In Re Jon Sisco--Appeal from County Court at Law No 3 of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-506 CV
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IN RE JON SISCO
Original Proceeding
MEMORANDUM OPINION (1)

Relator, Jon Sisco, seeks a writ of mandamus to compel the trial judge to enter an order appointing Al Stewart as Independent Administrator of the Estate of Herbert Clinton Sisco. Herbert Clinton Sisco died on October 30, 1993, and Eric Yollick was appointed Dependent Administrator of the Estate of Herbert Clinton Sisco on March 18, 2002. The Relator complains that the trial court abused its discretion by changing its order one year after the trial court signed an order that determined Sisco to be the sole distributee of the estate. The amended order is not contained in the mandamus record. See Tex. R. App. P. 52.3(j)(1)(A). The Relator also contends that the trial court improperly took judicial notice of a personal relationship between Stewart and the Relator during a June 12, 2003, hearing on an application for independent administration. See Tex. R. Evid. 201. Relator urges that the trial court abused its discretion and denied the Relator due process by failing to appoint Stewart as Independent Executor upon the Relator's motion. See Tex. Prob. Code Ann. 145(e) (Vernon 2003).

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The trial court may decline the application "in the best interest of the estate." See Tex. Prob. Code Ann. 145(e) (Vernon 2003). After reviewing the petition and record, we conclude that the relator has not shown a clear abuse of discretion or violation of a duty imposed by law, nor has he established the lack of an adequate remedy by appeal. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995) (discrete phases of probate proceedings are appealable).

The petition for writ of mandamus, filed October 27, 2003, is DENIED.

WRIT DENIED

PER CURIAM

 

Opinion Delivered December18, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.