Texas Appellate Jurisdiction -

Recent Estate and Guardianship[1] Cases

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The Issue

The Texas Probate Code provides that “[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.”[2] The question is how it applies to a particular order in an ongoing proceeding? Is the order “final” and appealable, or is it not?

In Crowson v. Wakeham, the Texas Supreme Court announced a test to determine whether a probate or guardianship order is final and appealable despite an ongoing probate or guardianship proceeding. The Supreme Court sought to bring clarity and precision to a vague and confusing concept. It failed. Alas, the precise and clear test announced in Crowson is imprecise and vague. Confusion continues. The courts of appeals are not sure what the Supreme Court meant. Maybe the Supreme Court doesn’t know either. The concepts are fundamentally difficult and vague. If there is a clear test for finality and appealability, the Crowson test is not it.

Appealability matters. The issue is not an academic one. There are real consequences for getting it wrong. If a party fails to appeal a final order, the order cannot be challenged later. If a party appeals an order that is not final, the appeal is dismissed. A dismissed appeal can be expensive, time consuming, embarrassing, and futile. A failure to appeal can lose a case.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations; deleted original emphasis, added the authors emphasis; and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. The footnote will have the court’s citations.

3. Footnotes by the author contain commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

The Objective of this Course

This course is a study of Crowson and the cases which follow it. Upon completion, you will know all there is to know about these decisions, and the reasoning of the courts. You may develop a healthy humility about your ability, and the ability of the courts, to determine if a Texas probate or guardianship order is final and appealable.

The philosophy of this courses is that you are better educated if you read the words of the court, rather than only the words of the teacher. Therefore, this course relies of the opinions of the court, with editing to provide focus on the particular issue and to make the material easier to read and comprehend. The author provides commentary, ideas, and questions as a supplement to the words of the courts. The author’s words are either in footnotes or in introductory text prior to each case. The author includes rhetorical questions to challenge and stimulate your thought process.

Recent cases may be subject to rehearing or further appeal. Opinions may be withdrawn or reversed. They should not be cited or relied upon without reviewing their status. This course is about what the courts are deciding and the basis for their decisions. Even opinions that will be revised or reversed are useful for this purpose. Even cases that are wrongly decided are instructive. Consider the opinions and make your own evaluation of the issues. Form your own opinions. You may come to different conclusions from those of the courts, or you may reach the same conclusions by a different analysis. If you don’t wonder about some of the opinions in this course, you may not be paying attention. Several of the cases involve very intricate issues and complex facts. The judges may have no probate litigation background. It is not surprising if they err.

Keeping Score

Some might want to note the number of cases in which:

1. The court of appeals finds that an appealed probate order is final and it has jurisdiction to hear the appeal.

2. The court of appeals finds that an appealed probate order is interlocutory and it lacks jurisdiction to hear the appeal.

3. The court of appeals finds that a probate order which was not appealed is final and may no longer be appealed.

4. The court of appeals finds that a probate order which was not appealed is interlocutory and may be contested.

5. The court of appeals claims that judicial efficiency is a goal, thus demonstrating their sly sense of humor.

Table of Cases

Crowson v. Wakeham 897 S.W.2d 779 (Tex. 1995)

Forlano v. Joyner 906 S.W.2d 118 (Tex.App.-Houston. [1st Dist ] 1995)

Spies v. Milner 928 S.W.2d 317 (Tex. App. Ft. Worth 1996)

Coleson v. Bethan 931 S.W.2d 706 (Tex. App. Ft. Worth 1996)

In re Estate of Vigen 970 S.W.2d 597 (Tex.App.-Corpus Christi 1998)

Stubbs v. Ortega 977 S.W.2d 718 (Tex.App.-Fort Worth 1998)

A & W Industries Inc. v. Day 977 S.W.2d 738 (Tex.App.-Fort Worth 1998)

Estate of Crenshaw 982 S.W.2d 568 (Tex. App. Amarillo 1998)

