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.

“Following Tommy Joe Day’s death in June 1990, A & W entered a contractual agreement with Appellees as co-executors of Day's estate to purchase the assets of Wilbert of North Texas, a burial vault manufacturing business owned by the estate. Appellees subsequently filed suit to rescind the contract and A & W counter-filed seeking specific performance.

“On August 6, 1997, A & W filed a motion to remove Appellees as independent co-executors of the estate, alleging that Appellees had engaged in gross misconduct or mismanagement in the performance of their duties and had misapplied estate property committed to their care.[50] Appellees answered the motion by asserting that A & W lacked standing to sue.

“. . . Before receiving testimony on the motion to remove, the trial court held an in limine proceeding on the issue of A & W's standing, at which time A & W asserted that it had a property right in and a claim against the estate being administered. After hearing arguments from counsel, the trial court held that A & W lacked standing to sue for removal of the co-executors. The court timely filed conclusions of law, concluding that none of the acts alleged by A & W gave it standing to sue to remove Appellees as co-executors, and that even if every act alleged was established by competent evidence, A & W would still not have standing in this case.

INTERLOCUTORY APPEAL

“Before considering A & W's point, we must decide whether the order in this case is a final disposition that may be appealed or whether it is merely interlocutory, as alleged in A & W’s notice of 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.’[51] To appeal a probate matter, however, it is not necessary that the order or judgment fully dispose of the entire probate proceeding.[52] All that is required is that the order conclusively decide the controverted question for which that particular part of the proceeding is brought. [53] The Supreme Court of Texas has adopted the following test for probate appeals:

“In this case, there is no express statute that declares an order dismissing plaintiff's motion for lack of standing to be final and appealable.[55] The ‘proceeding’ of which the order may logically be considered a part is the hearing on A & W's motion to remove.[56] Because the trial court's order that A & W lacked standing to bring the motion ‘dispose[d] of all issues in the phase of the proceeding for which it was brought,’[57] we hold that the trial court's order constitutes a final judgment that may be appealed.”[58]

* * * * *

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

Three years after Crowson, the Amarillo court of appeals seems to be unaware of it. It uses the wrong analysis. It might have reached the correct result on the jurisdictional issue, and it did on the substantive issue. The trial judge and the lawyer for the appellee do not believe in due process or adversarial proceedings in probate litigation. That is not a unique attitude. Do not be surprised if a judge who rarely presides over contested probate cases does not comprehend that there can be such litigation and that it is real litigation. Don’t be surprised if lawyers or judges think the idea of a jury trial, (or even a real trial to the court) on a contested probate matter is preposterous. The court of appeal holds that a trial court’s probate of a will and appointment of the named executor is a final appealable order.

“This appeal arises from a contest to the appointment of the executor named in the will of Margarete B. Crenshaw and the issuance of letters testamentary. After a hearing held on seven days notice, the trial court overruled the challenge and rendered an order naming the designee in the will as independent executor. Appellant James B. Crenshaw (James) now presents two points in challenge of that order. Finding error in the challenged order, we reverse.

“In 1988, Margarete B. Crenshaw (Margarete) executed a will in which her three sons, William H. Crenshaw, Jr. (William), Charles Andrew Crenshaw (Charles), and James were named as beneficiaries. The will also appointed William as independent executor. Margarete died in October 1995. On August 13, 1997, William filed an application to probate Margarete's will and for issuance of letters testamentary. In that application, William described himself as "the" surviving son of Margarete. In fact, William's brother James also survived their mother 1[59] and made that fact known to the court by filing an answer objecting to the appointment of William as executor and requesting a jury trial.

“In response to the creation of a contested issue, the County Court transferred the case to Lubbock County County Court at Law No. 1. On September 2, 1997, that court set a hearing for September 9, 1997. At that hearing, James moved for a continuance on the ground that Rule 245 of the Rules of Civil Procedure entitled him to notice of not less than 45 days before the first trial setting. The trial court denied this motion and, by an order signed October 1, 1997, the court denied James’s objections and appointed William as independent executor. It also ordered the issuance of letters of temporary administration to William. Because William's request had not been for letters of temporary administration, the trial court rendered an order nunc pro tunc changing the last paragraph to order the issuance of letters testamentary to William. . . .

