in Re: Sonja Y. Webster

DENY; and Opinion Filed August 10, 2015.

S In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-15-00945-CV IN RE SONJA Y. WEBSTER, Relator Original Proceeding from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-10-865-2

MEMORANDUM OPINION

Before Justices Francis, Myers, and Schenck Opinion by Justice Francis

Relator filed this petition for writ of mandamus requesting that the Court order the trial court to vacate its July 2, 2015 order removing her as guardian of her adult daughter, N.S. Because we conclude the July 2, 2015 order is an appealable order, we deny the petition.

Relator is the biological mother of N.S. In October 2011, the trial court appointed relator guardian of the person of N.S. In February 2015, the trial court issued an order to show cause under section 1203.052(a)(6) of the Texas Estates Code requiring relator to show cause why she should not be removed as guardian. After a hearing on the order to show cause, the trial court signed an order dated April 2, 2015, removing relator as guardian and appointing relator and The Arc of Dallas as co-guardians. At a status conference on July 2, 2015, within the trial court’s plenary power, the trial court granted new trial and set a date for the new trial. Also at the status conference on July 2, 2015, after the trial court granted new trial and without taking any evidence, the trial court signed an additional order pursuant to section 1203.051(a)(6)(B) of the Texas Estates Code, removing relator as guardian of N.S. without notice and appointing The Arc of Dallas as guardian of the person of N.S. The order required relator to immediately surrender any letters of guardianship and deliver to The Arc of Dallas any remaining assets of the estate of N.S. The order further directed the clerk of court to issue letters of guardianship to The ARC of Dallas. Relator contends that she is entitled to mandamus relief from this order.

Ordinarily to be entitled to mandamus relief, a relator must demonstrate the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus relief is not appropriate in this case because the July 2, 2015 order removing relator as guardian is a final order subject to immediate appeal.

A final order issued by a probate court is appealable to the court of appeals. TEX. ESTATES CODE ANN. § 1022.001 (West 2015). A final judgment is one that disposes of all pending parties and claims. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Except when “specifically provided by law,” there may be but “one final judgment” rendered in any cause. TEX. R. CIV. P. 301. Probate orders are an exception to the rule that there may be only one final judgment in a case. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). In probate cases, “multiple judgments final for purposes of appeal can be rendered on certain discrete issues.” Lehmann, 39 S.W.3d. at 192. These exceptions to the one-judgment rule are necessary because of the need to “review controlling, intermediate decisions before an error can harm later phases of the proceeding.” In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.—Dallas 2009, no pet.) (citing De Ayala, 193 S.W.3d at 578).

Nevertheless, not every order in a probate case is immediately appealable. See De Ayala, 193 S.W.3d at 578. Factors to be considered in determining whether a probate order is a final order subject to appeal include whether the order adjudicated a substantial right and whether the order disposed of all issues in that phase of the proceeding for which it was brought. Id. There is no need, however, to resort to the unique probate rules used to determine whether an ostensibly interlocutory order is appealable if the order is otherwise final. In re Guardianship of Miller, 299 S.W.3d at 184.

Texas law has long recognized that an order removing a guardian is a final appealable order. See Whittenberg v. Craven, 258 S.W. 152, 155 (Tex. Comm’n App. 1924, judgm’t adopted) (guardian may appeal from the order attempting to remove him); In re Johnson, 238 S.W.3d 846, 848 (Tex. App.—El Paso 2007, orig. proceeding) (denying mandamus because any error in removing guardian could have been remedied by regular appeal); In re Guardianship of Covington, No. 02-11-00107-CV, 2012 WL 1556186, at *4 (Tex. App.—Fort Worth May 3, 2012, no pet.) (declining to address whether it was error for trial court to remove guardians because guardians had not appealed order of removal but only appealed order denying reinstatement); see also Kirkland v. Schaff, 391 S.W.3d 649, 655 (Tex. App.—Dallas 2013, no pet.) (appeal of order removing an estate administrator proper because the order brought to a conclusion a discrete phase of probate proceeding); In re Estate of Washington, 262 S.W.3d 903, 905 (Tex. App.—Texarkana 2008, no pet.) (same). Even though it may be error for a probate judge to render a final order without appropriate proceedings, an order is not interlocutory simply because such proceedings were not conducted. In re Guardianship of Miller, 299 S.W.3d at 185. 1

Although there is no question that the July 2, 2015 order removing relator as guardian is an appealable order, relator argues appeal is not an adequate remedy because a new trial on the same issues is scheduled on October 19, 2015 and the estates code does not provide any guidance for the status of relator’s removal after the new trial. The absence of guidance in the estates code does not render appeal of the July 2, 2015 order an inadequate remedy. Texas law provides the guidance not explicitly present in the estates code. A probate order is the functional equivalent of a judgment when it finally disposes of a particular issue between parties. Ajudani v. Walker, 232 S.W.3d 219, 223 (Tex. App.—Houston [1st Dist.] 2007, no pet.) Thus, the probate court’s plenary power to vacate, modify, correct, or reform a final order expires 30 days after it is signed. See TEX. R. CIV. P. 329b(d). Once a trial court loses plenary power, “any subsequent retrial would be a nullity.” In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); see also In re Torres-Medina, No. 05-14-01046-CV, 2014 WL 4403830, at *1 (Tex. App.—Dallas Sept. 8, 2014, orig. proceeding) (divorce decree and income withholding order signed after new trial conducted outside of trial court’s plenary power void).

Relator further argues that appeal is not an adequate remedy because requiring relator to challenge the removal order through an appeal deprives relator of the right to care for her adult disabled child while the appeal is pending. But mandamus “is not a substitute for and cannot be used to perform the office of an appeal.” In re State, No. 05-14-00572-CV, 2014 WL 2049545, at *1 (Tex. App.—Dallas May 15, 2014); see also In re Bernson, 254 S.W.3d 594, 596 (Tex. App.—Amarillo 2008, no pet.). Texas law provides appeal, rather than mandamus, as the method for review of orders removing a guardian under the estates code. Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West 2002) (providing for mandamus review of orders refusing to enforce mandatory venue).

Citing In re Prudential, relator finally urges us to grant the petition for writ of mandamus in this case because proceeding through mandamus review would allow the Court “to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.” We decline the invitation. There is nothing in this case that eludes review on appeal from the final judgment rendered on July 2, 2015. 2

A writ of mandamus issues to correct a clear abuse of discretion when no adequate remedy by appeal exists. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Relator has failed to establish that appeal is inadequate in this case. We deny the petition.

/Molly Francis/ 150945F.P05 MOLLY FRANCIS

JUSTICE