in the Matter of the Guardianship of May K. Jones, an Incapacitated Person ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00187-CV
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF MAY K. JONES, AN INCAPACITATED PERSON
On Appeal from Probate Court
Denton County, Texas
Trial Court No. PR-2014-00591-01
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
On July 17, 2017, appellants Kathy Jones-Hospod a/k/a Kathy Jones and Judy
Jones filed a petition for bill of review challenging certain orders the probate court
had previously signed in this guardianship proceeding. In response, appellees Ellen
Nadene Smith and Patricia Peacock filed a motion to dismiss the petition and sought
sanctions against appellants for filing it in the first place. Virginia N. Hammerle, the
guardian ad litem for the ward in this case, additionally filed two separate motions to
dismiss.
While their petition for bill of review was still pending, appellants filed a
motion to disqualify or recuse the probate judge. Appellees filed a response and
sought sanctions against appellants for filing the motion, arguing that it was
groundless, that appellants had filed it in bad faith or for the purpose of harassment,
and that they had filed it for unnecessary delay and without sufficient cause. The
disqualification and recusal motion was referred to another judge, who denied it and
signed an order imposing sanctions against appellants and their attorney for filing it.
The probate court set a hearing on the motions to dismiss appellants’ petition
for bill of review and on Smith’s and Peacock’s motion for sanctions for April 15,
2019. Prior to the hearing, Jones filed an unsworn motion for continuance asking for
a delay of that hearing. The probate court denied the motion for continuance and
then, in a single order signed on April 29, 2019, granted all three of the motions to
dismiss, as well as Smith’s and Peacock’s motion for sanctions. Appellants then filed
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a notice of appeal stating that they intended to appeal from all of the previously
mentioned orders.
Upon reviewing the record, we became concerned that we might lack
jurisdiction over this appeal. Specifically, we observed that the probate court’s
April 29, 2019 order granting appellees’ motions to dismiss and granting Smith’s and
Peacock’s motion for sanctions lacks decretal language disposing of appellants’
petition for bill of review and thus does not appear to be a final judgment for
purposes of appeal in this guardianship proceeding. See In re Wilmington Tr., Nat’l
Ass’n, 524 S.W.3d 790, 792 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding)
(“An order that merely grants a motion for judgment is in no sense a judgment itself.
It adjudicates nothing.” (quoting Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (per
curiam))). We therefore asked the parties to file supplemental briefs addressing our
jurisdictional concerns. See Tex. R. App. P. 42.3(a), 44.3. The parties did so. As we
now explain, after reviewing the parties’ supplemental briefing, we conclude that the
April 29, 2019 “Order Granting Sanctions and Dismissing Case” is not final for
purposes of appeal and that we therefore lack jurisdiction over this appeal.
In their supplemental briefs, appellees concede that the probate court’s
April 29, 2019 “Order Granting Sanctions and Dismissing Case” is not final because it
does not include any decretal language disposing of appellants’ petition for bill of
review or unequivocally state that it finally disposes of all claims and all parties and is
appealable. See Wilmington Tr., 524 S.W.3d at 793 (stating that order at issue was not a
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final judgment “because it [did] not actually dispose of any claim or party or
unequivocally state that it finally disposes of all claims and all parties and [was]
appealable”). Appellants, however, contend that the order is final for purposes of
appeal in this guardianship context. They point out that although the order does not
dispose of the entire case, guardianship proceedings are an exception to the ordinary
rule that only one final judgment may be rendered in a cause. And they contend that
the April 29, 2019 “Order Granting Sanctions and Dismissing Case” is final within the
context of a guardianship proceeding because it disposes of their claims, thereby
ending their right to participate in the guardianship.