In re Murphy, 1 S.W.3d 171 (TexApp Fort Worth 1999)

•Majority Opinion by Justice Richards, joined by Justice Day

•Dissenting Opinion by Justice Brigham

Murphy v. Murphy 21 S.W.3d 797 (Tex.App.-Houston [1st Dist.] 2000) (per curiam)

Estate of Navar v. Fitzgerald14 S.W.3d 378 (TexApp El Paso 2000)

Woollett v. Matyastik 23 S.W.3d 48 (Tex. App. Austin 2000)

Columbia Rio Grande Regional Hospital v. Stover 17 S.W.3d 387 (TexApp -Corpus Christi 2000)

Logan v. McDaniel, 21 S.W.3d 378 (TexApp - Austin 2000)

In re Premier Parks February 26, 2002 (TexApp - Fort Worth 2002)

Brittingham-Sada de Ayala v. Brittingham March 13, 2002 (TexApp - San Antonio 2002)

The Course Text

Texas Appellate Jurisdiction - Recent Estate and Guardianship Cases

Commentary on Crowson

The Crowson test is troublesome. It may be less helpful than the Probate Code itself.

Section 5(f) of the Probate Code allows an appeal from “all final orders.” It is a statute. It expressly provides for appeal. Crowson seems to create two separate rules.

One Crowson rule applies when there is an express statute declaring finality and providing for appeal. Apparently §5(f) doesn’t suffice. The “statute controls.” Apparently §5(f) does not apply. Apparently no appeal is allowed before the appeal contemplated by the express statute. That seems to be the Crowson rule whether it makes sense in a particular case or not. It seems to be the case even though an order is the last order applicable to a party, if there are other parties with issues still unresolved. In other words, after one party's claims are fully resolved, that party must wait for all other claims to be resolved before there can be an appeal related to the party whose claims were first resolved. At least, that was what happened in Crowson.

The other Crowson rule applies when there is no such express statute. It does not allow appeal until (1) there is an order; and (2) there are no unresolved pleadings involving any party (whether that party is involved in the order) in the same “part “of the “proceeding” as the order.

The definition of the “part” of the “proceeding” in which the order was entered is left to the imagination of future courts and litigants. The issue in these cases is usually whether the order was a part of a “part” of the proceeding which continued after the order, or whether the order finished the “part” of the proceeding in which it was a part. The answer seems to be in the eye of the beholder.

Crowson encourages severance to make an order appealable. In many cases that may eliminate the issue.

Crowson also restates the “policy to avoid constructions that defeat bona fide attempts to appeal.” Does this mean that the construction might favor appeal if an appeal is taken, and a finding that the order was not appealable until it is appealed? What do you think it means?

The courts of appeals do not know what to think about the “substantial right” references in Crowson. What do you think the court means?

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Crowson v. Wakeham 97 S.W.2d 779 (Tex. 1995)

In Crowson, an order rejected all of Crowson’s claims to the estate. Were Crowson’s claims part of a proceeding to determine her claims or part of a proceeding to determine the claims of all purported heirs? The court of appeals held that the resolution of her claims was a final order appealable by Crowson. The Supreme Court held that it was interlocutory because the trial court had not decided the validity of claims of other people, but, when Crowson’s claim was severed, it became final and appealable.

The court of appeals in Crowson did not issue an opinion, but did write this letter prior to dismissing the appeal for lack of jurisdiction.

“Counsel:

“After reviewing the transcript in this case, the Court has questions concerning its jurisdiction over this cause. Specifically, all rights of Bonnie Crowson in the estate of George Alfred Brisson, Jr., deceased, seem to have derived from her claim that she was his common-law wife. On March 30, 1993, the trial court signed an order declaring that Crowson was not his common-law wife. This order appears to have adjudicated all of Crowson's substantive rights concerning the estate and, in a probate context, would appear to be the final order for appellate purposes.[3]

“Under this analysis, however, the subsequent severance was unnecessary to make the summary judgment appealable and the appellate timetable to complain about the trial court’s judgment that Crowson was not the decedent's common-law wife ran from March 30, 1993. Therefore, this appeal appears to be untimely. . . . .”

