in the Guardianship of May K. Jones, Incapacitated

• Court: Court of Appeals of Texas
• Decided: September 20, 2018
• Docket: 02-18-00244-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00244-CV ___________________________

IN THE GUARDIANSHIP OF MAY K. JONES, INCAPACITATED

On Appeal from the Probate Court Denton County, Texas Trial Court No. PR-2014-00591

Before Meier, Gabriel, and Kerr, JJ. Per Curiam MEMORANDUM OPINION

Appellants Kathy Jones, Judy Jones, and Candice Schwager attempt to appeal

four orders: an “Order Granting Second Successor Guardian Ad Litem’s Motion for

Use of Ourfamilywizard.com, for Medical Examination, and for Permanent

Injunction Regarding Communications” (the communications order) and three

recusal-related orders.1

On August 9, 2018, we notified appellants of our concern that we lack

jurisdiction over their appeal of the communications order—because the notice of

appeal was not timely filed—and of the recusal-related orders—because the orders are

neither final judgments nor appealable interlocutory orders. We explained that the

appeal would be dismissed for want of jurisdiction unless appellant or any party

desiring to continue the appeal filed a response by August 20, 2018, showing grounds

for continuing the appeal. Appellants did not file a response, but appellee Ellen

Nadene Smith did, conceding that the communications order was not timely appealed

but arguing that the recusal orders finally disposed of all parties or issues in a

particular phase of the proceedings—“all of the issues (including the sanctions issue)

The recusal-related orders are an “Order Denying Motion to Recuse and/or 1

Disqualify,” an “Order Imposing Sanctions Regarding Motion to Recuse and/or Disqualify and Issuing Writ of Injunction Regarding Further Motions to Recuse,” and an “Order on Findings of Fact and Conclusions of Law Regarding Motion to Recuse and/or Disqualify.”

2 surrounding the Motion to Recuse filed by Kathy Jones and Judy Jones through their

counsel of record Candice Schwager.”2

We agree with Smith that appellants did not timely appeal the communications

order. The order was signed on November 7, 2017, and assuming without deciding

that the order was final for purposes of appeal, the notice of appeal was due

December 7, 2017, but was not filed until August 6, 2018, approximately eight

months later. See Tex. R. App. P. 26.1.

But we disagree with Smith that the recusal orders finally disposed of a discrete

phase of the underlying guardianship proceedings. See De Ayala v. Mackie, 193 S.W.3d

575, 578‒79 (Tex. 2006) (op. on reh’g) (explaining that for probate order to be final

under exception to “one final judgment” rule, order must dispose of all parties or

issues in a particular phase of the proceedings). We have clarified that a recusal order

is appealable only after a final judgment has been entered, see In re Guardianship of Hart,

460 S.W.3d 742, 743 (Tex. App.—Fort Worth 2015, no pet.) (per curiam) (citing Tex.

R. Civ. P. 18a(j)(1)(A)), and there is no indication that the sanctions order, which the

trial court entered in connection with the recusal order, ended any particular phase of

the guardianship proceedings. See In re Aguilar, No. 04-16-00813-CV, 2018 WL

2 Smith also seemed to suggest that appellants had failed to timely appeal the June 29, 2018 recusal orders, but appellants filed their August 7, 2018 notice of appeal within rule 26.3’s fifteen-day extension window. See Tex. R. App. P. 26.3.

3 1176914, at *2‒3 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (mem. op.)

(dismissing appeal of sanctions order in probate matter).

Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App.

P. 43.2(f).

Per Curiam

Delivered: September 20, 2018