in Re the Carolyn S. Clark Irrevocable Living Trust U/T/A July 28, 2017

• Court: Court of Appeals of Texas
• Decided: October 20, 2022
• Docket: 09-22-00265-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00265-CV __________________

IN RE THE CAROLYN S. CLARK IRREVOCABLE LIVING TRUST U/T/A July 28, 2017

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On Appeal from the 457th District Court Montgomery County, Texas Trial Cause Nos. 19-06-07875-CV and 22-07-09262-CV __________________________________________________________________

MEMORANDUM OPINION

On August 12, 2022, Kristin Wilkinson Guardino and Leonard Guardino filed

a notice of appeal from an order the trial court signed on August 21, 2020, an order

granting a Traditional Motion for Partial Summary Judgment in Trial Cause Number

19-06-07875-CV. According to the notice of appeal, the August 2020 order became

final when, on July 13, 2022, the trial court signed an “Order On Plaintiff’s Motion

To Sever Trust Reformation Claims,” which severed those claims into a separate

cause.

1 After the appellants filed their appeal, the Clerk sent the parties a letter asking

the parties to state their positions about whether the August 2020 order remained in

Trial Cause Number 19-06-07875-CV, or whether the order was severed into Trial

Cause Number 22-07-09262-CV, and to explain how the trial court’s July 2022 order

of severance made the August 2020 order final.

In response to the Court’s request, the appellants advised the Court that the

July 2022 order severing the claims of the Co-Trustee of the Carolyn S. Clark

Irrevocable Living Trust didn’t make the trial court’s August 2020 order a final

order. Instead, the appellants shifted course, claiming they were appealing from the

trial court’s July 2022 order of severance, claiming that it functioned as a temporary

injunction. To support that argument, the appellants cite Qwest Communications

Corporation v. AT & T Corporation, 24 S.W.3d 334, 338 (Tex. 2000). According to

the appellants, we have jurisdiction over appeals from temporary injunctions and

they assert “this case involves an appeal of the summary judgment order issued in

lieu of” a temporary injunction, making it appealable under Texas Civil Practice and

Remedies Code section 51.014(a)(4). We disagree the character and function of the

trial court’s July 2022 order grants or denies temporary injunctive relief.

In Qwest, the Court held it is the nature of the order, not its form that

determines an order’s classification. Id. at 336. After examining the nature of that

order, the Qwest Court concluded the order functioned “as a temporary injunction[,]”

2 which made the order immediately appealable since the order granted AT & T

temporary injunctive relief. Id. at 337-38.

But that’s not the character or function of the order of severance before us

here. The trial court’s July 2022 order does not restrain or enforce any actions by

anyone. It also does not affect an earlier order the trial court signed on October 8,

2019, in which the trial court did grant the parties’ request for temporary injunctive

relief. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (providing for appeal

from an interlocutory order that grants or refuses a temporary injunction or grants or

overrules a motion to dissolve a temporary injunction).

We conclude the appellants have not shown the Court has jurisdiction to

justify granting them an extension so that the appeal may proceed as an accelerated

appeal. See Tex. R. App. P. 26.1(b); 26.3. The appeal is dismissed for lack of

jurisdiction. See Tex. R. App. P. 42.3(a); 43.2(f).

APPEAL DISMISSED.

PER CURIAM

Submitted on October 19, 2022 Opinion Delivered October 20, 2022

Before Golemon, C.J., Kreger and Horton, JJ.