in the Estate of Nathan Wayne Pustka Incapacitated ( 2018 )

Dismissed and Memorandum Opinion filed June 12, 2018.
In The
Fourteenth Court of Appeals
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NO. 14-18-00166-CV
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IN THE ESTATE OF NATHAN WAYNE PUSTKA
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 460417
MEMORANDUM OPINION
This is an attempted appeal from an order granting “Guardian’s Motion for
Partial Traditional Summary Judgment,” signed January 30, 2018.
Appellant Aida Villarreal filed an application in the trial court to revoke letters
of guardianship and to be appointed successor guardian of the ward, her son. In her
application, appellant requested the court (1) to appoint her guardian of the ward;
(2) to set a bond in a sufficient amount to protect the ward’s rights; and (3) to revoke
the current guardianship. Appellant filed an amended pleading in which she sought
removal of the current guardian and appointment of herself as guardian of the ward.
Appellee Vickie Lynn Pustka, the ward’s sister and current guardian, filed a motion
for partial summary judgment in which she alleged appellant could not be appointed
successor guardian because appellant waived her right to be appointed as guardian.
In the motion for partial summary judgment appellee asked the trial court to find as
a matter of law that appellant cannot invoke section 1203.103 of the Texas Estates
Code to assert her prior right to appointment as guardian. The trial court granted the
motion for partial summary judgment, but its order contains no finality language.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). The sole issue
addressed by the partial summary judgment is appellant’s previous waiver of her
right to be appointed guardian. Also on January 30, 2018, the trial court denied
appellee’s motion in limine challenging appellant’s standing to seek removal of the
guardian.1
On April 11, 2018, this court notified the parties that the court would consider
dismissal of the appeal unless a party filed a response showing meritorious grounds
for continuing the appeal. In response, appellant first filed a motion to extend time
to file the notice of appeal of an interlocutory order. We address this motion below.
Appellant filed another response to this court’s notice of dismissal in which she
argues the trial court’s order is a final, appealable judgment as it disposes of a
discrete phase of the guardianship proceeding.
A party may not appeal an interlocutory order unless authorized by statute.
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). No party has
cited, and our research has not revealed, any statute allowing appeal from the trial
court’s order if it is interlocutory. Thus, for this court to have appellate jurisdiction
the trial court’s order must be final.
1
In a guardianship proceeding, “[t]he court shall determine by motion in limine the standing of a
person who has an interest that is adverse to a proposed ward or incapacitated person.” Tex. Estates
Code Ann. § 1055.001 (West 2014).
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Under the general rule for determining finality, “[a] judgment is final for
purposes of appeal if it disposes of all pending parties and claims in the record,
except as necessary to carry out the decree.” Lehmann, 39 S.W.3d at 195. In her live
pleading appellant seeks (1) revocation under Texas Estates Code section 1203.103
and appointment as guardian; and (2) removal of appellee as guardian for cause
under Texas Estates Code section 1203.052. The partial summary-judgment order
appellant attempts to appeal disposed only of appellant’s request for revocation
under section 1203.103 of the Estates Code. The order from which appellant seeks
to appeal does not dispose of all parties and claims. Thus, the order is not final under
the general Lehmann analysis. See id.
Nonetheless, the Supreme Court of Texas has concluded that orders resolving
certain discrete matters in probate cases may be final for purposes of appeal, even
though these orders do not dispose of all pending parties and claims. See Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Crowson v. Wakeham, 897
S.W.2d 779, 781–83 (Tex. 1995); SJ Medical Center, L.L.C. v. Estahbanati, 418
S.W.3d 867, 870–71 (Tex. App.—Houston [14th Dist.] 2013, no pet.). If a probate
court’s order resolves a discrete issue in the probate proceedings, then that order is
deemed to be a final order from which appeal may be taken, even if the order does
not dispose of all pending parties and claims. See Lehmann, 39 S.W.3d at 195;
Crowson, 897 S.W.2d at 781–83. To determine whether the probate order is final on
this basis, we first consider whether there is a statute specifically declaring this type
of order to be the end of a particular phase of proceedings under the Probate Code.