“Initially, even though the question has not been raised by the parties, it is our duty to determine, sua sponte, our jurisdiction to hear an appeal.[60] Unless an exception applies, a final judgment disposing of all of the issues before the trial court is a prerequisite to an appeal.[61] Here, the challenged order only resolves one issue, the appointment of the executor of Margarete's estate, and is not a final judgment.

“Even so, our jurisdiction to hear this appeal is resolved by reference to Section 5(f) of the Probate Code. That section provides that ‘[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the court of appeals.’ This only requires that the challenged order finally adjudicates a substantial right.[62] Appointment of an executor over objection has been held to satisfy that standard.[63] Thus, we do have jurisdiction to consider the appeal.”

“James . . . assigns error to the trial court's denial of his motion for continuance. . . . [T]his motion was premised on the dictates of Rule of Civil Procedure 245 2[64] that parties to contested cases have notice of not less than 45 days before the first trial setting. The amount of notice required for subsequent settings need only be ‘reasonable.’[65] At the hearing, William argued the notice was sufficient that the application had previously been set in the county court. The record does not support that assertion. Indeed, the September 9, 1997 setting was less than 45 days after William's original application. Without James's request or agreement, no previous setting could have met the notice requirement of Rule 245.

“William next argues that ‘a testator's power to select an independent executor is absolute.’ William makes this statement even though he acknowledges the existence of Probate Code Section 78 defining classes of persons disqualified from serving as executors or administrators. Logically, if Section 78 precludes specific classes from serving, then the testator's power to name the executor of her will is not absolute. William also contends that James failed to allege an objection that raises an issue of William's qualification under Section 78 and that the court's function in appointment of an executor is ‘essentially ministerial.’ We disagree.

“James's answer asserts the existence of a claim of Margarete's estate against William. This type of asserted conflict of interest is analogous to the numerous cases in which courts have found executors unsuitable.[66] It is clear from the authority discussed in Olguin that James raised a genuine question as to William's qualification under the Probate Code and the court's function in appointment of an executor is not ‘essentially ministerial.’

“William also argues that the appointment of an executor ‘is not a matter for a full adversarial trial,’ that ‘the value of a trial ... in a hearing such as this, is negligible,’ and that James has cited no authority that he has a right to a trial. William's argument fails to give effect to the plain language of Section 10 of the Probate Code. That section provides:

Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, to be heard upon such opposition, as in other suits.

“As the decedent's son and a named beneficiary of her will, James is clearly a person interested in Margarete's estate. At the time he filed his written answer objecting to the appointment of William as executor, no executor had been appointed. Therefore, James met the requirements under the statute to have his opposition heard ‘as in other suits.’ The phrase ‘as in other suits’ is without qualification. Because probate proceedings are civil in nature, we may safely interpret this language to mean as in other civil suits. Rule 2 delineates the scope of their application to include all actions of a civil nature in justice, county and district courts of Texas, subject to limited exceptions not applicable here. Finding the Rules of Civil Procedure applicable to this contested proceeding, we agree with James that the requirements of Rule 245 must be met.[67] The record affirmatively shows that James did not have the required 45-day notice to which he was entitled. Thus, we sustain his first point of error.

“Our disposition of James's first point requires reversal of the trial court's order.. . . ”

Five recent cases that were decided after 1998 provide an interesting mix. In Murphy and Navar, the Forth Worth and El Paso courts of appeals decide that it is too soon to appeal because an order is interlocutory rather than final. To provide balance, in Woollett, Columbia and Logan the Austin and Corpus Christi courts of appeals hold that arguably interlocutory orders were final, and having not been appealed could, no longer be challenged.[68]

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

Is an order transferring the case to another court appealable? Is the “substantial right” test viable after Crowson?

There is an interesting dissent. What do you think of the merits of the two opinions?

Majority Opinion by Justice Richards, joined by Justice Day

“Dottie Murphy and Frances Marie Murphy have appealed the trial court's order transferring the business of the ward's guardianship from Wichita County to Harris County under section 612 of the probate code.[69] . . . . [W]e conclude that the transfer order is not final and appealable. . . . . [W]e dismiss the appeal for want of jurisdiction.

