In re Brian Christopher Orsak Appeal from 306th District Court of Galveston County (opinion)

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Opinion issued August 25, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-21-00481-CV ——————————— IN RE BRIAN CHRISTOPHER ORSAK, Relator Original Proceeding on Petition for Writ of Mandamus OPINION Texas Rule of Civil Procedure 171 authorizes a trial court to appoint a master in chancery only in “exceptional cases,” lest the court saddle litigants with the costs of “referring matters which the judge might easily hear and determine for himself.” Simpson v. Canales, 806 S.W.2d 802, 808 (Tex. 1991) (internal quotations omitted). The Texas Supreme Court has held that the congestion status of a trial court’s calendar cannot transform an otherwise unexceptional case into a case warranting the appointment and expense of a special master. Simpson, 806 S.W.2d at 811. Relator Brian Christopher Orsak’s mandamus petition presents the question whether the trial court abused its discretion in appointing a master to hear discovery disputes regarding the “value and character of the community and separate estates” in the underlying divorce case, in light of the court’s congested docket, exacerbated by the Covid-19 pandemic and a fire in the Galveston County courthouse. We hold that these circumstances did not transform this divorce proceeding into an exceptional case warranting the appointment of a Rule 171 master in chancery. We further hold that the Texas Supreme Court’s Fortieth Emergency Order Regarding the Covid-19 State of Disaster did not authorize the trial court to disregard Rule 171’s criteria for appointing a master in chancery. We therefore conditionally grant Brian’s petition for writ of mandamus.1 Background The underlying case involves a divorce and custody suit between relator Brian Christopher Orsak and real party in interest Mary Margaret Orsak. In that divorce case, Mary sought discovery from Brian regarding several corporate entities for purposes of characterizing separate and community property and valuating the interests in such property. Those entities include the following: (1) O-2 Holdings, LLC, a Texas limited liability company, (2) 4010 Facility Holdings, LLC, a Texas 1 The underlying case is In the Matter of the Marriage of Mary Margaret Orsak and Brian Christopher Orsak, Cause No. 19-FD-2884, in the 306th District Court of Galveston County, Texas, the Honorable Anne B. Darling presiding. 2 limited liability company, (3) 23330 Emergency Center, LLC, a Texas limited liability company, (4) BO2 Investments, LLC, an Illinois limited liability company, (5) Beaumont Elite Emergency Center, (6) Elite Medical Center, LLC, a Nevada limited liability company, (7) Facilities Management Group, LLC, a Texas limited liability company, (8) Inception Fertility Ventures, (9) Las Vegas Facility Holdings, LLC, a Nevada limited liability company, (10) St. Michael’s Emergency Center, LLC, a Texas limited liability company, (11) St. Michael’s Medical Hospital, LLC, a Texas limited liability company, (12) Texas Gun Club, LLC, a Texas limited liability company, (13) TGC Properties, LLC, a Texas limited liability company, (14) Triple Tap Alamo League City – Holdings, LLC, a Texas limited liability company, (15) Triple Tap Ventures, LLC, a Texas limited liability company, and (16) The Woodlands FEC, LLC, a Texas limited liability company (collectively referred to as the “Nonparty Entities”). Brian responded to these discovery requests by asserting that he did not have any documents responsive to Mary’s requests in his possession, custody, or control. Mary then sought the requested documents directly from the Nonparty Entities, serving them with subpoenas and depositions on written questions. Mary ultimately entered into an agreement with the Nonparty Entities pertaining to the scope of discovery, including the production of responsive documents. 3 Dissatisfied with the Nonparty Entities’ discovery responses, Mary filed motions to compel against the Nonparty Entities and Brian. She also filed a “Motion to Appoint Master in Chancery/Discovery Master,” requesting appointment of a discovery master on the grounds that the “divorce action involve[ed] a large and complex marital estate,” and that Mary and Brian “own an interest in a number of complex business entities.” Mary further asserted that Brian and the Nonparty Entities had “been uncooperative with discovery requests,” leading to the filing of these motions with the trial court to resolve the various discovery disputes. Reasoning that “it would take significant time on [the trial court’s] docket to resolve the outstanding discovery disputes and any future discovery disputes with respect to the documents and information needed with respect to the business entities,” Mary requested that the trial court “refer all discovery disputes involving documents or information requested regarding any business entity in which [] either party owns an interest to a Master in Chancery/Discovery Master.” Brian objected to Mary’s master-appointment as “baseless,” arguing that Mary had not established good cause or the existence of exceptional circumstances as required by Texas Rule of Civil Procedure 171. On August 19, 2021, the trial court held a hearing on Mary’s motion. Over Brian’s objection, the trial court considered the motion without evidence presentation or witness testimony, relying on the arguments of counsel. 