See De Ayala v. Mackie, 193 S.W.3d 575, 578–79 (Tex. 2006); Crowson, 897
S.W.2d at 781–83. If there is such a statute, then that statute controls; if not, the order
is final if, in the order, the probate court disposed of all parties and all issues in a
particular phase of the probate proceedings of which the order logically may be
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considered a part. See De Ayala, 193 S.W.3d at 578–79; Crowson, 897 S.W.2d at
781–83; SJ Medical Center, L.L.C., 418 S.W.3d at 871. Probate proceedings are an
exception to the “one final judgment” rule; in such cases, “multiple judgments final
for purposes of appeal can be rendered on certain discrete issues.” Lehman, 39
S.W.3d at 192. Not every interlocutory order in a probate case, however, is
appealable. See De Ayala, 193 S.W.3d at 578.
There is no statute specifically declaring orders granting partial summary-
judgment motions like the one filed by appellee to be the end of a particular phase
of proceedings under the Probate Code. Thus, to determine whether the partial
summary-judgment order in this case is final and appealable, we must determine (1)
if there is a particular phase of the probate proceedings of which the order logically
may be considered a part, and (2) if, in the order, the probate court disposed of all
parties and all issues in this phase. See id. at 578–79; Crowson, 897 S.W.2d at 781–
83; SJ Medical Center, L.L.C., 418 S.W.3d at 871. To make this determination, we
examine the live pleadings contained in the record.
Appellant recognizes that the trial court’s order on partial summary judgment
disposed of her claim to be appointed guardian, but did not dispose of her claim for
appellee, the current guardian, to be removed for cause. Appellant argues that the
trial court’s order denying her claim to be appointed guardian disposed of a discrete
phase of the proceeding, and that this court has jurisdiction to consider the court’s
partial summary judgment.
Two issues are raised by appellant’s live pleading: (1) revocation under Texas
Estates Code section 1203.103 and appointment as guardian; and (2) removal of
appellee as guardian for cause under Texas Estates Code section 1203.052. Section
1203.103, entitled “Appointment Because of Existence of Prior Right” provides:
If letters of guardianship have been granted to a person and another
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person applies for letters, the previously issued letters shall be revoked,
and letters shall be granted to the subsequent applicant if that applicant:
(1) is qualified;
(2) has a prior right to be appointed successor guardian; and
(3) has not waived that prior right.
Tex. Estates Code Ann. § 1203.103 (West 2014).
Section 1203.052, entitled “Removal with Notice” provides in part:
(a) The court may remove a guardian as provided by Subsection (a-1)
if:
...
(7) the guardian neglects to educate or maintain the ward as liberally as
the means of the ward’s estate and the ward’s ability or condition
permit; [or]
(8) the guardian interferes with the ward’s progress or participation in
programs in the community.
Tex. Estates Code Ann. § 1203.052 (West 2014).
The substance of appellant’s two requests logically are considered as part of
the same phase of the probate proceedings, but each request differs in the relief
sought. Nonetheless, in both the requests appellant attempts to remove the current
guardian and to have appellant appointed as guardian. Therefore, the trial court’s
partial summary-judgment order logically may be considered as part of the phase of
the probate proceeding in which appellant made each request. In its order the probate
court did not dispose of all parties or all issues in this particular phase of the probate
proceedings. So, the order from which appellant seeks to appeal is not a final order
under the Crowson analysis. See De Ayala, 193 S.W.3d at 578–79; Crowson, 897
S.W.2d at 781–83; SJ Medical Center, L.L.C., 418 S.W.3d at 870–71.
Appellant nevertheless argues that the partial summary judgment is
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appealable under the “substantial rights” test. But, this court has held that the
Crowson analysis has taken the place of the “substantial rights” test. See Crowson,
897 S.W.2d at 781–83; SJ Medical Center, L.L.C., 418 S.W.3d at 870–71; Gonzalez
Guilbot v. Guilbot Serros de Gonzalez, 367 S.W.3d 442, 446–48 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied); Fernandez v. Bustamante, 305 S.W.3d 333,
337–39 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Thus, we do not apply this
test in today’s case.
Under the Crowson legal standard, the order from which appellant seeks to
appeal is an interlocutory order, and this court lacks appellate jurisdiction. See De
Ayala, 193 S.W.3d at 578–79; Crowson, 897 S.W.2d at 781–83; SJ Medical Center,
L.L.C., 418 S.W.3d at 870–71.
Appellant has filed a motion requesting an extension of time to file a notice
of appeal of an interlocutory order. This motion does not alter the reality that the
order is interlocutory and that no statute gives this court jurisdiction over an
interlocutory appeal from this order. Therefore, we dismiss this appeal for want of
appellate jurisdiction.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
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