The Crowson opinion of the Texas Supreme Court is the following:

“This is an attempt to appeal a probate court ruling in a will contest and application to determine heirship proceeding. The trial court granted a partial summary judgment against Bonnie Crowson, who claimed to be the common law wife of the decedent, on the ground that she was not his common law wife. The trial court later severed the Crowson summary judgment. Crowson followed the appellate timetable from the severance order, not the partial summary judgment order. The court of appeals determined that the appeal was untimely because the original partial summary judgment was an appealable order under the Probate Code. 1[4] We hold that the partial summary judgment order was interlocutory because of the contested heirship proceeding. Since the appeal from the severance order was timely, we reverse the judgment of the court of appeals and remand the cause to that court for further proceedings.

“George A. Brisson, Jr., died on August 4, 1989. He had no children. Ann Blanks filed a will for probate which she alleged that Brisson executed. The will named Blanks as the sole beneficiary and independent executrix. Bonnie Crowson filed a contest to the application to probate the will. She alleged she was the common law wife of Brisson. She also filed a counterclaim to Blanks' will proceedings seeking actual and exemplary damages for what she alleged was Blanks' knowing and willful attempt to defraud her.

“Jerry Edwin Wakeham and four other people filed an intervention alleging they were cousins and heirs of decedent. They also contested the will, but alleged they were the true heirs. Carol Grey Honza filed an application to determine heirship and contest of the will. She alleged not only that the Blanks will was a fraud, but also that Brisson had left a will devising his property to his mother, who predeceased him. She alleged that since gifts to his mother lapsed, an heirship proceeding was necessary to determine the heirs under the intestate descent and distribution laws. Several other purported cousins or relatives also intervened in the heirship and will contest proceeding. All the intervenors contested Crowson's allegation that she was Brisson's common law spouse.

“Blanks voluntarily nonsuited her application to probate her version of Brisson's will. The controversy that was left involved the heirship determination, and specifically as to Crowson, whether she was the common law wife. The intervenors filed a motion for summary judgment, based on deemed admissions that Crowson was not the common law wife, which the trial court granted on March 30, 1993. Crowson filed a motion for reconsideration to this order, which was overruled. On June 1, 1993, at Wakeham's request, the trial court signed an order severing the partial summary judgment from the other issues in the heirship proceeding. The stated reason was to make it final for appellate purposes. Crowson filed a motion for rehearing of the summary judgment. The court denied this motion. Following the appellate timetable for the June 1, 1993 order, Crowson filed an appeal that was timely if the severance set the date, but untimely if the March 30, 1993 partial summary judgment date controlled.

“After receiving the transcript but before receiving any briefs, the court of appeals on its own motion sent a letter to all counsel requesting briefs on whether the March 30 order was a final order for purposes of appeal. Since there is no opinion and the letter comes closest to explaining the court of appeals' reasons for dismissal, we reproduce it in the margin.[5] After the parties submitted briefs, the court of appeals issued an order dismissing the appeal for want of jurisdiction because it was untimely.

“The court of appeals correctly noted that the probate statutes create special rules for what is appealable in probate cases. As we have explained:

[I]n order to authorize an appeal in a probate matter, it is not necessary that the decision, order, decree, or judgment referred to therein be one which fully and finally disposes of the entire probate proceeding. However, it must be one which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding is brought.... This statute doubtless has application only to such decisions, orders or judgments as at the end of a term would be held conclusive as adjudicative of some controverted question or right, unless set aside by some proceeding appellate or revisory in its nature. [Citations omitted.][6]

We subsequently wrote:

