### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00367
- CV

In re Stephen J. Wagner

ORIGINAL PROCEEDING FROM BLANCO COUNTY

M E M O R A N D U M O P I N I O N

Re lator Stephen J. Wag ner filed a petition for writ of mandamus, complainin g of the trial court ’ s order transferring a contested probate proceeding to the district court. As explained bel ow, we conditi onally grant mandamus relief. Imogene E. Wa gner ’ s will was admitted to probat e in the Blanco County Constitutional County Court in December 2020

. Relator and real parties in interest Ronald and Ly nn Ann Wag ner a re named as benef iciaries in the will , and r eal party in interest Jerry Dennard was appointed indep endent executor of the will

. On Ma rch 24, 2021, the real parti es in int e rest filed suit against relator in the district court , alleging breach of fiduc iary duty, breach of contract, fraud, and money had and received . D ennard also filed in the county court a motion to transfer the contested portion of the probate proceedings t o the district court. On the same day, relator filed in the county court a motion to assign a statutory probate cour t judge. On March 29, the county court signed an order transferring the proceeding to district court

. A fter the district court denied hi s motion asking to have the proceeding transferred back to county court, relat or filed his petition for writ of mandamus

.2 The Texas Estates Code provides as follows:

(a) In a county in which there is no statutory probate court or county court at law exer c ising original probate jurisdiction, wh en a matter in a probate proceeding is contested, the judge of the county court may, on the judge ’ s own motion, or shall, on the motion of any party to the proceeding, according to the motion:
(1) request the assignm e nt of a statutory probate court judge t o hear the contested matter, as provided by Section 25.0022, Government Code; or
(2) transfer the contested matter to the district court, which may then hear the contested matter as if originally filed in the distric t court.
(b) If a party to a probate proceeding files a motion fo r the assignment of a statutory probate court judge to hear a contested matter in the proceeding before the judge of the county court transfers the contested matter to a district court under t his section, the county judge shall grant the motion for the ass ignment of a statutory probate court judge and may not transfer the matter to the district court unless the party withdraws the motion.

Tex. Est. Code § 32.003

. And o ur sister court has expl a ined :

With respect to contested probate matters, section 5(b

- 1) [now sect ion 32.003(b)] appears to contemplate a probate court [ 1 ] facing competing motions to transfer to district court and for assignment of a statutory probate court judge. In such a situ a ti on, section 5(b

- 1) mandates the result: the probate court shall grant the motion for assignment of a statutory probate court judge and may not transfer the contested matter to district court.

In re Lewis , 185 S.W.3d 615, 618 (Tex. App.

— Waco 2006 , orig. p r oceeding ) (citations omitted). Under the clear language of section 32.003 , the county court abused its discretion by signing the order transf erring the conteste d probate matters to the district court rather than granting relator ’ s motion for assignmen t o f a statutory pro bate court judge. See id .; see also

1 In In re Lewis , as in this case, the county had no statutory probate court or county court at law, and suit was t herefore f il ed in “ the constitutional county court , sitting in p robate. ” 185 S.W.3d 615, 61 7 (Tex. App.

— Waco 2006 , orig. pr oceeding )

.3 In re Vorwerk , 6 S.W.3d 781, 783

- 84 (Tex. App.

— Austin 1999, orig. proceeding) ( trial court abuse d its discretion in transferring probate case to district court rather than granting motion for assignm en t of stat utory probate judge ).
Denna rd argues that relief should be denied because there is no evidence that relator presented his motion to the county court before the transfer order was signed. H owever, as relator notes, the statute imposes on a t ri a l court the mandatory duty to request the assign ment of a statutory probate judge upon the filing o f a motion by a party

— it does not require that the movant set the motion for a hearing o r otherwise “ present ” the motion. See Tex. Est. C ode § 32.0 03(a), ( b) ; In re McCown , No. 10

- 20

- 00128

- CV, 2020 WL 4875579, at *2 (Tex. App

. — Waco Aug. 10, 2020 , orig. proceeding ) (mem. op.) ( “ The l anguage of Section 32.003(b) is clear that the proceeding may not be transferred to district court if a party has filed a moti on s ee king the appointment of a statutory probate court judge. ” )

. Dennard further asserts t hat relator is barre d by laches from seeking relief because he complain ed of the tr ansfer order not in the county court but in the district court , fil ing his

“ Pl ea t o the Jurisdiction and Motion Obje cting to Transfer t o District Court and R equesting Return of Case to the Blanco C o unty Court ” on April 1 9, a bout three weeks after the transf er order was signed , and then al low ing th e mo tion to linger until July 23 , wh en t he district
court dismissed it on Dennar d ’ s motion