4 On August 20, 2021, the trial court entered its “Order of Reference on Appointment of Master in Chancery” (the “appointment order”). In the appointment order, the trial court concluded “that good cause ha[d] been shown for the appointment of a master in chancery, as the matters and issues in this case are exceptional and complicated.” The trial court also found that the “appointment of [a] Master in Chancery will aid the performance of this court’s duty to timely rule on discovery issues related to the value and character of the community and separate estates, which have been delayed as a result of [the trial court’s] docket, the ongoing [Covid-19] pandemic, and the recent fire in the Galveston County Courthouse.” The trial court appointed “retired Senior District Judge the Honorable David Farr” as master in chancery and outlined the scope of his authority to act. The appointment order limited the master in chancery’s authority to “discovery disputes existing between the parties and any non-party . . . so long as [the] discovery dispute is related to the characterization of the separate and community property of the parties and valuation of those interests.” The trial court, however, further vested him with power to “authorize, approve, limit and/or order any and all other forms of discovery permitted by the Texas Rules of Civil Procedure,” as well as with the authority to “subpoena, sua sponte, any witness to a hearing, including the parties to order the production of any documents from the parties and to subpoena any documents from third parties.” In addition, the trial 5 court authorized him to award attorney fees and find parties in contempt “for failure to comply with any decision and to issue sanctions regarding any finding of contempt.” Finally, the trial court authorized him to “charge for his services rendered . . . at the rate of $350.00 per hour,” and further “ORDER[ED] that BRIAN ORSAK . . . deposit the sum of $10,000.00 to the Master in Chancery,” as “security for costs for reasonable and necessary fees and expenses.” Brian requested a stay of the appointment order “while he pursued his appellate remedies,” but the trial court denied the request. Brian subsequently filed his mandamus petition, and we stayed the enforcement of the appointment order pending the resolution of the mandamus petition.2 Standard of Review Mandamus is an extraordinary remedy that is only available in limited circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). 2 On September 30, 2021, several of the Nonparty Entities, including O-2 Holdings, LLC, 4010 Facility Holdings, LLC, 23330 Emergency Center, LLC, BO2 Investments, LLC, Beaumont Elite Emergency Center, Elite Medical Center, LLC, Facilities Management Group, LLC, Las Vegas Facility Holdings, LLC, St. Michael’s Emergency Center, LLC, St. Michael’s Medical Hospital, LLC, Texas Gun Club, LLC, and TGC Properties, LLC, filed a separate petition for writ of mandamus, also challenging the trial court’s August 20, 2021 order appointing the master in chancery. The Nonparty Entities’ mandamus petition was docketed in this Court as appellate case number 01-21-00522-CV. The Nonparty Entities’ mandamus petition largely asserts the same arguments asserted in Brian’s mandamus petition. However, because the Nonparty Entities’ mandamus petition was docketed as a separate appellate case number, we will issue a separate opinion disposing of their petition. 6 Mandamus relief is appropriate only where the relator establishes that the trial court has abused its discretion, and the relator has no adequate remedy by appeal. See In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). A trial court abuses its discretion where “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. Texas Rule of Civil Procedure 171 governs the appointments of masters in chancery. TEX. R. CIV. P. 171. A trial court’s order appointing a master in chancery or special discovery master is reviewable by mandamus because requiring parties “to reserve their complaint for appeal would be to deny them any effective relief from the trial court’s order.” See Simpson, 806 S.W.2d at 812. The “appointment of a master lies within the sound discretion of the trial court and should not be reversed except for a clear abuse of discretion.” Id. at 810. Rule 171’s requirements set boundaries on the trial court’s discretion, however. Unless the parties agree to the appointment of a master in chancery, “every referral to a master in chancery must comply with [R]ule 171.” In re Coastal Nejapa, Ltd., No. 14-09-00239-CV, 2009 WL 2476555, at *3 (Tex. App.