“A final order of a court that exercises original probate jurisdiction is appealable to this court.[70] To be final and appealable, the order need not fully dispose of the entire proceeding.[71] Instead, the reviewing court applies the following test to determine whether the order is final and appealable:

‘If there is an express statute . . . 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.’[72]

“The probate code does not provide that a section 612 transfer order is final and appealable; thus, the order is not final unless it disposes of all parties and issues at a particular phase in the ward's guardianship proceeding. In this case, the transfer order is not final and appealable because it did not dispose of any parties or issues in any particular phase of the guardianship. The order just changed the venue in which those issues and parties will be decided.[73]

“Appellants cite several cases in which venue rulings concerning guardianships were appealed before the entire guardianship proceeding was disposed of.[74] But all of these cases predate Crowson, and, with one exception, they also predate the enactment of legislation prohibiting an interlocutory appeal from a venue determination.[75] In addition, none of the cases discuss the appellate jurisdiction issue.[76]

“At oral argument, appellants contended the Crowson test is comprised of two components: (1) does the order being appealed completely finish a distinct, separate phase of the guardianship proceeding; and (2) if so, did the order involve a substantial right? If both of these elements are present, appellants contend the order at issue is final and appealable.

“Appellants also devote a significant portion of their argument to their contention that the transfer order is final and appealable because it affects a substantial right. We do not reach this issue, however, because, as we have discussed, the transfer order did not dispose of any phase in the ward's guardianship proceeding. There is case law to the effect that whether a probate order adjudicates a substantial right factors into the finality determination.[77] Most[78] of these cases predate Crowson, however, and they do not discuss the Crowson test. Crowson itself discusses the "substantial right" language but does not include it in the test for determining finality.[79] Consequently, we question whether the "adjudication of a substantial right" inquiry is still viable post-Crowson. Moreover, at least one Texas court has held an order granting or denying a motion to transfer under section 608 of the probate code does not affect the substantial rights of any party and therefore is not final.[80]

“Appellants also argue that, if the transfer order itself is not final, they will not be able to appeal it until the guardianship is terminated, which may not be until the ward dies. By making this argument, appellants say too much. If the guardianship proceeding itself is a single phase, the transfer order is interlocutory and not appealable. Conversely, if a motion to transfer could be a phase in a guardianship proceeding (which it is not, in this case), then a guardianship has multiple phases. Appellants can appeal the transfer order after entry of any order disposing of all issues and parties in any one of those phases.[81] The fact that the order would be appealed to a Houston appellate court rather than this court should not factor into the jurisdiction determination.

“Because the transfer order at issue did not dispose of any parties or issues in any particular phase of the ward's guardianship proceeding, it is not final and appealable, and we lack jurisdiction to review it. Accordingly, we dismiss the appeal for want of jurisdiction.” In re Murphy[82]

Dissenting Opinion by Justice Brigham

“I would hold that the trial court's order transferring the business of the ward's guardianship from Wichita County to Harris County under section 612 is final for purposes of appeal; therefore, I respectfully dissent.

“The case law regarding the appealability of probate orders is somewhat unsettled.[83] Because the legislature cannot conceivably identify in advance what types of orders should be immediately appealable or predict when in a particular case an earlier rather than later review of an interlocutory order is compelling,[84] the question of whether an order is final for purposes of appeal is frequently left to the courts.[85] In making such a determination in the context of probate law, we have some guidance.

To authorize an appeal of a probate matter, it is not necessary that the order to be appealed be one that fully and finally disposes of the entire probate proceeding; 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.[86] Absent an express statute declaring the phase of the probate proceeding to be final and appealable, the supreme court has determined that "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."[87]

“The Corpus Christi court determined that a ‘substantial right’ makes the probate order appealable.[88] The ‘substantial right’ language is merely one of the factors for determining whether a probate order is appealable, but equally important is the supreme court's language that the order must dispose of all issues in the phase of the proceeding for which it was brought.[89]

