       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


                                          OPINION


               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

                                                 2
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




       1
           The phrase “in terrorem” is Latin for “in order to frighten” and means “[b]y way of
threat; as a warning.” See Black’s Law Dictionary (11th ed. 2019).


                                                3
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

       2
           For example, Bertucci’s burden is not equipollent with the burden imposed by actions
that would require eight separate suits, see In re State, 355 S.W.3d 611, 615 (Tex. 2011) (orig.
proceeding) (“Requiring eight separate suits here, when only one is proper, would be a clear
waste of the resources of the State, the landowners, and the courts.”), or that would subject
litigants to endure and taxpayers to foot the bill of litigation in multiple courts and counties, see
In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding) (granting
mandamus when “a trial court improperly applied the venue statue and issued a ruling that
permits a plaintiff to abuse the legal system by refiling his case in county after county, which
would inevitably result in considerable expense to taxpayers and defendants”); In re Masonite
Corp., 997 S.W.2d 194, 199 (Tex. 1999) (orig. proceeding) (granting mandamus when “trial
court has wrongfully burdened fourteen other courts in fourteen other counties, hundreds of
potential jurors in those counties, and thousands of taxpayer dollars in those counties”). Nor has
the legislature made express findings implicating mandamus review of costly litigation. See
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–62, 467 (Tex. 2008) (orig. proceeding)
(noting that separation of powers requires courts to consider “repeated findings by the
Legislature that traditional rules of litigation are creating an ongoing crisis in the cost and
availability of medical care” and concluding that “mandamus relief is available [to review
allegedly inadequate statutorily required reports] when the purposes of the health care statute
would otherwise be defeated”).
                                                 4
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


        3
          Bertucci cites an unpublished memorandum opinion from our sister court, which on
appeal reversed the trial court’s decision entering judgment based on an auditor’s report that was
not admitted in evidence at trial because the party “was denied his right to cross-examine the
auditor and produce evidence rebutting the auditor’s report.”              See Lang v. White,
No. 05-97-00822-CV, 1999 WL 410351, at *1 (Tex. App.—Dallas June 22, 1999, no pet.)
(mem. op.) (not designated for publication). But this unpublished opinion does not address the
adequacy of an appellate remedy; indeed, it provides an example of an appeal providing an
adequate remedy to address the denial of the right to cross examine the auditor.
        4
          Examples from the Texas Supreme Court include the loss of the right to a stay, the loss
of privileged status for documents required to be disclosed, the deprivation of a contractual right
to waiver of a jury, and the failure to be informed as to the reasons for setting aside a judgment
and granting a new trial. See In re Geomet Recycling LLC, 578 S.W.3d 82, 92 (Tex. 2019) (orig.
proceeding) (“This right [to the stay], once violated, cannot be recovered by appeal.” (quoting
In re University of the Incarnate Word, 469 S.W.3d 255, 259 (Tex. App.—San Antonio 2015,
orig. proceeding))); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204,
209–10 (Tex. 2009) (orig. proceeding) (“If Columbia suffered an unfavorable verdict, it could
not obtain reversal unless it convinced an appellate court that the granting of the new trial was
error and that the error either prevented Columbia from properly presenting its case on appeal or
probably caused entry of an improper judgment. And even if an unfavorable verdict were
                                                5
               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



reversed and rendered in Columbia’s favor, Columbia would have lost the benefit of a final
judgment based on the first jury verdict without ever knowing why, and would have endured the
time, trouble, and expense of the second trial.” (citations omitted)); In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding) (holding that there is no adequate
remedy by appeal for failing to enforce contractual jury waiver because it could not be rectified
on appeal—if party wins at jury trial “its contractual right [to enforce the jury waiver] would be
lost forever”; if it loses but obtains reversal on appeal, party “would already have lost a part of
[its contractual right] by having been subject to the procedure it agreed to waive”); Walker
v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding) (noting that “a party will not
have an adequate remedy by appeal when the appellate court would not be able to cure the trial
court’s discovery error,” including when trial court erroneously orders disclosure of privileged
information such as trade secrets or documents covered by attorney client privilege).
                                                6
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


       5
           For this reason, Bertucci’s reliance on In re Coppola is unavailing. 535 S.W.3d 506,
509 (Tex. 2017) (orig. proceeding) (per curiam) (“Allowing a case to proceed to trial despite
erroneous denial of a responsible-third-party designation ‘would skew the proceedings,
potentially affect the outcome of the litigation, and compromise the presentation of [the
relator’s] defense in ways unlikely to be apparent in the appellate record.’” (quoting In re CVR
Energy, Inc., 500 S.W.3d 67, 81–82 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding))
(emphasis added)).
                                                7
(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 renders a default judgment against it for abuse of the discovery process, the court

adjudicates the party’s claims without regard to their merits but based instead upon the parties’

conduct of discovery”). And “[r]esolution of matters in dispute between the parties will be

influenced, if not dictated, by the trial court’s determination of the conduct of the parties during

discovery.” Id. at 919.

               Although Garza holds that an appeal did not provide an adequate remedy for

evidence excluded from trial as a discovery sanction, the Texas Supreme Court has not extended

Garza’s holding to contexts outside of discovery sanctions. 544 S.W.3d at 842–44. As an

                                                 8
intermediate court of appeals, we decline Bertucci’s invitation to do so here.6 See Petco Animal

Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.) (“As an

intermediate 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 Legislature supersedes them by statute.”).

               Having carefully weighed and balanced the “jurisprudential considerations” for

mandamus review, we conclude that under the circumstances of this case the benefits of

mandamus review do not outweigh the detriments and that an appeal would provide an adequate

remedy. See Prudential, 148 S.W.3d at 135–36. We deny Bertucci’s petition for mandamus.



                                             __________________________________________
                                             Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Filed: October 18, 2019




       6
           Additionally, in In re Garza, 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 providing an
adequate remedy on appeal nor cites In re Ford Motor Co.’s holding that a bill of exception
provides an adequate appellate remedy. 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding)
(per curiam).
                                                9
