Opinion
No. 09-05-347 CV
Opinion Delivered August 4, 2005.
Original Proceeding.
Writ Denied.
Before GAULTNEY, KREGER and HORTON, JJ.
MEMORANDUM OPINION
The underlying litigation is a will contest currently on appeal to this Court in Appeal No. 09-05-030 CV, In re Estate of Terry K. Arndt. In the course of a dependent administration of the estate, the trial court ordered the sale of certain real property belonging to the estate. On motion of the administrator, the trial court signed an order cancelling a notice of lis pendens previously filed by the relator, Jane Warren. The relator contends the trial court lacked the legal authority to cancel a notice of lis pendens while the will contest was on appeal. The real party in interest contends title to the real property is not at issue because the notice of lis pendens recites that the real property is owned by the estate.
Mandamus will lie to protect the jurisdiction of the appellate court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004). The appellate court may issue temporary orders pending action on the merits of the petition. Tex.R.App.P. 52.10. In this case, however, the relator has not established that the trial court lacked jurisdiction over the proceeding at issue. We do not find that the writ is necessary to protect our jurisdiction in the appeal. Accordingly, the motion for emergency relief and the petition for writ of mandamus are denied.