in Re Guardianship of Laverne T. Cady

Fourth Court of Appeals San Antonio, Texas September 26, 2019

No. 04-19-00588-CV

IN RE GUARDIANSHIP OF LAVERNE T. CADY

From the Probate Court No 2, Bexar County, Texas Trial Court No. 2018-PC-4312 The Honorable Veronica Vasquez, Judge Presiding

ORDER

Thomas R. Pearson and Laverne T. Cady, both proceeding pro se, seek to appeal the trial court’s August 6, 2019 order appointing a temporary guardian of Cady’s estate. Our review of the clerk’s record raises questions regarding our jurisdiction over the appeal.

Appealability. No statute expressly provides that an order appointing a temporary guardian is final or that it is an appealable interlocutory order. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). This court has held that an order appointing a temporary guardian is interlocutory and is not appealable. See In re Guardianship of C.Y.B.,Jr., No. 04-11-00780- CV, 2012 WL 76914 (Tex. App.—San Antonio Jan. 11, 2012, no pet.) Appellants are therefore ordered to show cause why the appeal should not be dismissed for lack of jurisdiction because there is no appealable order.

Timeliness. If the interlocutory order appointing a temporary guardian were appealable, the appeal would be accelerated and the notice of appeal would have been due August 26, 2019, twenty days after the order was signed, or a motion for extension of time to file the notice of appeal was due fifteen days later on September 10, 2019. See Tex. R. App. P. 26.1(b), 26.3. The notice of appeal was filed September 3, 2019; no motion for extension of time was filed.

A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1 but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 615 (1997). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal timely. See id.; Tex. R. App. P. 26.3, 10.5(b)(1)(C); We therefore order appellants to file a response offering a reasonable explanation for failing to file the notice of appeal timely.

Standing. “Under Texas jurisprudence, an appeal can generally only be brought by a named party to the suit.” City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754 (Tex. 2003); see id. (discussing exception to general rule). From our review of the clerk’s record, it does not appear that Thomas R. Pearson was a party to the guardianship proceeding. We therefore order Thomas R. Pearson to show cause why his appeal should not be dismissed for lack of standing. See In re Guardianship of DeLuna, 286 S.W.3d 379, 383 (Tex. App.— Corpus Christi 2008, no pet.) (holding appellant did not have standing to appeal probate court’s order because appellant was not a party to the guardianship proceeding).

We order Pearson’s and Cady’s responses to this show cause order due October 11, 2019. If appellants fail to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c).

We further order all deadlines in this appeal are suspended until further order of the court.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 26th day of September, 2019.

___________________________________ Luz Estrada, Chief Deputy Clerk