We interpret [former Probate Code § 28, recodified as § 5(e) ] to mean that it has application only to such decisions, orders or judgments as at the end of a term would be held to have conclusively adjudicated some controverted question or right, unless set aside by some proper appellate or revisory procedure. [Citation omitted.] If the motion to dismiss the contest on the ground that contestants had failed to show an interest in the estate had been sustained, the order would have finally disposed of the controverted question involved, and would have been appealable. Since the order overruling respondents’ motion to dismiss failed to finally dispose of the controverted issue, it, therefore, amounts to no more than an interlocutory order, inclusive in its nature made in the progress of the trial, and, therefore not appealable.[7]

“Both decisions leave much unanswered about how broad or narrow the ‘issue’ must be to constitute an appealable portion of the proceeding. We have also, on occasion, stated the standard to be that all issues of law and fact between the parties involved have been resolved.[8]

“The case cited by the court of appeals’ letter, Estate of Wright,[9] is frequently cited for its language that adjudication of ‘in other words, a substantial right’ makes the probate order appealable.[10] In Wright, the substantial right adjudicated was the heirship of all the heirs. The court held that the trial court could not go back and reopen the heirship determination to exclude some previously adjudicated heirs. The case is clearly distinguishable from the present situation in that Wright made a complete determination of all heirship claims but here only Crowson is determined not to be an heir, leaving the numerous other heirship issues still pending. Further, the court described the appealable probate order as disposing of ‘issue(s) involved in that particular phase of the probate proceeding.’[11] Under the present facts, the trial court's conclusion that the established facts negate Crowson’s claim to be an heir does not automatically dispose of the heirship claims of all the intervenors and consequently does not dispose of this whole ‘particular phase’ of the probate proceeding. Additionally, the Wright opinion recognized that a special provision, TEX.PROBATE CODE § 55(a), expressly provided the heirship proceeding judgment ‘shall be a final judgment.’[12]

“The Wright opinion does cite a number of other cases with the ‘substantial right’ language applied in a variety of contexts. 3[13] We have used the ‘substantial right’ language ourselves in making an analogy to the standards for an appealable receivership order.[14]

“While it is true that the determination that Crowson was not the common law wife adjudicated her substantial right because she had no other basis to claim as an heir, it also left pending all the other heirship rights of the intervenors. The substantial right language always appears as one of the factors for determining whether a probate order is appealable, but equally important is our language that the order must dispose of all issues in the phase of the proceeding for which it was brought. Crowson originally brought her action against Blanks to contest the first will. That action ended when Blanks nonsuited. Blanks and Crowson are not adverse parties to this appeal. The intervenors all brought actions against Crowson as part of the larger heirship proceedings. As between Crowson and the intervenors, the proper ‘phase’ of the proceeding is the heirship determination. The pleadings to exclude her from heirship all appear in applications seeking to establish the respective intervenors’ own heirship claims. We acknowledge our language heretofore has been somewhat ambiguous, but we do not believe that the ‘phase’ or proceedings which raised the intervenors’ contest with Crowson, when properly construed in this case, could be anything other than the whole heirship proceeding.

“Because of the potential confusion, we adopt the following test for probate appeals. 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 controls. Otherwise, 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 appellate purposes, it may be made final by a severance order, if it meets the severance criteria, as did the order in the present case. In setting this standard, we are mindful of our policy to avoid constructions that defeat bona fide attempts to appeal.[15] A severance order avoids ambiguities regarding whether the matter is appealable. Litigants can and should seek a severance order either with the judgment disposing of one party or group or parties, or seek severance as quickly as practicable after the judgment.

“Under either the old or new standard, we hold that the partial summary judgment against Crowson was interlocutory as a probate order. The appellate timetable commenced with the date of the severance order and Crowson's appeal bond was timely. We reverse the judgment of the court of appeals dismissing the appeal as untimely, and remand the cause to that court for further proceedings consistent with this opinion.

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Forlano v. Joyner, 906 S.W.2d 118 (Tex.App.-Houston [1 Dist.] 1995) (per curiam)

A contract case was transferred from another court to the statutory probate court to become part of a guardianship proceeding that was filed after the contract case began. Is the transfer order appealable? Is it part of a “part” of a proceeding, or is it the only part of a “part?” The court says it was not an order for which there could be a severance.