“Although the majority acknowledges that an order need not fully dispose of the entire proceeding to be final and appealable, instead of applying the Crowson test, it appears to apply the general rule that appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case.[90] But the term "final judgment" applies differently in different contexts. 1[91][92]

“In Crowson, the "proceeding" was the heirship determination.1[93] The "order in question" was a summary judgment order, determining that the claimant Crowson was not an heir.[94] In holding that the summary judgment against Crowson was interlocutory, and thus, not appealable absent a severance, the supreme court recognized that the summary judgment was logically a part of the heirship determination, but it did not dispose of the heirship claims of all the interveners.[95] Therefore, the summary judgment did not dispose of that whole "particular phase" of the probate proceeding.[96] Also, the court in Crowson took into consideration the express probate code provision that a judgment in a proceeding to declare heirship is final and appealable.[97] [98] In other words, the court recognized that a determination that Crowson was not an heir could not be a final order where the issue of who the heirs were had not yet been addressed and the pertinent statute provided that a judgment identifying the heirs was final and reviewable.[99]

“Here, the "proceeding" is the guardianship, and the "order in question" is the order transferring the business of the guardianship to Harris County. A guardianship is not an ordinary lawsuit, but is an ongoing proceeding in which various orders are made from time to time. Although there is no express statute providing that a judgment in an ongoing guardianship is final and appealable, as in a suit to determine heirship, it is also worthy to note that there is no express provision that an order transferring the business of a guardianship is not subject to interlocutory appeal. 2[100]

“Because the order transferring the business of the guardianship fully disposed of a "particular phase" of the guardianship, was conclusive of the question for which that part of the proceeding was brought, and left no issues outstanding with regard to the forum of the core guardianship, it is a final order for purposes of appeal.

“If the transfer of the core guardianship proceeding is not appealable now, when would it be appealable? The majority opinion, I believe, disregards the supreme court's policy to avoid constructions that defeat bona fide attempts to appeal.[101] It is for these reasons that I dissent. In re Murphy[102]

* * * * *

Murphy v. Murphy 21 S.W.3d 797 (Tex.App.-Houston [1st Dist.] 2000) (per curiam)[103]

This is an opinion published a few months after the Ft. Worth Murphy opinion. This may be one of the appeals that is referred to by the Ft. Worth court. This case is on a different issue, and is a fragment of the ongoing litigation, but we include it because it is short and interesting. It is an appeal from the Harris County Probate Court No. 1.

“Appellants and appellee have filed a joint motion for disposition of appeal pursuant to Texas Rule of Appellate Procedure 42.1(a). The joint motion also advises the Court that appellant Frances Marie Murphy died on November 24, 1999. Her death occurred after the trial court signed the orders appealed from and after the filing of her notice of appeal, but before the disposition of the appeal. The parties maintain that Mrs. Murphy's death does not affect the appeal, and the motion is signed on Mrs. Murphy's behalf by the attorneys who have represented her all along in this appeal. This Court has not been notified if there is an executor or administrator representing the estate of Mrs. Murphy.

“Rule 7.1(a)(1) of the Texas Rules of Appellate Procedure provides:

If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court's judgment will have the same force and effect as if rendered when all parties were living. The decedent's party's name may be used on all papers.

“We have compared current rule 7 to former appellate rules 9 and 369a. We find no substantive change in the language of the rule; therefore, we conclude that the case law under rules 9 and 369a is also applicable to current rule 7.

“The purpose of rule 369a was to simplify and expedite the disposition of cases on appeal, not to affect the substantive rights of the litigants. Neither rule 7, nor its predecessors, permit an appellate court to proceed with an appeal without questioning whether those purporting to represent the deceased party have the authority to do so.

“For example, it is well established that an attorney-client relationship terminates upon the death of the client. It is equally well-established that a party's death may moot certain of the issues between the parties, unless property rights are affected.

“Accordingly, this Court seeks assurance that the representative of the estate of Mrs. Murphy has approved the joint motion and is represented by the attorneys for Mrs. Murphy. Within 15 days of the date of this order, we request the attorneys for Mrs. Murphy to provide this Court with documentation showing the authority of the representative of Mrs. Murphy's estate, his or her designation of them to act as attorneys on behalf of the estate in this matter, and his or her adoption and ratification of the joint motion.”