—Houston [14th Dist.] Aug. 13, 2009, orig. proceeding) (mem. op.). Abuse of Discretion Brian argues that mandamus relief is warranted to correct three abuses of the trial court’s discretion. First, Brian contends that the trial court abused its discretion 7 by appointing the master in chancery without any evidence that this is an “exceptional case,” as required by Texas Rule of Civil Procedure 171. Second, Brian argues that the trial court abused its discretion by vesting the master in chancery with “unlimited powers to sua sponte subpoena witnesses and evidence regardless of whether a party has requested it.” Third, Brian argues that the trial court abused its discretion by requiring him “to pay the master in chancery $10,000 as security for costs that have not yet accrued, contrary to” Texas Rule of Civil Procedure 143. Because Brian’s first issue is dispositive, we do not reach the other issues presented by Brian’s mandamus petition. A. Appointment of a Master in Chancery in “Exceptional Cases,” and for “Good Cause” Texas Rule of Civil Procedure 171 governs the appointments of masters in chancery. The rule states in relevant part: The [trial] court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the [trial] court, and shall be under orders of the [trial] court, and have such power as the master of chancery has in a court of equity. TEX. R. CIV. P. 171. By its plain language, Rule 171 restricts the appointment of special masters to “exceptional cases” only; routine matters do not qualify. The Texas Supreme Court minced no words in explaining that limitation’s significance, concluding that the rule 8 “permits masters to be used but only in limited circumstances so as to avoid the abuses that centuries of experience have proven accompany a broader, systematic use.” Simpson, 806 S.W.2d at 810. Systematic use of masters would threaten to deprive citizens of the judiciary’s expertise, as judges would be free to delegate their decision-making authority to special masters. Id. Routine appointments promised to drive up litigation costs, by making litigants pay for services that should already be encompassed by ordinary court costs. Litigants “should not be burdened with the costs of referring matters which the judge might easily hear and determine for himself.” Id. at 808 (citations omitted). Rule 171 protects litigants from these threats by barring courts from appointing masters in chancery in any case “other than exceptional cases and not then except for good cause.” Bell v. Bell, 540 S.W.2d 432, 437 (Tex. Civ. App.— Houston [1st Dist.] 1976, no writ). This standard “cannot be met merely by showing that a case is complicated or time-consuming, or that the court is busy.” Simpson, 806 S.W.2d at 811. Rather, Texas courts have found “sufficient justification for the appointment of a master to supervise discovery questions which require extensive examination of highly technical and complex documents by a person having both a technical and a legal background.” In re Harris, 315 S.W.3d 685, 705 (Tex. App.— Houston [1st Dist.] 2010, orig. proceeding) (internal quotations omitted). 9 In the appointment order, the trial court stated that “after reviewing the motions and responses and the evidence provided . . . [and] hearing argument and objections” of the parties, and taking into consideration “the prior hearings on discovery disputes, the numerous business entities and the differing ownership interests and organizational structures . . . and the discovery taken and the thousands of pages of quash motions filed,” the trial court was compelled to conclude that “the matters and issues in this case are exceptional and complicated, per the terms of” Rule 171. The trial court further found that the appointment would “aid the performance of [the trial] court’s duty to timely rule on discovery issues related to the value and character of the community and separate estates, which have been delayed as a result of [the trial court’s] docket, the ongoing [Covid-19] pandemic, and the recent fire in the Galveston County Courthouse.” In addition to the guidance provided by the appointment order, during the hearing on Mary’s motion for appointment of a special master, the trial court commented that “looking at all of this stuff, it is very complex.” Based on that perception of complexity, the trial court further stated that she “do[esn’t] want to go through – [she] doesn’t have time. [She] cannot go through and solve every single issue when it comes to” discovery disputes regarding the Nonparty Entities. Brian argues that there was no evidence presented to the trial court that this was an exceptional case warranting the appointment of a master in chancery. 10 According to Brian, “[t]his is a divorce case, not a case involving complex technical or scientific issues,” instead involving issues “that family courts deal with all the time: discovery related to the characterization of community and separate property and the valuation of those interests.” We examine each of the trial court’s justifications for the appointment in turn. 1. Prior Hearings on Discovery Disputes and the Length of Motions In the appointment order, the trial court specifically referenced the “prior hearings on discovery disputes,” and the “thousands of pages” of motions to quash filed by the Nonparty Entities to support the appointment. We cannot conclude that either the prior hearings or lengthy motions to quash support are sufficient to establish good cause for the appointment of a master in chancery. At the outset, we note that the mandamus record reflects that, at the time the mandamus petition was filed, there had been only one prior hearing regarding discovery matters. This single hearing–heard by an associate judge, rather than the trial court–does not suffice to establish this as an “exceptional” case warranting the appointment of the master in chancery. See Simpson, 806 S.W.2d at 811 (trial court abused its discretion appointing master, noting that while eight discovery motions were filed in first ten months case was pending, record did not reflect “that the trial court heard the merits of any of the pending discovery disputes before appointing a master”). 