We agree with appellants that guardianship proceedings are often an exception
to the one final judgment rule and that consequently, multiple judgments that are final
for purposes of appeal might be rendered in such proceedings. See In re Guardianship of
Benavides, 403 S.W.3d 370, 374 (Tex. App.—San Antonio 2013, pet. denied) (noting
that “probate and guardianship proceedings are often exceptions to the ‘one final
judgment’ rule” (quoting De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). But
we disagree with appellants that the April 29, 2019 “Order Granting Sanctions and
Dismissing Case” actually disposes of their petition for bill of review such that it
resolves a discrete issue in this proceeding.
As relevant here, after reciting that the probate court had considered the three
motions to dismiss that appellees and Hammerle filed as well as Smith’s and Peacock’s
motion for sanctions, the order states that the court found that “each of the motions
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has merit and should in all things be GRANTED.” The order additionally references
those three dismissal motions separately, providing as follows:
IT IS FURTHER ORDERED that Ellen Smith’s and Patricia Peacock’s
Motion to Dismiss filed on October 30, 2017 is GRANTED.
IT IS FURTHER ORDERED that Guardian Ad Litem’s Motion to
Dismiss filed on July 6, 2018, is GRANTED.
IT IS FURTHER ORDERED that Guardian Ad Litem’s Motion to
Dismiss for Lack of Jurisdiction filed on October 2, 2018 is
GRANTED.
The order ends by stating, “All relief not expressly granted herein is denied.[1] This
order is a final order.[2]” But the order contains no decretal language actually
disposing of appellant’s petition for bill of review. See Wilmington Tr., 524 S.W.3d
at 793 (concluding that although the order at issue stated that the motions in question
should be granted, it did not actually dispose of the cause because it did “not include
the decretal language typically seen in a judgment (i.e., ‘ordered, adjudged, and
decreed’)” (citing In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014) (per curiam)
1
This is a “Mother Hubbard” clause. See Lehmann v. Har-Con Corp., 39 S.W.3d
191, 203–04 (Tex. 2001) (noting that a Mother Hubbard clause is a statement that “‘all
relief not granted is denied’, or essentially those words”). In the context of an order
disposing of an interlocutory motion, a Mother Hubbard clause does not indicate that
the order is final for purposes of appeal. See id. at 204 (“For whatever reason, the
standard Mother Hubbard clause is used in interlocutory orders so frequently that it
cannot be taken as any indication of finality.”).
2
The statement, “This order is a final order,” does not make the April 29, 2019
“Order Granting Sanctions and Dismissing Case” final for purposes of appeal. See
Wright v. Payne, No. 02-19-00147-CV, 2019 WL 6003243, at *2 (Tex. App.—Fort
Worth Nov. 14, 2019, no pet.) (mem. op.); see also id. at *3 (Sudderth, C.J., concurring).
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(orig. proceeding)). Thus, even assuming that an order disposing of a party’s petition
for bill of review in a guardianship proceeding resolves a discrete issue such that the
order is final for purposes of appeal, because the order at issue here lacks decretal
language, it does not actually dispose of appellant’s petition for bill of review.
Accordingly, we conclude that the April 29, 2019 “Order Granting Sanctions and
Dismissing Case” is not final for purposes of appeal in this guardianship proceeding,
notwithstanding the fact that such proceedings generally present an exception to the
one final judgment rule.
Appellees contend that instead of dismissing this case for want of jurisdiction,
we may, under Rule 27.2, abate this case and remand it to the probate court with
instructions to modify the order in such a way as to make it final and appealable, and
Smith and Peacock have filed a motion to abate asking us to do that. Rule 27.2
provides that an appellate court
may treat actions taken before an appealable order is signed as relating to
an appeal of that order and give them effect as if they had been taken
after the order was signed. The appellate court may allow an appealed order that
is not final to be modified so as to be made final and may allow the modified order
and all proceedings relating to it to be included in a supplemental record.
Tex. R. App. P. 27.2 (emphasis added).
