in Re Robert v. Holland, Jr.

Memorandum Opinion Issued August 20, 2009 Withdrawn; Motion for Rehearing Overruled; Petition for Writ of Mandamus Denied; and Memorandum Opinion filed October 1, 2009. In The Fourteenth Court of Appeals No. 14-09-00656-CV In Re Robert V. Holland, Jr., Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS MEMORANDUM OPINION ON REHEARING Relator’s motion for rehearing is overruled. The memorandum opinion issued on August 20, 2009, is withdrawn. This memorandum opinion is substituted in its place. On July 28, 2009, relator, Robert V. Holland, Jr., filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator seeks to compel the Honorable Patricia Hancock, presiding judge of the 113th District Court of Harris County, to set aside the July 6, 2009 temporary injunction order. We deny the petition. Background On June 24, 2002, the Alkers obtained a final judgment against relator in the 113th District Court of Harris County. Including accrued interest, the amount owed to the Alkers pursuant to the judgment is $417,125.97. On October 6, 2003, the trial court entered a turnover order. On April 6, 2005, the trial court entered another turnover order, appointing Scott Mitchell as the receiver, directing the receiver to take possession and control of relator=s non-exempt tangible and intangible property, sell such property, and pay the proceeds to the Alkers up to the amount of the unpaid judgment. In 2003, relator filed the probate the will of his mother, Pauline Roe Holland, in Coke County, Texas. Relator is a potential beneficiary and was appointed executor. The estate is still being probated. On October 3, 2005, the trial court ordered relator to execute written assignments of his interest in the estate of Pauline Roe Holland and the Holland Family Limited Partnership to the receiver. On August 13, 2007, under threat of contempt of court, relator signed the assignments. The trial court declared that each assignment was effective April 6, 2005. The receiver filed an application for the distribution of estate property, a motion to remove the executor, and a motion to close the estate administration in the 51st District Court in Coke County. The motions were set for a hearing on July 8, 2009, but that hearing has been reset for September 29, 2009. On June 29, 2009, relator filed two revocations of assignment of interest in the 51st District Court, revoking the receiver=s assignments. Relator also filed two assignments of interest to relator=s daughter, dated April 5, 2005Cone day earlier than the receiver=s assignments. On July 2, 2009, the receiver attempted to notify relator of a hearing on his request for a temporary injunction by fax, but relator did not receive the notice because he was moving his office. On July 6, 2009, relator received a copy of the receiver=s application for a temporary and permanent injunction that it would be heard in the 113th District Court that afternoon. Relator notified the trial court that the notice was not sufficient and he would not be available. On July 6, 2009, the trial court signed the temporary order. The trial court found that relator had taken actions that are interfering with the trial court=s jurisdiction and the receiver=s ability to perform his court-mandated duties. The temporary injunction declared that the revocation of receiver=s assignments and the purported assignments to relator=s daughter are null, void, and of no effect. The temporary injunction restrains relator from violating the trial court=s orders and the receiver=s duties to clear title to the estate assets and to sell those assets to satisfy the judgment. Trial on the permanent injunction is set for November 3, 2009, in the 113th District Court. Analysis To be entitled to the extraordinary relief of a writ of mandamus, a relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). Mandamus may not be used as a form of interlocutory appeal. N.H. Helicopters, Inc. v. Brown, 841 S.W.2d 424, 425 (Tex. App.—Dallas 1992, orig. proceeding). Section 51.014(a)(4) specifically provides for an interlocutory appeal from an order granting a temporary injunction. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). An interlocutory appeal provides an adequate remedy. See In re Henry, 274 S.W.3d 185, 189 n.2 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (“Because Henry had an adequate remedy by appeal of the temporary injunction, mandamus was not appropriate as to the temporary injunction, and we denied mandamus as to the TRO.”). Relator, however, argues that he does not have an adequate remedy by appeal in this case because the court of appeals will not be able to hear an interlocutory appeal of the temporary injunction before trial scheduled for September 29, 2009, in Coke County. Relator asserts that he cannot prepare his defense in the Coke County case because the temporary injunction prohibits him from (1) challenging the receiver’s assignments; (2) alleging and proving the trial court did not have the right to order the assignments under threat of contempt; (3) challenging the altered effect date on the receiver’s assignments; (4) arguing that the receiver is not a proper beneficiary; and (5) arguing that the receiver’s assignments were properly revoked. However, Rule 29.3 of the Texas Rules of Appellate Procedure allows a party appealing interlocutory orders to seek temporary relief pending disposition of the accelerated appeal. See Tex. R. App. P. 29.3 (“When an appeal from an interlocutory order is perfected, the appellate court may make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal and may require appropriate security.”). Therefore, the availability of temporary relief pending an interlocutory appeal provides an adequate remedy by appeal. See In re Autonation, No. 14-05-00362-CV, 2005 WL 914182, at *1 (Tex. App.—Houston [14th Dist.] Apr. 15, 2005, orig. proceeding) (mem. op.), mand. granted on other grounds, 228 S.W.3d 663 (Tex. 2007) (“Relators have not sought temporary relief under this rule, but the availability of temporary relief on [interlocutory] appeal is sufficient to establish that relator’s remedy by appeal is adequate.”).[1] Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus. PER CURIAM Panel consists of Chief Justice Hedges and Justices Yates and Frost. [1] In our August 20, 2009 opinion, we also denied relator’s petition because it did not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.3(k); 52.7(a). Relator cured these deficiencies on rehearing.