Camilla Hethcoat v. Estes Dale Strain--Appeal from 29th District Court of Palo Pinto County

Opinion filed September 6, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-07-00004-CV

__________

   CAMILLA HETHCOAT, Appellant

V.

ESTES DALE STRAIN, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C41752

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

This appeal arises out of the admission of Alice W. McCarley=s 2005 will to probate. We affirm.

Background

On September 26, 2006, Estes Dale Strain filed in the Palo Pinto County Court an application to probate McCarley=s will dated February 10, 2005. On October 11, 2006, the county court signed its order admitting the 2005 will to probate and issuing letters testamentary to Strain as independent executor of the estate. On November 2, 2006, the county court signed an order approving the inventory, appraisement, and list of claims filed by Strain. On November 6, 2006, Camilla Hethcoat filed in the county court an application to probate McCarley=s holographic will dated August 14, 1987; a motion to transfer the proceedings to district court; and a motion for new trial requesting that the county court revoke the letters testamentary. The county court transferred the proceedings to the district court on November 9, 2006. On December 21, 2006, the judge of the district court signed an order denying Hethcoat=s motion for new trial. Hethcoat perfected this appeal.

Issues on Appeal

Hethcoat raises two points challenging the district court=s decision to overrule her motion for new trial. First, Hethcoat argues that the order admitting the 2005 will to probate is void because the county judge had been appointed as attorney ad litem for McCarley in a 2000 guardianship proceeding. Therefore, Hethcoat argues that the county judge was disqualified under the Texas Constitution. In her second point, Hethcoat argues that the trial court erred in denying her motion for new trial under Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939), and Hughes v. Jones, 543 S.W.2d 885 (Tex. Civ. App.CEl Paso 1976, no writ).

Disqualification Issue

Tex. Const. art. V, ' 11 provides in part that A[n]o judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case@ (emphasis added). Disqualification on constitutional grounds can be raised at any time, and any order that involves discretion and is entered by a constitutionally disqualified judge is Aabsolutely void@ and is a Anullity.@ Buckholts Indep. School Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982); In re Orsagh, 151 S.W.3d 263, 265 (Tex. App.CEastland 2004, orig. proceeding); In re Gonzalez, 115 S.W.3d 36, 39 (Tex. App.CSan Antonio 2003, orig. proceeding).

It was undisputed in the district court that the county judge represented McCarley as her attorney ad litem in the prior guardianship proceedings. It was further undisputed that the proceedings involved an emergency petition for the protection of McCarley brought by the State and that the proceedings were resolved when the trial court dissolved the temporary orders.

For a judge to be constitutionally disqualified as having Abeen counsel in the case,@ the issues and parties currently before the judge must involve the same issues and parties as the prior case in which the judge served in some capacity as counsel. City of Austin v. Cahill, 89 S.W. 552 (Tex. 1905); Slaven v. Wheeler, 58 Tex. 23, 25 (Tex. 1882); Lade v. Keller, 615 S.W.2d 916, 920 (Tex. Civ. App.CTyler 1981, no writ). As Hethcoat correctly points out, the judge will be constitutionally disqualified if the judge gave advice Aas to a matter in dispute@ and that matter later ripens into the lawsuit before him as a judge. Hobbs v. Campbell, 15 S.W. 282 (Tex. 1891); Slaven, 58 Tex. at 25; Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 623 (Tex. App.C San Antonio 2001, pet. denied); Williams v. Kirven, 532 S.W.2d 159, 161 (Tex. Civ. App.CAustin 1976, writ ref=d n.r.e.).

The parties in this proceeding are not the same parties that were involved in the matter in dispute in which the county judge served as attorney ad litem for McCarley. The parties in the emergency guardianship proceeding were McCarley and the State. The parties in the present suit are Hethcoat and Strain. The district court correctly found that the county judge was not constitutionally disqualified. Hobbs, 15 S.W. 282; Zarate, 40 S.W.3d at 623. The first point is overruled.

Denial of Hethcoat=s Motion for New Trial

Hethcoat argues in her second point that the district court abused its discretion when it denied her motion new trial. At the hearing, Hethcoat argued that a new trial was appropriate because she was unaware that McCarley had died and that as soon as she became aware she contacted her attorneys. Hethcoat alleged that the letters testamentary were issued before she had opportunity to file an application to have McCarley=s 1987 holographic will admitted to probate. In essence, both in her motion for new trial and on appeal, Hethcoat is arguing that the order admitting the 2005 will is a default judgment as to her claims and that under Craddock she is entitled to a new trial to present the 1987 will for probate. We disagree.

The record does not support her contentions that the trial court abused its discretion in denying her motion for new trial challenging the admission of the 2005 will to probate and the issuance of the letters testamentary. The second point is overruled.[1]

The order of the district court is affirmed.

TERRY McCALL

September 6, 2007 JUSTICE

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]This ruling does not affect Hethcoat=s ability to contest the admission of McCarley=s 2005 will to probate under Tex. Prob. Code Ann. ' 93 (Vernon 2003).