“The appellees have filed a motion to dismiss this appeal. For the following reasons, we grant the motion and dismiss the appeal.

“The appellant sued appellee Victor Joyner, John Joyner, and others, based on a purported fee contract between the appellant and Victor Joyner. The appellant brought suit in Harris County Civil Court Number One. Shortly after the appellant filed suit, Harris County Probate Court Number One, acting on a guardianship application, appointed John Joyner to be Victor Joyner's guardian. John Joyner then moved to transfer the appellant's lawsuit from Harris County Civil Court Number One to Harris County Probate Court Number One.

“The trial court granted the motion to transfer, and the appellant is now attempting to appeal the order. The order is styled ‘Order of Transfer.’ The order states that the motion to transfer is granted; transfers the cause pending at the time in Harris County Civil Court Number One to Harris County Probate Court Number One; assigns a new cause number and style; and orders the clerk of Harris County Civil Court Number One to prepare certified copies of all documents in that court's file and transfer the certified copies to Harris County Probate Court Number One.

“Section Five of the Probate Code, entitled ‘Jurisdiction of District Court and Other Courts of Record with Respect to Probate Proceedings and Appeals from Probate Orders,’ states in subsection (f) that ‘[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.’[16] The Supreme Court of Texas has recently adopted a new test for determining appealability in probate matters:

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 controls. Otherwise, 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 appellate purposes, it may be made final by a severance order, if it meets the severance criteria, as did the order in the present case.[17]

“There is no express statute that declares a decision to grant or deny a transfer of a case to probate court to be final and appealable.[18] Thus, we proceed to determine whether there is a proceeding of which the transfer order may logically be considered a part, and whether one or more pleadings also part of that proceeding raise issues or parties not disposed of.

“The ‘proceeding’ of which the transfer order may logically be considered a part is the appellant's lawsuit for breach of contract; the transfer order transferred the contract action, not the guardianship action. ‘One or more pleadings’ in the contract action have raised issues that are clearly not yet disposed of. These facts, under Crowson, indicate that the transfer order is interlocutory. See also Grounds v. Lett[19] (a probate court order, granting a motion to transfer a case pending in another county, is interlocutory and not appealable).

“Furthermore, under Crowson, this transfer order could never, by itself, be appealable. Crowson states that an interlocutory probate order may be made final and appealable ‘by a severance order, if it meets the severance criteria[.]’ [20] However, unlike the partial summary judgment order in Crowson, which the court held was made final and appealable by a severance order,[21] the transfer order in this case could not be subject to a severance order. The partial summary judgment order in Crowson resolved a claim that could properly be severed.[22] The transfer order, on the other hand, does not resolve a ‘claim’ at all, and is thus not severable. See H.E. Butt Grocery Co. v. Currier[23] (holding that an order granting a motion to compel discovery could not be severed because it ‘does not address a 'claim' that may be severed under the rules’).

“Under Crowson, the transfer order in this case is not appealable. We grant the appellees’ motion and dismiss the appeal.”

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Spies v. Milner 928 S.W.2d 317 (Tex. App. Ft. Worth 1996)

Spies followed Crowson by over a year, yet the Ft. Worth court of appeals uses the wrong test and seems unaware of Crowson. Spies involves disqualification of a potential executor with a Will contest continuing.

“Marie Burkes died on January 15, 1995. The court appointed appellee S. Camille Milner temporary administratrix. Appellant Emma Jean Spies appeals this order. Because we find that the probate court did not abuse its discretion in finding that Emma was disqualified to serve as the executrix of the estate, we affirm the judgment of the probate court.

“Marie left a will dated March 7, 1990 that, in a November 13, 1991 codicil, named Emma, Marie's daughter, executrix of her estate. If Emma was disqualified, Marie's other daughter, LaVeta Lutomski, was named alternate executrix. Emma filed the March will and the November codicil, requesting that she be appointed executrix. Bob Burkes, Emma's brother, filed an opposition to Emma's application and requested that he be named the executor of Marie's estate. Bob was initially named executor in Marie's March will, but the November codicil revoked that appointment and named Emma. LaVeta opposed Bob's application. Marshall Burkes, Emma's other brother, filed a will contest and a plea in abatement.