To support their motion, Smith and Peacock cite us to our sister court’s
abatement order in Harrison v. TDCJ-ID, 134 S.W.3d 490, 491 (Tex. App.—Waco
2004, order) (per curiam). There, the Waco court applied Lehmann and determined
that the order from which the appellant had appealed was not a final, appealable order
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because it did not dispose of the appellant’s claims against one of the parties he had
sued. See id. (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001)). The
court also determined, however, that the trial court had actually intended to render a
final judgment. See id. at 492. So rather than dismissing the appeal for want of
jurisdiction, the court instead pointed to a portion of the Supreme Court of Texas
opinion in Lehmann and concluded that it could abate the appeal under Rule 27.2 and
remand the case to the trial court to fix the defect in its order. See id. at 491–92 (citing
Lehmann, 39 S.W.3d at 206 & n.92). The court did so, instructing the trial court that if
it had “intended to render a final judgment, then it should enter an appropriate order
to effectuate its intent” on remand. See id. at 492. Smith and Peacock ask us to do
likewise here.
We decline to do so, however. The Waco court has overruled its prior
decisions, including Harrison, “that abated (rather than dismissed) the appeal in cases
where [it] lacked jurisdiction because the order or judgment being appealed was
indisputably interlocutory.” See In re H.L.H., No. 10-16-00111-CV, 2016 WL
3224798, at *1 n.1 (Tex. App.—Waco June 9, 2016, no pet.) (mem. op.). Instead, that
court has now determined that if there is no final judgment and the order being
appealed is indisputably interlocutory, then an appellate court lacks jurisdiction and
cannot abate the appeal. See id. at *1.
More importantly, however, we do not understand Lehmann to permit
abatement under Rule 27.2 given the specific defect in the order before us. In
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Lehmann, the court explicitly tied an appellate court’s discretion to abate an appeal
under Rule 27.2 to situations in which the court is uncertain about the intent of the
order being appealed. See 39 S.W.3d at 206 & n.92 (citing Rule 27.2 and noting that
“[i]f the appellate court is uncertain about the intent of the order, it can abate the
appeal to permit clarification by the trial court”); see also Evanston Ins. Co. v. D & L
Masonry of Lubbock, Inc., No. 07-10-00253-CV, 2010 WL 3190660, at *2 n.1 (Tex.
App.—Amarillo Aug. 12, 2010, no pet.) (mem. op.) (concluding that abatement under
Rule 27.2 for a trial court to clarify whether it intended an order to be a final
judgment “is available only when the appellate court is ‘uncertain’ whether the trial
court intended to enter a final judgment”); Mullins v. Ortiz, No. 10-08-00225-CV,
2009 WL 1176922, at *3 (Tex. App.—Waco Apr. 29, 2009, order) (per curiam) (Gray,
C.J., dissenting) (noting same). As we have explained above, we have no uncertainty
regarding the April 29, 2019 “Order Granting Sanctions and Dismissing Case”; the
order unambiguously fails to dispose of appellants’ petition for bill of review. See
Wilmington Tr., 524 S.W.3d at 792 (“An order that merely grants a motion for
judgment is in no sense a judgment itself. It adjudicates nothing.” (citing Naaman,
126 S.W.3d at 74)). And because we have no uncertainty, we cannot abate under Rule
27.2. See H.L.H., 2016 WL 3224798, at *1; Evanston Ins. Co., 2010 WL 3190660, at *2
n.1.
Having concluded that the record before us does not contain an appealable
order, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f). We
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additionally dismiss Smith’s and Peacock’s motion to abate. See H.L.H., 2016 WL
3224798, at *1.3
/s/ Dana Womack
Dana Womack
Justice
Delivered: April 16, 2020
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Appellants filed a response to Smith’s and Peacock’s motion to abate. In that
response, appellants state that we “should carefully consider whether the conduct of
opposing counsel merits sanctions,” and in their “conclusion and prayer,” appellants
additionally ask that we “consider the issue of sanctions, if any, directed to
discouraging the conduct of opposing counsel occurring during this appeal.” To the
extent that these statements can be construed as a motion for sanctions, that motion
is dismissed.
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