11 Further, in her response to the mandamus petition, Mary notes that the “docket sheet in this case reflects 34 motion[s] to compel, motions to quash, and motions for protection from discovery have been filed in this case.” While thirty-four discovery motions certainly cannot be said to be insignificant, we must also acknowledge that cases with numerous and/or complex discovery disputes “are not uncommon among the trial courts of this state.” See id. Further, even if such a case were uncommon, the fact that the trial court’s docket sheet reflected thirty-four pending discovery motions would not necessarily be determinative, for two reasons. First, there is no evidence in the mandamus record that the trial court will be required to consider each, or any, of the thirty-four pending discovery motions. As Mary acknowledges in her response to the mandamus petition, “the parties . . . already had one comprehensive hearing before an associate judge on competing motions to compel.” Mary also “mediated an agreement” with “[s]everal” of the Nonparty Entities “to govern some of their issues.” Second, there is no evidence in the mandamus record that any individual motion in this case is sufficiently complex or complicated to meet the “exceptional” standard. See id. (“The record does not reflect that any of these motions was especially complex.”); see also Tollett v. Carmona, 915 S.W.2d 562, 564 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (concluding trial court erred in appointing discovery master where there were six pending discovery motions, but 12 there was no evidence “that the case or the discovery motions [were] especially complicated”). These authorities confirm that the trial court could not look simply to the number of motions filed, or the number of pages in the motions, as the arbiter of complexity. Consequently, we must look to the trial court’s other justifications to determine whether the appointment met Rule 171’s criteria. See Simpson, 806 S.W.2d at 811; see also Tollett, 915 S.W.2d at 564 (concluding six pending discovery motions were “not exceptional, and that good cause was not shown to refer discovery matters to a master”). 2. “Numerous Business Entities” with “Differing Ownership Interest and Organizational Structures” The trial court further cited “the numerous business entities and the differing ownership interests and organizational structures” in this divorce proceeding, concluding that the case warranted appointment of the master in chancery to consider discovery matters. Texas courts generally do not consider divorce proceedings “exceptional,” necessitating a discovery master, even where the marital estate may be substantial or disputed. See Roosevelt v. Roosevelt, 699 S.W.2d 372, 373 (Tex. App.—El Paso 1985, no writ) (trial court abused its discretion appointing master in divorce proceedings even though “parties had a substantial estate with some disputes over what was separate and what was community property and the value of certain items,” 13 noting that “[m]any, many divorces today involve those same issues”); Martin v. Martin, 797 S.W.2d 347, 349 (Tex. App.—Texarkana 1990, no writ) (“The appointment of a master in chancery in a divorce case is generally not done unless the case is exceptional and good cause exists.”). Here, the trial court undoubtedly will be required to make determinations regarding whether ownership interests in the Nonparty Entities constitute community or separate property. Even if these determinations make the case “more complicated than many other cases on the trial court’s docket,” nothing in the mandamus record suggests that the sort of determinations required here are “uncommon among the trial courts of this state.” See Simpson, 806 S.W.2d at 811. As such, we cannot conclude that the efforts required to classify the Nonparty Entities as community or separate property would be “exceptional.” Id. Mary argues that this case presents a closer case for exceptionalism than Simpson presented. We disagree. In Simpson, the Texas Supreme Court concluded that the trial court abused its discretion by appointing a discovery master in a “toxic tort case involving one plaintiff and eighteen defendants.” See id. At issue in that case were allegations that “chemicals in defendants’ products caused [the plaintiff’s] husband to contract lung cancer from which he died.” Id. In the case’s initial ten months, “eight discovery motions were filed,” though none had actually been considered by the trial court before the master was appointed. Id. Despite this, the 14 Supreme Court concluded that “[w]hile the case is undoubtedly more complicated than many other cases on the trial court’s docket, it can hardly be said to be exceptional, at least at this point in its development. . . [S]uch cases are not uncommon among the trial courts of this state.” Id. The present case is not a toxic tort case like Simpson. Nor is it a case involving “comprehensive analyses of highly technical data.” See generally TransAm. Nat. Gas Corp. v. Mancias, 877 S.W.2d 840, 843 (Tex. App.