“The probate court held a hearing on Emma's application, Bob's opposition to Emma's application, Bob's application to be named executor, LaVeta's opposition to Bob's application, and Marshall's plea in abatement. The court specifically did not hear Marshall's will contest. After the hearing, LaVeta filed an application to be named executrix, and Marshall contested her application. The probate court then entered an order denying Bob's and Emma's applications and appointing Camille temporary administratrix of Marie's estate.

“We will first address Camille's allegation . . . that we have no jurisdiction over this case because there is no final judgment that disposes of all issues and parties, i.e., Marshall's will contest.

“To appeal a probate matter, an appellant does not have to wait until a decision, order, or decree fully and finally disposes of the entire probate proceeding.[24] To be appealable, the order only has to finally dispose of the issue or controverted question for which that particular part of the proceeding was brought.[25] Thus, a probate order is appealable if it ‘finally adjudicates a substantial right.’[26]

The nature of ‘administration’ contemplates decisions to be made on which other decisions will be based. There must be a practical way to review erroneous, controlling, intermediate decisions before the consequences of the error do irreparable injury.[27]

“The order at issue in this appeal finally adjudicates a substantial right--Emma's right to serve as executrix of Marie’s estate. The order specifically states that Emma is disqualified to serve as the personal representative of Marie’s estate. It is final as to Emma’s rights as executrix. It is a final appealable probate order, and we have jurisdiction over this appeal.”

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Coleson v. Bethan 931 S.W.2d 706 (Tex. App. Ft. Worth 1996)

Coleson covered ground with brevity.

“The [Finding of Fact] states that the Probate Court's . . . Order continuing Coleson's appointment as attorney ad litem was an interlocutory and non-final order. This finding is incorrect since such an order is a final, appealable order in a probate matter.[28]^”

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In re Estate of Vigen, 970 S.W.2d 597 (Tex.App.-Corpus Christi 1998)

The trial court refused to admit a Will to probate and refused to issue letters to an individual seeking to represent the estate. Is that order a final and appealable order? This court says it is.

“Appellant Helen James brings this appeal from an order denying her application for letters testamentary in the estate of Wilhelm Vigen. Wilhelm Vigen died on January 16, 1995. Helen James was not related to Wilhelm, but cared for him in his later years. Wilhelm Vigen was ninety-six years old at the time of his death. James was eighty-nine at that time. Marion Vigen, Wilhelm's niece and the appellee in this proceeding, was appointed temporary administrator of his estate on March 28, 1995. On April 26, 1995, James applied for probate of a will written by Wilhelm in 1992. The will named James as executor of his estate, but did not provide for independent administration. Marion Vigen opposed James’s application. A hearing was held on James’s application and the trial court found that the will was entitled to probate; however, the court also found that a substantial conflict of interest between James and the estate rendered James unsuitable to serve as executor of the estate. 1[29] Therefore the trial court ordered that Marion Vigen continue as administrator until such further order of the court.

“James brings eight points of error on appeal, arguing that the trial court erred in failing to admit the will to probate; failing to revoke the previous letters testamentary and either grant letters testamentary to James or grant letters of administration with will annexed; conducting its own cross-examination of James; finding a conflict of interest between James and the estate and that James was unsuitable to serve as executor; and in considering inadmissible testimony. We hold that the trial court erred by failing to admit the will to probate and grant administration of the estate with will annexed.