* * * * *

Estate of Navar v. Fitzgerald, 14 S.W.3d 378 (TexApp-El Paso 2000, no pet.)

Is an order to post a $652,905 bond or face removal appealable? When reading opinions of other courts, consider whether this case is consistent with those opinions.

“Based upon an application to show cause filed by movant James Fitzgerald, the El Paso County Probate Court ordered Jose L. Navar, independent administrator of the estate of Virginia B. Navar, to post bond in the amount of $652,905 or face removal as administrator. . . .

“The Texas Probate Code provides:

“All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.”[104]

“Thus, if the order setting bond is a "final" order, then it is appealable and this court has jurisdiction. If not, the appeal must be dismissed.

“To be final and appealable, a probate order need not fully dispose of the entire proceeding. 2[105] Because probate administration is a continuing process, its nature contemplates that future decisions must be based on intermediate decisions. Interlocutory appeal is necessary to provide practical review of erroneous, controlling intermediate decisions before their consequences become irreparable.3[106] The Texas Supreme Court in Crowson v. Wakeham expressed the test for appealability as:

“If there is an express statute . . . 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.4[107]

“Despite this apparently simple test expressed by the Supreme Court, the law regarding appealability of probate orders is less than well-settled.5[108] Crowson did not expressly overrule prior case law on appealability; indeed it quoted with approval[109] a frequently-cited court of appeals case allowing interlocutory appeals of probate orders adjudicating a "substantial right."6[110] The courts of appeals are split as to whether the "substantial right" test remains a valid inquiry after Crowson.7[111]

“Determining the appealability of the probate order here, however, does not require us to choose sides in this debate, as the order setting the executor's bond is not final and appealable under any formulation of the test.[112] We find that the order is part of that portion of the estate's administration dealing with satisfying creditor's claims, there is nothing in this record to indicate such claims have been fully disposed of,[113] nor has the challenged order been severed from the larger administration. Moreover, the order does not even remove Jose Navar as executor of the estate, but only provides that he may be removed if bond is not posted as required. And no substantial right has been adjudicated, as Navar could continue to act as executor until such time as he was removed by further order of the court.8[114] No order removing Navar as executor is contained in this record, and his notice of appeal specifically addresses the ‘'Order Setting Bond' entered by the Probate Court on August 2, 1999 . . . .’ The order cannot even be said to have finally adjudicated the amount of the bond, as the probate court may revisit that issue at any time during the administration of the estate.9[115] We conclude the order appealed from in this case is interlocutory and is not a final order under the Probate Code. . . .

“We lack jurisdiction to hear this appeal, and therefore grant appellee's motion and dismiss the appeal.”

* * * * *

Woollett v. Matyastik 23 S.W.3d 48 (TexApp Austin 2000) (TexApp-Austin 2000)

Compare Navar with Woollett v. Matyastik[116] which was decided by the Austin Court of Appeals on February 17, 2000, the same day as Navar. Woollett involved a transfer order.

“Bill filed an Application for Appointment of Guardian of the Estate and Person of Rose Matyastik July 7, 1998 in the Milam County Court. On July 20, both appellants filed separate contests to Bill's application. The county court signed an order transferring ‘this guardianship’[117] to the district court ‘in accordance with Texas Probate Code 606.’ On September 1, Bill filed an application to be appointed the temporary guardian of the person and estate of Ms. Matyastik, and also sought a temporary restraining order against appellants. 1[118] On the same day, the district court signed a temporary restraining order against appellants, appointed an attorney ad litem for Ms. Matyastik, and appointed Bill the temporary guardian of the person and estate of Ms. Matyastik pending the hearing on the contest of Bill's application to be appointed temporary guardian. Following a hearing on Bill's application, the district court signed an order on September 28 that appointed Bill the temporary guardian, imposed a temporary injunction against appellants, and set a hearing for determining the permanent guardian. Among other matters, the order empowered Bill to expend up to $50,000 of the Ward's estate for the care and maintenance of the Ward, including payment of expenses associated with this guardianship proceeding, without further Court approval. In the event that the Temporary Guardian shall be required to expend more of the Ward's estate than the foregoing $50,000 he shall file a request for such expenditures with this Court and the same shall be considered approved and authorized unless the other parties hereto shall within 10 days file a contest and request for hearing.

