COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Richard Stephen Calkins v. Maurice Bresenhan, Jr., Administrator of 

the Estate of Mary Olive Hull Calkins, deceased

Appellate case number: 01-19-00703-CV

Trial court case number: 441165

Trial court: Probate Court No 2 of Harris County

On Friday, February 28, 2020, appellant filed an emergency motion to stay all trial court 

proceedings—in particular, a show cause hearing for sanctions against appellant scheduled for 

Monday, March 3, 2020—pending his interlocutory appeal from the trial court’s purported denial 

of his motion to dismiss filed pursuant to Section 27.003 of the Texas Civil Practice & Remedies 

Code. Appellant does assert that he requested a stay from the trial court before requesting relief 

from our court. For the reasons discussed below, the motion for an emergency stay is denied and 

appellant is notified that the appeal may be dismissed for lack of jurisdiction.

Appellant’s Emergency Stay Motion

Section 51.0114(a)(12) authorizes an “appeal from an interlocutory order” that “denies a 

motion to dismiss filed under Section 27.003.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) An 

interlocutory appeal from an order denying a Chapter 27 motion to dismiss stays commencement 

of trial and “also stays all other proceedings in the trial court pending resolution of that appeal.”

TEX. CIV. PRAC. & REM. CODE § 51.014(b)

In his emergency stay motion, appellant asserts that the trial court orally denied his Chapter 

27 motion to dismiss on September 26, 2019. Appellant initially filed a premature notice of appeal 

on September 19, 2019 followed by a subsequent notice of appeal on December 2, 2019 and an 

amended notice of appeal on February 28, 2020. But, contrary to appellant’s assertions, the record 

does not include an order from the trial court—either written or oral—denying appellant’s Chapter 

27 motion to dismiss. Instead, the record demonstrates that the trial court stated at the hearing on 

September 19, 2019 that it lacked authority to rule on appellant’s motion to dismiss because the 

motion was filed without the required notice. Appellant requested an order denying the motion—

asserting that he would seek mandamus relief from the denial— but the trial court stated that it 

would not rule on the motion because it could not be considered without proper notice. Instead of 

seeking mandamus relief compelling a ruling or refiling the motion to dismiss with proper notice, 

appellant filed this interlocutory appeal asserting that the trial court denied his motion.
In sum, the record does not demonstrate that appellant is appealing an order denying a 

Chapter 27 motion to dismiss. Instead, appellant is attempting to appeal from a refusal to rule on 

his motion, which is neither an authorized appeal nor covered by the stay. Accordingly, the motion 

for an emergency stay relief is denied.

Notice of Intent to Dismiss for Want of Jurisdiction

Furthermore, because the trial court has not issued an order denying appellant’s Chapter 

27 motion to dismiss, our court appears to lack jurisdiction over the appeal. This Court has 

jurisdiction only over appeals from final judgments and those interlocutory orders specifically 

authorized by statute. See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); Lehmann 

v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex. 2001); see also TEX. CIV. PRAC. & REM. CODE § 

51.014. Although Section 51.014(a)(12) authorizes an appeal from an interlocutory order denying 

a Chapter 27 motion to dismiss, there is no authority authorizing an appeal where, as in this case, 

the trial court refuses to rule on a Chapter 27 motion to dismiss. TEX. CIV. PRAC. & REM. CODE § 

51.014(a)(12). Accordingly, appellant is notified that the court may dismiss this appeal for want 

of jurisdiction unless appellant files, within 10 days of this order, a written response providing a 

detailed explanation, citing relevant portions of the record, statutes, rules, and case law 

demonstrating that this Court has jurisdiction over the appeal. See TEX. R. APP. P. 42.3(a). If a 

meritorious response is not received in the form described above by the deadline, the Court may 

dismiss the appeal for want of jurisdiction without further notice.

It is so ORDERED.

Judge’s signature: ______/s/ Sarah B. Landau____

Acting individually 

Date: ___February 28, 2020_______