Appealability

“We first consider Marion Vigen’s contention that this appeal should be dismissed because the trial court’s order was not a final, appealable order. The Texas Supreme Court has articulated the following test for determining whether an order arising from probate proceedings is final or interlocutory:

“Marion argues that, because the trial court ordered that she continue as administrator ‘until such further order of the court,’ the order was not final and the issue of whom should be the administrator of the estate remained open. We do not agree. The trial court's order settled James’s claim to be the executor.[31] There are no ongoing proceedings relevant to this issue,[32] and no ‘pleadings also part of that proceeding’ concerning ‘issues or parties not disposed of.’ Our decision comports with the decision of the Fort Worth Court of Appeals in Spies v. Milner.[33] In Spies, the trial court found Emma Spies to be unsuitable to serve as executor of the estate of Marie Burkes and denied her application to be appointed executor. In finding that the order denying Spies application was a final, appealable order, the appellate court noted that ‘the order specifically states that Emma is disqualified to serve as the personal representative of Marie's estate. It is final as to Emma’s rights as executrix.’[34] 2[See footnote discussion below] Similarly, in this case, the order specifically stated that James ‘is disqualified to serve as executrix of the estate.’ We hold that this was a final, appealable order.

Footnote #2 by the court is the following:

“2 Spies did not explicitly apply the analysis stated in Crowson. Rather, Spies applied a ‘substantial right’ analysis, citing Vineyard v. Irvin.[35] Crowson acknowledged the ‘substantial right’ analysis and described it as ‘one of the factors for determining whether a probate order is appealable.’ Crowson.[36] The Crowson court felt that a new articulation of the rule for appealability of probate orders was necessary because ‘our language heretofore has been imprecise.’[37] We do not consider Crowson to have invalidated the ‘substantial right’ analysis relied on in Spies.”[38] [39]

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Stubbs v. Ortega, 977 S.W.2d 718 (Tex.App.-Fort Worth 1998)

How would you feel if, after 50 years of marriage, your daughter is appointed as your guardian and she decides that you and your husband, her father, should get a divorce. Maybe you wouldn’t feel anything if you were in the final stages of Alzheimer's disease and could not see, speak, or hear. How would you feel if you were the husband of the ward and father of the guardian? How would you feel about a fight over it? How would you feel about an appeal? How do you feel about this case? Aside from those feelings, is a guardianship court’s approval of a guardian’s request for authority to seek a divorce for for the ward appealable? This court of appeals holds that it is. Even if you agree with the result, read the opinion’s last quoted paragraph to determine if the court of appeals is correctly analyzing the issues. What would the result be in Crowson if this court's analysis was applied in Crowson?

“This is an appeal from an order in a guardianship proceeding. The parties are Burinda Beth Ortega, the guardian; Marcella Tabor, the ward and Ortega's mother; and Clyde Tabor, Marcella's husband and Ortega's father. 1[40] [41] Ortega sought leave from the probate court to file for divorce on behalf of her mother, and Clyde opposed the motion. Following an evidentiary hearing, the probate court entered an order granting Ortega authority to file for divorce on behalf of her ward.

“In ten points, Clyde contends that the trial court abused its discretion in granting Ortega's motion, that allowing a guardian to sue for divorce on behalf of her ward violates Texas public policy, and that there is no evidence or insufficient evidence to support the probate court's findings of fact and conclusions of law. In addition, Ortega has filed a motion to dismiss this appeal, alleging that we do not have jurisdiction because the probate court's order was interlocutory.

“We affirm.

“. . . Clyde and Marcella Tabor have been married for more than 50 years. Marcella is in the final stages of Alzheimer's disease and cannot see, speak, or hear. On January 11, 1993, the probate court entered an order appointing Ortega as Marcella's guardian and instructing Clyde and Ortega to try to reach an equitable partition of the Tabors’s sizable community estate without the court’s involvement. Failing to reach such an agreement, Ortega filed a motion for partition. The court thereafter referred the parties to mediation. On February 19, 1993, Ortega (representing Marcella) contracted with Clyde to partition the Tabors's community estate. The parties' contract (‘original agreement’) included a provision in which Ortega agreed not to seek a divorce for her ward except in the event of abuse by Clyde.

