in Re J.A. (Jay) Asafi as Independent Administrator of the Estate of Alosia Smith Rauscher, and Todd Reagan Smith ( 2009 )

Petition for Writ of Prohibition Denied and Memorandum Opinion filed November 5, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00908-CV

____________

IN RE J.A. (“JAY”) ASAFI, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ALOSIA SMITH RAUSCHER, Deceased, and TODD REAGAN SMITH, Relators

ORIGINAL PROCEEDING

WRIT OF PROHIBITION

M E M O R A N D U M   O P I N I O N

            Relators, J.A. (“Jay”) Asafi, as Independent Administrator of The Estate of Alosia Smith Rauscher, Deceased, and Todd Reagan Smith, filed a petition for writ of prohibition in this court. See Tex. Gov’t Code Ann §22.221 (Vernon 2004); see also Tex. R. App. P. 52.1. We have pending a related appeal, filed under our number 14-09-00800-CV, of three partial summary judgment orders in the underlying case, styled In the Estate of Alosia Smith Rauscher, Deceased, filed in the Harris County Probate Court No. 2, under cause number 381,121. In their petition, relators ask this court to stay all proceedings in the trial court until final resolution of the appeal. Relators have also filed a request for temporary relief asking this court to stay all proceedings below pending resolution of this petition. See Tex. R. App. P. 52.10.

            Relators have not established that the interlocutory orders that they challenge may be appealed.[1] Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception to the “one final judgment” rule; in such cases, multiple judgments may be final for purposes of appeal on certain discrete issues. Id. at 192.

The supreme court has adopted the following test for determining the finality of orders in probate cases:

[i]f there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). To be considered final, the order must dispose of all issues in the “phase of the proceeding” for which it was brought. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Relators have not established that the orders they have attempted to appeal satisfy this test for finality for purposes of appeal.

            A writ of prohibition is used to protect the subject matter of an appeal or to prohibit an unlawful interference with enforcement of a superior court’s order and judgments. Sivley v. Sivley, 972 S.W.2d 850, 863-64 (Tex. App.—Tyler 1998, orig. proceeding). The writ is designed to operate like an injunction issued by a superior court to control, limit, or prevent action in a court of inferior jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682 (Tex. 1989). The same principles control both a writ of prohibition and writ of mandamus when used to correct the unlawful assumption of jurisdiction by an inferior court. Tilton v. Marshall, 925 S.W.2d 672, 676 n. 4 (Tex. 1996).

Even if relators had established that the underlying orders are subject to appeal, they have not demonstrated that continued action by the probate court would moot our appeal or otherwise destroy our jurisdiction. See In re Bailey, No. 12-09-00289-CV, 2009 WL 3000606, * 3 (Tex. App.—Tyler Sept. 22, 2009, orig. proceeding) (denying writ of prohibition to compel estate accounting where requisite threat to interference with appellate jurisdiction not shown).

Relators have not established that they are entitled to the extraordinary writ. Accordingly, the petition for writ of prohibition and request for temporary relief are denied.

                                                            PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

---

[1]  Relators failed to file a record or appendix with their petition. See Tex. R. App. P. 52.3(k); 52.7