—Corpus Christi-Edinburg 1994, orig. proceeding) (“We hold that the technical nature of the present case and the potential help which may be provided to the trial court by a special master with geological training and expertise constitutes a sufficiently exceptional condition to justify the . . . appointment.”); see also Hourani v. Katzen, 305 S.W.3d 239, 247–48 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“The highly technical nature of the case, which involves the feasibility of constructing a driveway or bridge along the edge of a lake without damaging the lake, and the assistance which may be provided to the trial court by a special master with engineering training and expertise constitutes a sufficiently exceptional condition to justify the present appointment.”). To the contrary, this is a divorce proceeding involving the classification of community and separate property. See Roosevelt, 699 S.W.2d at 373 (noting that “[m]any, many divorces today” require classification of property as community or separate property). The task of making such classifications is the bread-and-butter 15 of divorce proceedings. The necessity of making these classifications does not make the case exceptional. Mary also cites the following grounds for distinguishing Simpson: resistance of discovery by Brian and the Nonparty Entities, the potential for Mary to bear the entire cost of the appointed master in chancery, and the potential for delayed justice and the diminishment of the marital estate. We have found no authority suggesting that these factors pull this case outside the realm of the ordinary. Without more, Rule 171’s criteria are not satisfied. See id.; see also Martin, 797 S.W.2d at 349. 3. The Trial Court’s Docket The trial court also found good cause to appoint the master in chancery because the trial court’s “duty to timely rule on discovery issues related to the value and character of the community and separate estates . . . ha[s] been delayed as a result of [the trial court’s] docket.” This reasoning does not justify the trial court’s order. The Texas Supreme Court has held that Rule 171’s good-cause standard is not satisfied “merely by showing that a case is complicated or time-consuming, or that the court is busy.” Simpson, 806 S.W.2d at 811. It “simply does not and cannot follow from the fact that our trial courts are busy–as they certainly are–that they do not have time to hear complex cases.” Id. The appointment order also justified the appointment on the ground that the court’s delay had been caused by exceptional events, such as the fire at the Galveston 16 County courthouse and the Covid-19 pandemic. This argument is unpersuasive. Rule 171 demands an “exceptional case[],” not exceptional events or circumstances. TEX. R. CIV. P. 171. If the exceptional circumstances presented by the Covid-19 pandemic could transform an unexceptional case into an exceptional one, then all parties to pandemic-era litigation would potentially be forced to “pay by the hour for resolution of the same kinds of issues by a master that litigants in other cases can obtain from the court without such expense.” Simpson, 806 S.W.2d at 812. Simply put, if every case is “exceptional,” then no case is. 4. The Texas Supreme Court’s Fortieth Emergency Order Mary argues that the Texas Supreme Court’s Fortieth Emergency Order “is enough, alone, to justify” the trial court’s appointment order. The trial court did not expressly identify the Emergency Order as a basis for the appointment order. Nevertheless, we consider this argument in light of the court’s reference to the Covid-19 pandemic. Since the outset of the Covid-19 pandemic, the Texas Supreme Court has issued regular emergency orders providing guidance to courts, practitioners, and litigants alike regarding case administration during pandemics. In its Fortieth Order, effective during the period relevant to this mandamus proceeding, the Texas Supreme Court provided that trial courts “may in any case . . . modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order 17 for a stated period ending no later than October 1, 2021.” See Supreme Court of Texas, Fortieth Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 21-9079, 629 S.W.3d 911 (Tex. 2021). Mary contends that this Court “has recognized the uniqueness of these unprecedented times,” acknowledging the Court’s “broad discretion” granted to trial courts to modify or suspend procedures prescribed by rule, including, according to Mary, Texas Rule of Civil Procedure 171. See Kim v. Ramos, 632 S.W.3d 258, 269– 72 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (concluding that the Texas Supreme Court’s Twenty-Ninth Emergency Order permitted trial court to extend deadline for party to serve expert report). During the course of the Covid-19 pandemic, courts across the State have relied on this “broad discretion” afforded pursuant to the Texas Supreme Court’s various emergency orders to extend deadlines. See id.; see also CBS Stations Grp. of Tex., LLC v. Burns, No. 05-2000700-CV, 2020 WL 7065827, at *3 (Tex. App.