Opinion
05-22-00499-CV
06-14-2022
IN THE ESTATE OF CHRISTOPHER J. MERLO, DECEASED
On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-18-03799-2
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
This appeal, filed May 24, 2022, challenges the trial court's May 10, 2022 order appointing a guardian ad litem for appellant. The interlocutory order was issued in a pending action seeking the removal of the independent executor of the Estate of Christopher J. Merlo, Deceased, to which appellant is a beneficiary.
As recited in pending motions concerning the appellate record, the order was issued "sua sponte, without a motion, notice or hearing" and without "cit[ing any] grounds for the appointment." Appellant asserts two possible authorities exist for the appointment: (1) Texas Estates Code Section 1152.001 and (2) Texas Rule of Civil Procedure 173. Appellant further asserts that, if the appointment was pursuant to section 1152.001 of the estates code, the order is reviewable by accelerated appeal. If the appointment was pursuant to rule 173, appellant asserts, the order is reviewable by mandamus.
Appellant filed the appeal as an accelerated appeal "out of an abundance of caution" and states in the pending motions that she will file a petition for writ of mandamus and seek consolidation. To the extent the order is reviewable by appeal, appellant seeks in the pending motions (1) an extension of time to file the reporter's record as, under accelerated appellate deadlines, it is overdue, see Tex. R. App. P. 35.1(b); and (2) leave to file sworn record in lieu of clerk's record as authorized in accelerated appeals under Texas Rule of Appellate Procedure 28.1(e).
As of the date of this order, a petition has not been filed.
It is well-settled that an appeal may only be taken from an interlocutory order when allowed by statute or rule. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Although appellant asserts section 1152.01 of the estates code authorizes the appeal, that section concerns an order appointing a guardian, not a guardian ad litem, in a guardianship proceeding and is inapplicable. See Tex. Est. Code Ann. § 1152.01. And, our own research has failed to find a statute or rule that allows the appeal. Accordingly, we DENY the motions.
We ORDER appellant to file, no later than June 24, 2022, a letter brief showing cause why the appeal should not be dismissed for want of jurisdiction. Appellees may file any response within ten days of appellant's letter brief. If any party relies on information not on file with the Court, that party shall have filed a supplemental clerk's record containing that information.
Until the Court determines its jurisdiction, the appellate record need not be filed. The Court will reset the deadline for the filing of the record should the Court determine it has jurisdiction over the appeal. Should the Court determine it lacks jurisdiction, the Court will dismiss the appeal without further notice. See Tex. R. App. P. 42.3(a). The Court may also dismiss the appeal without further notice should appellant fail to file the requested letter brief. See id. 42.3(a), (c).
We DIRECT the Clerk of the Court to send a copy of this order to Dallas County Clerk John F. Warren; Lisabeth Kellett, Official Court Reporter for Probate Court No. 2; and, the parties.