                                 NO. 07-10-0127-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                SEPTEMBER 21, 2010

                         ______________________________


        IN THE ESTATE OF PHILLIP MORRIS KRUMNOW, SR., DECEASED

                       _________________________________

                 FROM THE COUNTY COURT OF FALLS COUNTY;

               NO. 6862; HONORABLE JAMES F. CLAWSON, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


         MEMORANDUM OPINION ON APPELLEE'S MOTION TO DISMISS


      According to the record filed, Appellant, Phillip Morris Krumnow, Jr., was

appointed as Independent Executor of the Estate of Phillip Morris Krumnow, Sr.,

Deceased, and letters testamentary were issued on October 30, 2002. Appellant was

subsequently removed as Independent Executor on May 14, 2003. This is an attempt

to appeal a preliminary probate court ruling in a proceeding seeking the appointment of

a successor personal representative of the estate. Here, Appellant has filed a notice of

appeal from the trial court's order overruling his objection to the assignment of Senior

Judge James F. Clawson, Jr. as presiding judge. Appellees, Norma Cora Withem,
Bettie Lanelle Mendenhall, and Robert R. Krumnow, have filed a Motion to Dismiss this

appeal contending this Court has no jurisdiction to entertain Appellant's case. For the

reasons expressed herein, we grant Appellees' motion and dismiss this purported

appeal for want of jurisdiction.


        After the Honorable R. Steven Sharp entered an order disqualifying himself from

presiding in the underlying probate case, the presiding judge of the Third Administrative

Judicial Region, pursuant to § 74.056 of the Texas Government Code,1 signed an order

dated January 7, 2010, assigning the Honorable James F. Clawson, Jr., Senior Judge

of the 169th Judicial District, to preside over the case. Although Appellant contends that

he did not receive actual notice of the assignment of Judge Clawson until he received

"the notice of hearing on the Appointment of a Successor Executor," the record is

devoid of any reference to that date.2 Appellant filed his Objection to Assigned Judge

on January 29, 2010, followed by an Amended Objection to Assigned Judge on

February 1, 2010. Without a hearing, finding the objection to be untimely as a matter of

law, Judge Clawson entered an order overruling Appellant's challenges on February 2,

2010. Appellant filed his notice of appeal on March 1, 2010.3




1
Tex. Gov't Code Ann. § 74.056 (Vernon 2005).
2
 An objection to the assignment of a trial judge under Chapter 74 of the Texas Government Code must be
filed not later than the earlier of the seventh day after the date the party receives actual notice of the
assignment or the date the first hearing or trial, including pretrial hearings, commences. Tex. Gov't Code
Ann. § 74.053(c) (Vernon 2005). Except as specifically provided, each party to the case is entitled to only
one objection under § 74.053. If a properly filed objection is timely, the assigned judge's disqualification is
automatic. See Tex. Gov't Code Ann. § 74.053(b) (Vernon 2005); In re Canales, 52 S.W.3d 698, 701
(Tex. 2001). The determination of timeliness is a mixed question of law and fact.
3
 Even if this were a permissible interlocutory appeal, the notice of appeal was not filed within the twenty
days in which to perfect such an appeal. See Tex. R. App. P. 26.1(b).


                                                      2
        Appellant filed his brief on June 25, 2010, raising the following two issues:


        1. Because Appellant did not receive notice of the January 7, 2010,
        assignment, the trial court abused its discretion in denying his objection to
        the assigned judge based on the finding that his objection was not timely
        filed.

        2. The trial court abused its discretion in not conducting a hearing on the
        record on Appellant's objection to assigned judge for the reason that a
        hearing is required.



In response, Appellees filed their brief which incorporated a motion to dismiss for want

of jurisdiction.


        By letter dated August 3, 2010, this Court advised Appellant of the potential

interlocutory nature of the order being appealed and directed him to demonstrate on or

before August 13, 2010, why this appeal should not be dismissed for want of

jurisdiction. On August 17, 2010, Appellant filed his response asserting he was denied

the fundamental right to a hearing on his objection.               Relying on In re Canales, 52

S.W.3d 698, 701 (Tex. 2001), he argues that because orders of an assigned judge who

should have been removed after a timely objection are void, it would be a waste of time

and judicial resources to not address the issue on an interlocutory basis.4


                                      Interlocutory Appeals


        At the outset, this Court is obliged to determine issues affecting our jurisdiction

over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678


4
 In re Canales was an original proceeding wherein the Petitioner sought a writ of mandamus to compel an
appellate court to withdraw its conditional granting of a writ of mandamus directing an assigned judge to
disqualify himself from further proceedings in an underlying cause of action based upon the timeliness of
an objection to his assignment.

                                                   3
(Tex. 1990).     Our jurisdiction is established by various constitutional and statutory

provisions. See Tex. Const. art. 5 ' 6. See also Tex. Gov=t Code Annotated ' 22.220

(Vernon Supp. 2009). As a general rule, before a judgment or order is appealable, it

must be a final order disposing of all parties and issues. Lehmann v. Har-Con Corp. 39

S.W.3d 191, 195 (Tex 2001); North E. Indep. School Dist. v. Aldridge 400 S.W.2d 893,

895 (Tex. 1966). An order or judgment which does not dispose of all parties and issues

is interlocutory and this Court is without jurisdiction to review it absent an express grant

of authority. See Warford v. Childers, 642 S.W.2d 63, 65 (Tex.App.--Amarillo 1982, no

writ).


         Section 51.014(a) of the Texas Civil Practices and Remedies Code does grant

express authority to appeal certain interlocutory orders. See Tex. Civ. Prac. & Rem.

Code ' 51.014(a) (Vernon 2008). Because this appeal pertains to a matter not falling

within any of those statutory exceptions, we find no statutory basis for jurisdictional

authority.


         Appellant's argument that dismissing this appeal would be a waste of judicial

resources is also without merit. Just as in Canales, Appellant has an appropriate and

adequate remedy via a mandamus proceeding.


         Accordingly, Appellees' Motion to Dismiss is granted and this purported appeal is

dismissed for want of jurisdiction. Tex. R. App. P. 42.3(a).




                                                 Patrick A. Pirtle
                                                     Justice


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