—Dallas Dec. 3, 2020, no pet.) (mem. op.) (concluding “trial court was within its discretion to continue” hearing pursuant to Texas Supreme Court emergency order); N. Cent. Baptist Hosp. v. Chavez, No. 04-20-00590-CV, 2021 WL 983351, at *2 (Tex. App.—San Antonio Mar. 17, 2021, no pet.) (mem. op.) (concluding Texas Supreme Court emergency orders “permitted courts” to extend deadlines but refusing to use emergency order to “extend the notice of appeal deadline”); Carrigan v. Edwards, No. 13-20-0009318 CV, 2020 WL 6504418, at *2 (Tex. App.—Corpus Christi–Edinburg Nov. 5, 2020, pet. denied) (mem. op.) (acknowledging that Texas Supreme Court emergency orders “permit courts to extend deadlines,” but dismissing appeal for failure to file a brief, noting “pandemic conditions do not generate a blanket excuse which can be used to extend deadlines indefinitely”). In one case, our sister court in Dallas granted mandamus relief where the trial court refused to exercise its broad discretion to extend deadlines. See In re Rodriguez, No. 05-20-00523-CV, 2020 WL 2487061 (Tex. App.—Dallas May 13, 2020, orig. proceeding) (mem. op.). In that divorce case, the trial court denied an agreed continuance of a trial setting. Id. at *1. The underlying divorce proceeding was filed in 2019 and was set for trial on May 5, 2020. Id. Just prior to trial, there was outstanding written discovery for which responses were due on April 5, 2020, but “[t]he Covid-19 pandemic intervened.” Id. With the onset of the pandemic, the parties “believed the emergency orders extended the deadline to respond to the discovery,” and entered an to file an agreed motion for continuance of the May 5, 2020 trial setting, “exchange sworn inventories and appraisements by June 1, 2020,” participate in mediation on or before June 30, 2020, and extend the deadline for responding to the outstanding written discovery. Id. at *1–2. The trial court denied the parties’ joint motion for continuance, and the mandamus proceeding followed. Id. at *2. 19 The relator argued that the trial court “incorrectly applied the Texas Supreme Court’s emergency orders in denying [the] agreed continuance,” and that the emergency orders “require flexibility and adaptability in all aspects of our legal system.” Id. The Dallas court agreed, finding that the “parties’ communications and agreements reflect their adherence to ethical obligations, as well as the cooperation and flexibility required during this unprecedented time.” Id. at *3. Given that, the Dallas court concluded that the trial court’s denial of the parties’ joint motion for continuance amounted to an abuse of discretion and mandamus relief was warranted. Id. at *3. These deadline cases are inapposite. Although the Texas Supreme Court’s emergency orders have been interpreted as to afford trial courts broad discretion to extend deadlines, the appointment order is not analogous to a mere deadline extension. The emergency order does not vest trial courts with any discretion to ease or disregard Rule 171’s strict criteria for appointing a special master. Consequently, we find that the trial court’s appointment order constitutes an abuse of discretion. No Adequate Remedy by Appeal In order to be entitled to mandamus relief, a relator must generally establish both an abuse of discretion by the trial court and that relator has no adequate remedy by appeal. See In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007); In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014, orig. proceeding) 20 (“[R]elator has the burden to establish both of these prerequisites to mandamus.”). Regardless of whether relator establishes an abuse of discretion, “[o]ur requirement that mandamus will not issue where there is an adequate remedy by appeal is well settled.” See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Here, Brian argues that he lacks an adequate remedy by appeal because requiring a party to reserve their complaint regarding appointment of a discovery master for appeal “would be to deny them any effective relief from the trial court’s order.” See Simpson, 806 S.W.2d at 812. Accordingly, where, as here, “a trial court improperly appoints a master in chancery, mandamus is the proper remedy.” Suttles v. Vestin Realty Mortg. I, Inc., 317 S.W.3d 412, 419 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding) (granting mandamus where trial court order appointing master failed to meet “exceptional case/good cause” requirement). Conclusion We lift the stay imposed by our September 8, 2021 order, conditionally grant Brian’s petition for writ of mandamus, and direct the trial court vacate its August 20, 2021 “Order of Reference on Appointment of Master in Chancery.” We are confident that the trial court will comply with this Court’s ruling, and the writ will issue only if the trial court fails to comply within thirty days of the date of this opinion. All pending motions are dismissed as moot. 21 April Farris Justice Panel consists of Justices Landau, Guerra, and Farris. 22

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