Summary
denying mandamus relief but construing petition for writ of mandamus as manifesting an intent to invoke appellate review of trial court's order and directing the clerk of the court to docket the case as an appeal in a separate cause number
Summary of this case from In re L.G.D.Opinion
No. 02-18-00377-CV
12-07-2018
IN RE S.G., Relator
Original Proceeding
Trial Court No. 233-576416-15 Before Meier, Gabriel, and Birdwell, JJ.
MEMORANDUM OPINION
Relator S.G. asks us to grant mandamus relief from the trial court's November 4, 2018 order denying her petition for modification of a February 2017 divorce decree. Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Fain, 514 S.W.3d 917, 918 (Tex. App.—Fort Worth 2017, orig. proceeding). We hold that S.G. has an adequate remedy because she has a right to an immediate appeal of the trial court's order denying her modification petition. See Tex. Fam. Code Ann. § 109.002(b) (West Supp. 2018); In re Clark, No. 01-16-00722-CV, 2016 WL 5400448, at *1 (Tex. App.—Houston [1st Dist.] Sept. 27, 2016, orig. proceeding) (mem. op.); see also In re Sec. Nat'l Ins., No. 14-11-00013-CV, 2011 WL 332712, at *1 (Tex. App.—Houston [14th Dist.] Feb. 3, 2011, orig. proceeding) (mem. op.) ("A writ of mandamus is not a substitute for an appeal."). Thus, we deny her mandamus petition. See Tex. R. App. P. 52.8(a).
We do not express an opinion concerning whether the trial court erred by denying the modification petition.
S.G. filed her mandamus petition within the time for perfecting an appeal. See Tex. R. App. P. 26.1. Because her mandamus petition manifests her intent to invoke this court's review of the trial court's order denying her modification petition, we liberally construe it to be a notice of appeal. See In re Rivera, No. 13-17-00421-CV, 2017 WL 3205845, at *1 (Tex. App.—Corpus Christi July 28, 2017, orig. proceeding) (mem. op.) (stating that a "court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction"); see also Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) ("Our consistent policy has been to apply rules of procedure liberally to reach the merits of the appeal whenever possible."); Derouin v. Dodeka LLC, No. 04-11-00085-CV, 2011 WL 2714155, at *1 n.2 (Tex. App.—San Antonio July 13, 2011, no pet.) (mem. op.) (stating that an appellate court had construed a mandamus petition as a notice of appeal). The clerk of this court is directed to docket this case as an appeal in a separate cause number; the appeal will proceed according to the Texas Rules of Appellate Procedure. See, e.g., Tex. R. App. P. 12.1, 32.1, 35.1, 35.3, 38.
/s/ Wade Birdwell
Wade Birdwell
Justice Delivered: December 7, 2018