




NO








NO. 12-10-00009-CV
 
                         IN
THE COURT OF APPEALS
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
 
 
                                                                             '     
IN RE: DR. SHIRLEY PIGOTT,
RELATOR                                                          '     ORIGINAL
PROCEEDING
 
                                                                             '      
 


                                                      MEMORANDUM
OPINION
            In
this original proceeding, the relator, Dr. Shirley Pigott, seeks a writ of
mandamus directing the respondent to vacate an order granting a temporary
injunction signed on November 20, 2009.[1] 
We deny the petition.
 
Backround
            In
the underlying lawsuit, Dr. Keith Miller sued Dr. Shirley Pigott and Dr. Steven
Hotze for libel and slander.  Both defendants are whistleblowers who publicly
claim that Dr. Miller engaged in improper and unethical conduct while he was a
member of the Texas Medical Board.  Dr. Miller sought and obtained an ex parte
temporary restraining order enjoining Dr. Pigott from attending any proceedings
in the case, such as depositions and mediation, that are not conducted before
the trial court.  Dr. Miller then obtained the temporary injunction that is the
subject of this proceeding.  
The
order granting the temporary injunction, signed on November 20, 2009, restrains
Dr. Pigott from engaging in various conduct, including coming within one
thousand yards of Dr. Miller, his family, or his employees.  However, the
prohibitions in the order do not apply to “Courtroom proceedings.”  The order
further provides that any deposition or mediation that Dr. Pigott chooses to
attend must be held in the Shelby County district courthouse, and the parties
must arrange for, and equally bear the cost of, providing security for any such
deposition or mediation.  The order does not require a bond nor does it state
the reason for its issuance.
On
November 25, 2009, Dr. Pigott filed a motion requesting a hearing to determine
the amount of the bond for the temporary injunction.  On the same date, Dr.
Pigott also filed a motion requesting the trial court to reconsider its
issuance of the temporary injunction.  In her motion, Dr. Pigott objected that
(1) Dr. Miller failed to produce evidence establishing grounds for the
temporary injunction, (2) the order does not require the posting of a bond, and
(3) the order does not include findings of fact that justify the issuance of
the injunction.  In a subsequent telephone hearing on a related matter, Dr.
Pigott’s counsel called the motion and objections to the trial court’s
attention.  However, the trial court did not rule on Dr. Pigott’s motion or her
objections.
            Dr.
Pigott filed a notice of appeal from the November 20, 2009 injunction order, as
well as the order “rendered on 12/4/09, during a telephone hearing, on
Defendant Hotze’s Motion to Compel depositions.  (The Order rendered on 12/4/09
ordered Defendant Pigott to abide by the temporary injunction entered on
11/20/09).”  She also filed this original proceeding.
 
Availability of Mandamus
            A
writ of mandamus is available only when the trial court has clearly abused its
discretion and the relator lacks an adequate appellate remedy.  In re
Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). 

As
a general rule, with a few exceptions that are primarily statutory, an appeal
may be taken only from a final judgment.  Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001).  One such statutory exception is an order
granting a temporary injunction.  See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon 2008)
(authorizing appeal from interlocutory order granting temporary injunction). 
An interlocutory appeal provides an adequate remedy for challenging an order
granting a temporary injunction.  In re Holland, No. 14-09-00656-CV,
2009 WL 3154479, at *2 (Tex. App.–Houston [14th Dist.] Oct. 1, 2009, orig.
proceeding) (mem. op. on reh’g) (per curiam).  Therefore, Dr. Pigott cannot
establish that she is entitled to mandamus relief.  Accordingly, we deny
her petition for writ of mandamus.
                                                                                                    
JAMES T. WORTHEN    
                                                                                                                
Chief Justice
Opinion delivered March 17, 2010.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
(PUBLISH)




[1]  
The respondent is the Honorable Charles R. Mitchell, Judge of the 273rd
Judicial District Court, Shelby County, Texas.  The real party in interest is
Dr. Keith Miller.


