in Re Sindhura Gogineni

• Court: Court of Appeals of Texas
• Decided: December 7, 2018
• Docket: 02-18-00377-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00377-CV ___________________________

IN RE S.G., Relator

Original Proceeding Trial Court No. 233-576416-15

Before Meier, Gabriel, and Birdwell, JJ. Memorandum Opinion by Justice Birdwell 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 remedy1

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).

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

We do not express an opinion concerning whether the trial court erred by 1

denying the modification petition.

2 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