Opinion
NO. 09-17-00386-CV
10-27-2017
IN RE SANDRA NG
Original Proceeding County Court at Law No. 2 of Montgomery County, Texas
Trial Cause No. 16-02-01717
MEMORANDUM OPINION
Sandra Ng, in her limited capacity as surviving heir of Dennis Ng, filed a petition for a writ of mandamus compelling the trial court to vacate its October 23, 2017 order requiring Sandra Ng to file an accounting on behalf of Dennis Ng, the former trustee of the Travis Allen Morgan Trust. Frank Morgan, the successor trustee of the Trust, responded to the mandamus petition.
The trial court granted Morgan's request for an accounting under section 113.151(b) of the Texas Property Code after signing a take-nothing judgment against Morgan. See Tex. Prop. Code Ann. § 113.151(b) (West 2014). Ng argues the trial court abused its discretion by ordering the widow of the former trustee to perform a formal accounting under section 113.151(b) after a unanimous jury absolved her deceased husband of any wrongdoing related to trust management or trust assets. She argues a remedy by ordinary appeal is inadequate because the trial court required the formal accounting by October 31, 2017, and has indicated that it intends to conduct further proceedings relating to the accounting, despite having entered a final take-nothing judgment.
After this original proceeding was filed, Ng perfected an appeal by filing a notice of appeal of the trial court's Order on Plaintiff's Request for Accounting, signed on September 14, 2017. The order was amended on October 23, 2017, the same date that the trial court signed an amended judgment on the jury's verdict. Ng argues mandamus should issue because it is questionable whether the judgment is a final judgment, but together the amended final judgment and the amended order granting Morgan's request for an accounting contain unequivocal language of finality, which made the order appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).
Mandamus is an extraordinary remedy that is available when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Mandamus is not available to compel what may be accomplished by supersedeas. See In re Carter, No. 01-14-00046-CV, 2014 WL 348540, at *1 (Tex. App.—Houston [1st Dist.] Jan. 30, 2014, orig. proceeding) (mem. op.); see also Tex. R. App. P. 24.2(a)(3). After reviewing the petition and the response, we conclude that Ng has not shown that she has no adequate remedy by appeal. Accordingly, we deny the petition for a writ of mandamus and the motion for temporary relief. See Tex. R. App. P. 52.8.
PETITION DENIED.
PER CURIAM Submitted on October 27, 2017
Opinion Delivered October 27, 2017 Before McKeithen, C.J., Horton and Johnson, JJ.