590 S.W.3d 113
Tex. App.2019Background
- Christopher F. Bertucci, executor of Anthony R. Bertucci’s estate, sought mandamus relief after the probate court denied his motion to exclude a court‑appointed auditor’s rule 172 report and ruled the report “is conclusive as to the accounts stated therein.”
- Bertucci argued his exceptions to the auditor’s report were timely because the report was not verified when first filed, and he asserted the ruling would deprive him of the ability to confront/cross‑examine the auditor and to present defenses at trial.
- The probate court and the auditor (respondent Eugene Watkins, Jr.) defended the report’s admission and conclusive effect under Tex. R. Civ. P. 172 and related evidentiary rules.
- The Third Court of Appeals evaluated whether mandamus was appropriate, applying the Prudential three‑factor analysis for adequacy of appellate remedy and mandamus relief.
- The court held Bertucci failed to show there was no adequate remedy by appeal (the required second element for mandamus), noting alternatives such as an offer of proof or a bill of exception would preserve appellate review.
- The court denied the petition for mandamus without deciding whether the probate court abused its discretion on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exceptions to a rule 172 auditor’s report were timely when the report was initially unverified | Bertucci: exceptions timely because report lacked verification when filed | Watkins/probate court: report procedure was properly followed; report admissible/conclusive when verified | Court did not reach abuse‑of‑discretion on timeliness because mandamus denied for lack of inadequate appellate remedy |
| Whether the auditor’s rule 172 report is conclusive at trial | Bertucci: ruling that report is conclusive would prevent effective presentation of defenses | Watkins/probate court: rule 172 and evidentiary rules permit report’s conclusive effect as applied | Court declined to resolve; held appeal can address exclusion/conclusiveness issues |
| Whether mandamus is appropriate because appeal is inadequate | Bertucci: appellate remedy inadequate because error could force unfair settlement, preclude cross‑examination, or render trial futile | Watkins: appeal would be adequate; error can be preserved and reviewed on appeal | Court: appeal is adequate; Prudential factors (guidance, waste avoidance) do not favor mandamus here; mandamus denied |
| Whether denial of opportunity to cross‑examine auditor violates due process warranting mandamus | Bertucci: inability to cross‑examine an adverse auditor is deprivation of due process that cannot be remedied on appeal | Watkins: cross‑examination opportunity and record development are available; error preservable by offer of proof or bill of exception | Court: offer of proof / bill of exception can preserve the issue for appeal; thus mandamus not warranted |
Key Cases Cited
- In re H.E.B. Grocery Co., 492 S.W.3d 300 (Tex. 2016) (relator must show no adequate appellate remedy to obtain mandamus)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard and extraordinary‑remedy principles)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (Prudential three‑factor adequacy analysis for mandamus)
- In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) (bill of exception/offer of proof can create adequate appellate record for excluded evidence)
- In re Garza, 544 S.W.3d 836 (Tex. 2018) (appeal inadequate where discovery sanctions exclude evidence essential to presenting claims)
- Davidson v. Great Nat’l Life Ins., 737 S.W.2d 312 (Tex. 1987) (due process requires opportunity to confront and cross‑examine adverse witnesses)
- In re State, 355 S.W.3d 611 (Tex. 2011) (mandamus appropriate when repeated trials or multiple suits would cause extraordinary waste)
- In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (mandamus where final‑judgment rights would be lost if forced into a particular procedure)