“On April 20, 1993, the probate court entered an order (‘1993 order’) appointing Ortega as guardian of Marcella's estate and person, and partitioning the Tabors's community estate. The court adopted the parties’ original agreement to partition the property, but modified the provision regarding Ortega's right to seek a divorce on behalf of her ward as follows:

Burinda Beth Ortega, as Guardian of the Person and Estate of Marcella Tabor agrees not to seek permission from the Court to obtain a divorce for Marcella Tabor except in the event of physical abuse by Clyde Tabor to Marcella Tabor or in the event of good cause shown as determined by the presiding judge of this court.

“Neither party objected to the trial court's modification or filed a motion to correct or modify the order.

“On October 1, 1996, Ortega filed a motion for authorization from the trial court to file for divorce on behalf of her ward, alleging that good cause existed in support of the motion. At the evidentiary hearing, Ortega alleged that Clyde had been verbally abusive to Marcella and that a divorce was necessary to protect Marcella's separate property assets from Clyde's creditors. In addition, Marcella’s guardian ad litem argued that Ortega’s motion should be granted because Clyde had engaged in a ‘continuing campaign of harassment’ against both Ortega and Marcella and a divorce would be in Marcella's best interest. At the conclusion of the hearing, the probate court granted Ortega’s motion. . . .

“Upon Clyde’s request, the court filed its findings of fact and conclusions of law. The court found that, among other things, Clyde had verbally abused Marcella since the parties’ February 19 agreement and that good cause existed to authorize Ortega to proceed with a divorce action on her ward’s behalf. In its conclusions of law, the court held that it was in Marcella’s best interest to allow Ortega to proceed with a divorce action on Marcella’s behalf, good cause having been shown.

“Clyde perfected his appeal and filed a motion to stay the divorce proceeding, which this court granted. Ortega thereafter filed a motion to dismiss for want of jurisdiction, alleging that the probate court’s order was interlocutory. Because we cannot consider the merits of this appeal unless there was a final disposition of this issue in the probate court, we first address Ortega’s contention that this appeal is interlocutory.

INTERLOCUTORY APPEAL

“Under section five of the probate code, ‘[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.’[42] To appeal a probate matter, however, it is not necessary that the order or judgment finally and fully dispose of the entire probate proceeding. [43] Where the order finally disposes and is conclusive on the issue or controverted question for which that particular part of the proceeding was brought, the order is final and appealable.[44] The supreme court has adopted the following test for determining whether a probate order may be appealed:

“In this case, there is no express statute which declares that the trial court’s decision to allow a guardian to file for divorce on behalf of her ward is a final and appealable order.[46] Thus, the issue is whether the probate court's order ‘dispose[s] of all issues in the phase of the proceeding for which it was brought.’[47] Because the probate court’s order finally disposed of all the issues (whether good cause existed for Ortega to petition for divorce on behalf of her ward) and parties (Ortega, Clyde, and Marcella) that relate to the underlying proceeding (the hearing[48] on Ortega's motion for authority to file lawsuit), we hold that the order constitutes the final disposition of a matter that may be appealed.[49] We deny Ortega's motion to dismiss.”

* * * * *

A & W Industries, Inc. v. Day, 977 S.W.2d 738 (Tex.App.-Fort Worth 1998)

This case should have been easy. Crowson quoted with approval a case in which a dismissal for lack of “interest” in an estate was said to be final and appealable. That is the issue in this case. The Fort Worth court of appeals consistently struggles with probate finality and jurisdiction.

“Appellant A & W Industries brings this appeal from the trial court's order dismissing its motion to remove Appellees James M. Day and Ramona Day as independent co-executors of the estate of Tommy Joe Day, deceased. A & W asserts in a single point that the trial court erred in holding that A & W lacked standing to sue for Appellees' removal as a matter of law. Because A & W failed to both plead and prove that it was an ‘interested person’ under section 3(r) of the probate code, we affirm. See TEX. PROB.CODE § 3(r).

BACKGROUND

“Because of the disposition of this case, only a brief recitation of the facts is necessary.