. However, although four months can amount
to an unreasonable delay in some circu mstances, see, e.g. , River center Assocs. v
. Rivera , 858 S.W.2d 366, 367 (Tex. 1993), the parties here were engaged in se ttle me nt negotiations for several weeks , from soon a fter relator filed his objection in the distr ict court until May 13, when discussions broke down and relator sent an email explaining that he was going to set his motion for a hearing and ask ing op posing coun se l whether he preferred June 4, June 18, or July 23

. Relator set the hea ring for July 23 on opposing counsel ’ s request and fil ed a notice of hearing o n4 May 17 . Relator filed his petition for writ of mandamus on August 3, less than two weeks after th e d i st rict court dismissed his motion o bjecting to the trans fer. Given these circumstances, w e hold that relator is not barred by laches from seeking relief. Finally, Dennar d asserts that relator should have ask ed the c ounty court to vacate the trans fer ord er while it ret ained plenary power but instead “ allowed the [ transfer order ] to become a final and unappealable judgment o r order, ” asserting that the order would have been appealable under the estates code. See Tex. Est. Code § 32.001(c) ( “ A final or der is sued by a probate court is appealable to the court of appeals. ” ).
B ecause of the uniqu e nature of probate cases, the estates code creates “ special rules for what is appealable. ” C row son v. W akeham , 897 S.W.2d 779, 781 (Tex. 1995). The

su preme cou rt h as provided a test for determining when a probate order is appealable:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute contro ls. Ot he rwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory. For appell ate pur po ses, it may be made final by a severance order, if it meets the severance criteria

. . . .
Id . at 783. There is no express statute providing that a transfer decision is appealable , and as observed by this Court and our sister courts, u nder the Cr ows on t es t , a transfer order in a probate procee ding is interlocutory and not appealable. See, e.g. , Blanchard v. McNeill , No. 03

- 14

- 00511

- CV, 2015 WL 307570, at *2 (Tex. App.

— Austin Jan. 23, 2015 , no pet.) (mem.
op. ) , op
. withdrawn & superseded on reh ’ g wit hout s ubstant ive changes , 2015 WL 1546121 ; In re Est ate of Frame , No. 06

- 10

- 00073

- CV, 2010 WL 2931242, a t *1 (Tex. App.

— T exarkana July 28, 2010 , n o pet. ) (mem . op. ) ; Forlano v. Joyner , 906 S.W.2d 118, 120 (Tex. App.

— Houston [1st Dist.] 1995 , no w rit )

. Nor wou ld the district court ’ s granting of Dennard ’ s motion5 to dismiss be appealable because it dismissed relator ’ s “ P lea to the Jurisdi ction and Motion Objecting to Transfer. ” 2 See Krumnow v. Krumn ow , 174 S.W.3d 820, 826 (Tex. App.

— Waco
2005 , pet. denie d) ( “ An in terlocutory appeal from an order denying a plea to the jurisdiction is available by statute only to governmental agencies. ” )

. When the county court improperly transfer red the mat ter to the district court, relator was deprived of his “ stat utory righ t to t he assignment of a statutory probate court judge , ”

a deprivation for wh ich he lac k s an adequate remedy by appeal. See Lewis , 185 S.W.3d at 618;
Vorwe rk , 6 S.W.3d at 785; see also McCown , 2020 WL 4875579, at *2 (granting mandamus rel ief whe n tria l co urt “ c learly abused its discretion by entering orders transferring these proceedings to the district court when there were pending motions seeking the appointment of a statutory probate court judge ” ) . We conditionally grant mandamus relief with instru ctio ns t o the

cou nty court to vacate the March 29, 2021 transfer order and request the appointment of a statutory pro bate judge.

___________________ _______________________ Darlene Byrne , Chief Justice Before Chief Justice Byrne, Justices Triana and Kelly Filed: December 1 , 2021

2 Dennard ha s filed a motion to dis miss, asserting that relator ’ s petition for writ of mandamus is now moot b ecause relat or did not ap p eal from the district court ’ s dismissal of his Plea to the Jurisdiction and Motion Objecting to Transfer and that the dismissal order is no w final and una ppealable, meaning there is “ no longer a justi ciable contro versy between the parties reg arding the v a l idity of the transfer order. ” However, as we have explained, the dismissal of relator ’ s objection to the transfer was not an appealable interlocutory order. We thus deny Dennar d ’ s motio n to dismiss.