ion, or rendering default judgment

— a party ’ s remedy by eventual appeal is inadequate, unless the sanctions are impo s e d s imultaneously with the rendition of a
final , a ppealable judgment. ” )

. But this is not a sanc tions case nor was a pleading st ru ck, an

act ion dismisse d, or a default judgment rendered ; this case concerns whether rule 172 was properly followed to challen g e a n auditor ’ s report. I n contrast to th e cons ide ration of whet her

r ule 172 was prope rly follow ed , cases involving sanctions by t heir very natur e implicate due
process concerns : “ [t] he imposition of very sever e sanc tions is limited, not only by [ rule 21 5 ] , but by co ns t itutional due process. ” Powell , 81 1 S.W.2d at 91 7 ; see id. at 918 (not ing that t here
are constitutional limita ti on s u pon cou rt ’ s power to dismiss action without affording opportunity for hearing on merits and that “ [w]hen a trial court st r i kes a pa rty ’ s pleadings and dismisses its
acti on o r renders a default judgment against it for ab use of the discovery process, th e court adju dicates the party ’ s claims without re gard to their merits but based instead upon the parties ’ conduct of discovery ” )

. And “ [r] es o lution of matters in dispute bet ween the parties will be influenced, if not dictat ed, by the trial court ’ s deter mi na tion of th e conduct of the parties during discovery. ” Id. at 919.

Although Garza holds tha t a n appeal did not provide an adequate remedy for
evidence excluded from trial as a discovery sanction , the Texas Su preme Cour t has not exten ded
Garza ’ s hol di ng t o cont ex ts outside of discovery sanctions

. 544 S.W.3d at 84 2

– 44

. A s an9

i ntermediate court of appeals, we decline Bertucci ’ s invitation to do so here

. 6 See Petco Anima l Supplies, Inc. v. Schuster , 144 S.W.3d 554, 5 65 ( Tex. App.

— Austin 2004, no pet. ) ( “ As an inte rmediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them
or the Texas Le gislat ure supersedes them by statute

. ” )

.

Hav ing care fu l l y weighed an d b alanced the “juris prudential c onsiderations ” for mandamus review, we co nclude that under the circ umstances of this case the benefits of
mandam us review do not outw eigh the det riments and th at a n appeal would provide an adeq u a te

r emedy

. See Pru dential , 148 S .W

. 3d at 135

– 36. We deny Bertucci ’ s petition for mandamus.

_____________________________ _____________ Me liss a Go o dwi n , Justice
Be f ore Justices Goodwin, Baker, and Kelly
Filed: October 18, 2019

6 Additionally, i n In re G arza , it appears that the parties did not raise the effect of an offer of proof or a bill of exception as the opinion neither weighs those options as provi ding an ad equate remedy on app ea l nor cites In re Ford Motor Co. ’ s ho lding that a bill of exception provides an adequate appellate remedy

. 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam)

.