NUMBER 13-13-00592-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

IN RE PARKER FAMILY TRUST

On Appeal from the 126th District Court of Travis County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Perkes and Longoria Memorandum Opinion Per Curiam Robert W. Dillard attempts to appeal from a district court order in a cause in which he was not a party.1 Dillard requests that we vacate the district court’s order accepting the resignation of trustee, Janis Alesi, and appointing Jessica Parker Valentine and Bryan L. Parker the trustees of the Parker Family Trust.2 By three issues, Dillard contends that

In addition, Dillard did not successfully intervene post-judgment. A notice of appeal is due thirty days from the date of judgment or, if a timely post-judgment motion is filed,

for, among other things, breach of fiduciary duty in a separate proceeding not before us here.

4Dillard’s issues are probably moot because the probate court has already appointed a new trustee and Jessica and Bryan are no longer the trustees of the Parker Family trust.

The Texas Supreme Court has noted that, in determining whether an appellant should be considered a “party” for purposes of appeal, “the most important consideration is whether the appellant is bound by the judgment.”

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 168 S.W.3d 867, 870 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Here, Dillard has not contended that he is bound by the complained-of order. In fact, the record shows that Dillard resigned as trustee and Alesi was appointed the new trustee prior to the district court’s order. It appears to us that Dillard’s complaint basically focuses on the fact that the district court appointed Jessica and Bryan as successor trustees, and Dillard does not agree that they should have been allowed to be trustees of the Parker Family Trust.

within ninety days of the date of judgment. See TEX. R. APP. P. 26.1(a). A non-party may not file a motion for new trial unless the non-party successfully intervenes. Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.). To successfully intervene post-judgment, the plea in intervention must be filed and the judgment must be set aside within thirty days of the date of judgment. Id.; First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (orig. proceeding) (per curiam) (explaining that a plea in intervention cannot be considered unless judgment is set aside).

Dillard did not file a motion to intervene, and the district court did not set aside the complained-of order within thirty days of the date of the order. Thus, Dillard’s attempted intervention, if any, could not be successful. See White, 682 S.W.2d at 252. Accordingly, Dillard was not entitled to file his motion for new trial, which would have extended the time in which to perfect his appeal, had he successfully intervened post-judgment. See Malone, 182 S.W.3d 468.

Therefore, even assuming that Dillard had a right to appeal the district court’s order in this case, his notice of appeal was untimely. The complained-of order was signed by the district court on June 21, 2013 and Dillard filed his notice of appeal on September 16, 2013 more than thirty days after the complained-of order was signed. Accordingly, we dismiss this attempted appeal for want of jurisdiction.6

Per Curiam Delivered and filed the 14th day of August, 2014.