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 2019-06

in Re Prentis B. Tomlinson, Jr., Trustee of the Slattery Trust ( 2019 )


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  • Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00324-CV
———————————
IN RE PRENTIS B. TOMLINSON, JR., TRUSTEE OF THE SLATTERY
TRUST, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Prentis B. Tomlinson, Jr., Trustee of the Slattery Trust, filed a petition
for writ of mandamus seeking to compel the respondent trial judge to vacate his
February 12 and 14, 2019 post-judgment turnover orders in the underlying
proceeding.1 With his petition, relator included a notice of related appeal stating that
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The underlying case is John Khoury v. Prentis B. Tomlinson, Jr., Cause No. 2012-
61491, pending in the 281st District Court of Harris County, Texas, the Honorable
Christine Weems presiding.
he, in his individual capacity, had filed a related notice of appeal on March 14, 2019,
from the same trial court cause number 2012-61491, challenging the same two
turnover orders challenged in his petition, and that appeal was assigned to appellate
cause number 01-19-00183-CV. Relator’s petition contends, among other things,
that he has no adequate remedy by appeal because he, as trustee, is not a party to the
turnover proceeding where he, in his individual capacity, is the defendant and, thus,
he cannot appeal the turnover orders as trustee. In any event, relator claims that he
does not need to show lack of an adequate appellate remedy because the turnover
orders are void.
Mandamus is an extraordinary remedy, available only when the relator can
show both that: (1) the trial court clearly abused its discretion or violated a duty
imposed by law; and (2) there is no adequate remedy by way of appeal. In re Ford
Motor Co.,
    165 S.W.3d 315
    , 317 (Tex. 2005) (orig. proceeding); Walker v. Packer,
    827 S.W.2d 833
    , 839–40 (Tex. 1992) (orig. proceeding).
This Court requested and received a response to the petition. Real party in
interest John Khoury contends that the petition should be denied because relator, in
his individual capacity, is currently exercising his appellate remedy by appealing the
same two February 12 and 14, 2019 turnover orders that he challenges in this
petition. This Court also requested and received a response from the real party in
interest to relator’s emergency motion to stay enforcement of the two post-judgment
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turnover orders. Relator also filed a reply in support of his petition and a supplement
to his emergency motion stating that Khoury has recently set a contempt motion, a
request for injunction, and a motion to consolidate for a June 21, 2019 hearing in the
trial court.
A judgment creditor is entitled to assistance from a court of appropriate
jurisdiction to reach property to obtain satisfaction of a judgment and a turnover
order is one means of providing such assistance. TEX. CIV. PRAC. & REM. CODE
ANN. § 31.002(a), (b) (West 2008); see also In re Bradberry, No. 12-12-00162-CV,
    2012 WL 3201928
    , at *1 (Tex. App.—Tyler Aug. 8, 2012, orig. proceeding) (mem.
op.). Generally, turnover orders are final, appealable orders and, thus, must be
attacked on direct appeal. See Burns v. Miller, Hiersche, Martens & Hayward, P.C.,
    909 S.W.2d 505
    , 506 (Tex. 1995) (turnover order was final, appealable judgment);
see also In re Bradberry, No. 12-12-00162-CV,
    2012 WL 3201928
    , at *1 (citing
Davis v. West,
    317 S.W.3d 301
    , 309 (Tex. App.—Houston [1st Dist.] 2009, no pet.)).
Relator has an adequate remedy by appeal for which he, in his individual
capacity, is currently exercising by appealing the same two February 12 and 14, 2019
turnover orders that he challenges, as trustee, in this petition. Thus, because that
appeal remains pending under 01-19-00183-CV, for which he has not shown is an
inadequate remedy for challenging the validity of those orders, relator is exercising
his adequate appellate remedy. See
    Walker, 827 S.W.2d at 839
    –40 (mandamus relief
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is not available when adequate appellate remedy exists); see also In re Bradberry,
No. 12-12-00162-CV,
    2012 WL 3201928
    , at *2 (denying mandamus petition
because relator had not shown that appeal was inadequate remedy for challenging
turnover order).
Accordingly, we deny the petition for writ of mandamus because relator, in
his individual capacity, is exercising his adequate appellate remedy. We dismiss all
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
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