in the Estate of Phillip Morris Krumnow, Sr. ( 2010 )

NO. 07-10-0127-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 21, 2010
______________________________
IN THE ESTATE OF PHILLIP MORRIS KRUMNOW, SR., DECEASED
_________________________________
FROM THE COUNTY COURT OF FALLS COUNTY;
NO. 6862; HONORABLE JAMES F. CLAWSON, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION ON APPELLEE'S MOTION TO DISMISS
According to the record filed, Appellant, Phillip Morris Krumnow, Jr., was
appointed as Independent Executor of the Estate of Phillip Morris Krumnow, Sr.,
Deceased, and letters testamentary were issued on October 30, 2002. Appellant was
subsequently removed as Independent Executor on May 14, 2003. This is an attempt
to appeal a preliminary probate court ruling in a proceeding seeking the appointment of
a successor personal representative of the estate. Here, Appellant has filed a notice of
appeal from the trial court's order overruling his objection to the assignment of Senior
Judge James F. Clawson, Jr. as presiding judge. Appellees, Norma Cora Withem,
Bettie Lanelle Mendenhall, and Robert R. Krumnow, have filed a Motion to Dismiss this
appeal contending this Court has no jurisdiction to entertain Appellant's case. For the
reasons expressed herein, we grant Appellees' motion and dismiss this purported
appeal for want of jurisdiction.
After the Honorable R. Steven Sharp entered an order disqualifying himself from
presiding in the underlying probate case, the presiding judge of the Third Administrative
Judicial Region, pursuant to § 74.056 of the Texas Government Code,1 signed an order
dated January 7, 2010, assigning the Honorable James F. Clawson, Jr., Senior Judge
of the 169th Judicial District, to preside over the case. Although Appellant contends that
he did not receive actual notice of the assignment of Judge Clawson until he received
"the notice of hearing on the Appointment of a Successor Executor," the record is
devoid of any reference to that date.2 Appellant filed his Objection to Assigned Judge
on January 29, 2010, followed by an Amended Objection to Assigned Judge on
February 1, 2010. Without a hearing, finding the objection to be untimely as a matter of
law, Judge Clawson entered an order overruling Appellant's challenges on February 2,
2010. Appellant filed his notice of appeal on March 1, 2010.3
1
Tex. Gov't Code Ann. § 74.056 (Vernon 2005).
2
An objection to the assignment of a trial judge under Chapter 74 of the Texas Government Code must be
filed not later than the earlier of the seventh day after the date the party receives actual notice of the
assignment or the date the first hearing or trial, including pretrial hearings, commences. Tex. Gov't Code
Ann. § 74.053(c) (Vernon 2005). Except as specifically provided, each party to the case is entitled to only
one objection under § 74.053. If a properly filed objection is timely, the assigned judge's disqualification is
automatic. See Tex. Gov't Code Ann. § 74.053(b) (Vernon 2005); In re Canales, 52 S.W.3d 698, 701
(Tex. 2001). The determination of timeliness is a mixed question of law and fact.
3
Even if this were a permissible interlocutory appeal, the notice of appeal was not filed within the twenty
days in which to perfect such an appeal. See Tex. R. App. P. 26.1(b).
2
Appellant filed his brief on June 25, 2010, raising the following two issues:
1. Because Appellant did not receive notice of the January 7, 2010,
assignment, the trial court abused its discretion in denying his objection to
the assigned judge based on the finding that his objection was not timely
filed.
2. The trial court abused its discretion in not conducting a hearing on the
record on Appellant's objection to assigned judge for the reason that a
hearing is required.
In response, Appellees filed their brief which incorporated a motion to dismiss for want
of jurisdiction.
By letter dated August 3, 2010, this Court advised Appellant of the potential
interlocutory nature of the order being appealed and directed him to demonstrate on or
before August 13, 2010, why this appeal should not be dismissed for want of
jurisdiction. On August 17, 2010, Appellant filed his response asserting he was denied
the fundamental right to a hearing on his objection. Relying on In re Canales, 52
S.W.3d 698, 701 (Tex. 2001), he argues that because orders of an assigned judge who
should have been removed after a timely objection are void, it would be a waste of time
and judicial resources to not address the issue on an interlocutory basis.4
Interlocutory Appeals
At the outset, this Court is obliged to determine issues affecting our jurisdiction
over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678
4
In re Canales was an original proceeding wherein the Petitioner sought a writ of mandamus to compel an
appellate court to withdraw its conditional granting of a writ of mandamus directing an assigned judge to
disqualify himself from further proceedings in an underlying cause of action based upon the timeliness of
an objection to his assignment.
3
(Tex. 1990). Our jurisdiction is established by various constitutional and statutory
provisions. See Tex. Const. art. 5 ' 6. See also Tex. Gov=t Code Annotated ' 22.220
(Vernon Supp. 2009). As a general rule, before a judgment or order is appealable, it
must be a final order disposing of all parties and issues. Lehmann v. Har-Con Corp. 39
S.W.3d 191, 195 (Tex 2001); North E. Indep. School Dist. v. Aldridge 400 S.W.2d 893,
895 (Tex. 1966). An order or judgment which does not dispose of all parties and issues
is interlocutory and this Court is without jurisdiction to review it absent an express grant
of authority. See Warford v. Childers, 642 S.W.2d 63, 65 (Tex.App.--Amarillo 1982, no
writ).
Section 51.014(a) of the Texas Civil Practices and Remedies Code does grant
express authority to appeal certain interlocutory orders. See Tex. Civ. Prac. & Rem.
Code ' 51.014(a) (Vernon 2008). Because this appeal pertains to a matter not falling
within any of those statutory exceptions, we find no statutory basis for jurisdictional
authority.
Appellant's argument that dismissing this appeal would be a waste of judicial
resources is also without merit. Just as in Canales, Appellant has an appropriate and
adequate remedy via a mandamus proceeding.
Accordingly, Appellees' Motion to Dismiss is granted and this purported appeal is
dismissed for want of jurisdiction. Tex. R. App. P. 42.3(a).
Patrick A. Pirtle
Justice
4