Carol M. Kam v. David J. Kam, Trustee for the Robert S. Kam Trust ( 2020 )

DISMISSED; Opinion Filed April 10, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01293-CV
CAROL M. KAM, Appellant
V.
DAVID J. KAM, TRUSTEE FOR THE ROBERT S. KAM TRUST, Appellee
On Appeal from the Probate Court No. 3
Dallas County, Texas
Trial Court Cause No. PR-11-01368-3
MEMORANDUM OPINION
Before Justices Whitehill, Molberg, and Nowell
Opinion by Justice Nowell
This appeal, filed October 22, 2019, challenges the (1) August 9, 2013 final
judgment overruling Carol Kam’s contest to her brother’s will and (2) October 16,
2013 order denying Kam’s motion for new trial and alternative motion to modify
judgment.1 Both were signed by former Associate Probate Judge John Peyton, Jr.
after the parties agreed on the record that he would decide all issues and any appeal
would be taken directly to this Court.
1
The contest and motion were also filed by Kam’s nephew. He is not a party to this appeal.
Because an appeal from a final judgment must generally be filed within thirty
days of judgment, we questioned our jurisdiction over the appeal and directed Kam
to file a letter brief addressing our concern. See TEX. R. APP. P. 26.1. Kam complied,
agreeing we lack jurisdiction but for a different reason–the appellate deadlines have
not been triggered because the judge of the referring court, Probate Court No. 3, has
not signed the judgment.2 Kam is correct.
Chapter 54A, subchapter C of the Texas Government Code governs the
appointment and use of associate judges in probate cases. See TEX. GOV’T CODE
ANN. Ch. 54A, subch. C. Under section 54A.209(a)(17), the associate judge may
sign a final order that includes a waiver of the right to a de novo hearing before the
referring court. See id. § 54A.209(a)(17). However, the judgment does not become
the judgment of the referring court, and the appellate deadlines are not triggered,
until the judge of the referring court signs the judgment. See id. §§ 54A.214(b),
54A.217(b).
The final judgment here was signed by the associate judge but not the judge
of the referring court. While the associate judge may have decided all issues and the
parties may have agreed to appeal directly to this Court, the judgment is not
appealable until the judge of the referring court has signed it. See id. §§ 54A.214(b),
2
Although given an opportunity to respond, appellee has not filed a response.
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54A.217(b). Accordingly, we lack jurisdiction and dismiss the appeal and any
pending motions. See TEX. R. APP. P. 42.3(a).
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
191293F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CAROL M. KAM, Appellant On Appeal from the Probate Court
No. 3, Dallas County, Texas
No. 05-19-01293-CV V. Trial Court Cause No. PR-11-01368-
3.
DAVID J. KAM, TRUSTEE FOR Opinion delivered by Justice Nowell,
THE ROBERT S. KAM TRUST, Justices Whitehill and Molberg
Appellee participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee David J. Kam, Trustee for The Robert S. Kam
Trust, recover his costs, if any, of this appeal from appellant Carol M. Kam.
Judgment entered this 10th day of April, 2020.
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