“The September 28 order became final.

“On March 16, 1999, Bill filed an Application for Payment of Expenses seeking $13,543.12 in attorney's fees for ‘expenses arising from the administration and management’ of the estate. The district court signed the order authorizing the expense payment on the same day. In this appeal, appellants, also children of Ms. Matyastik, challenge the district court's jurisdiction to render the March 16 order, and the approval of the application for payment when Bill presented no supporting evidence.” [119]

In a footnote at this point, the Woollett court states:

“[A]ppellants complain of the appointment of Bill as the temporary guardian. The September 28, 1998 order appointing Bill temporary guardian is a final, unappealed order. We cannot address the validity of that order.”

* * * * *

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

Columbia involves both appellate jurisdiction and trial court jurisdiction. Appellate jurisdiction is reviewed here. The Columbia facts are discussed in more detail in the trial court jurisdiction course. If one claim is resolved, is that a final order if all claims have not been resolved or if the administration is ongoing?

“The final order barring Columbia's claim was appealable to this Court.5[120] [121] Because no direct appeal of the September 24, 1997, probate order was taken by Columbia, it cannot now attack the order collaterally.”[122] Columbia Rio Grande Regional Hospital v. Stover[123]

* * * * *

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

Attorney fees are disputed in a guardianship. Is an order on a Rule 12 motion in a guardianship a final order? Is it appealable? Is it collateral estoppel in a subsequent estate proceeding after the ward’s death. Is the “substantial right” test viable?

“Samuel Downing McDaniel sued Jill M. Johnson Logan, individually and as independent executrix of the estate of Jim Pearce Johnson, in Travis County to recover attorney's fees for representing Johnson in guardianship proceedings in Hays County that preceded Johnson's death. Relying on an order issued during the guardianship proceedings that held Johnson had the capacity to hire his own attorney, the Travis County Probate Court granted partial summary judgment in favor of McDaniel. That portion of the probate proceeding was severed, and Logan, Johnson's daughter and independent executrix of his estate, brings this appeal. She urges that McDaniel had no authority to represent her father and that the order issued by the Hays County court during the guardianship proceedings was interlocutory in nature and therefore could not have collateral estoppel or res judicata effect. We will affirm.

“In August 1996, Johnson suffered what his doctors characterized as a massive stroke. Believing the stroke rendered her father unable to competently manage his own affairs, Logan initiated guardianship proceedings in October 1996 in the probate court[124] of Hays County seeking to have her father declared incapacitated and to have herself appointed guardian. On October 17, 1996, an attorney ad litem was appointed to represent Johnson. Johnson rejected the representation of court-appointed counsel, however, and on October 31, 1996 he signed a legal services contract hiring McDaniel, a personal friend, to represent him. McDaniel filed pleadings on behalf of Johnson contesting Logan's request to be appointed guardian.

“In response, pursuant to Rule 12 of the Texas Rules of Civil Procedure, Logan filed a motion for McDaniel to show his authority to represent Johnson (the Rule 12 motion).[125] At a hearing on the Rule 12 motion, McDaniel called Johnson to the stand to explain why he had hired his own attorney. In its order on the motion, the court ruled "that at the time Mr. Johnson hired Mr. McDaniel to represent him, Mr. Johnson had sufficient capacity to do so and therefore that Mr. McDaniel has shown authority at that time to represent him." That order was never severed or appealed.

“The Hays County court later appointed Johnson's son as temporary guardian of the estate and ward. The guardianship proceeding was never closed because Johnson died on January 6, 1998, before a final order had been rendered on the guardianship application. Johnson's will was filed in the Travis County Probate Court.[126] McDaniel made a claim against the estate for $76,542 in attorney's fees earned in representing Johnson during the contested guardianship proceeding. The estate denied the claim, whereupon McDaniel filed suit in the Travis County Probate Court seeking judgment to enforce his claim for attorney's fees. He filed a motion for partial summary judgment seeking a determination that (1) at the time Johnson entered the legal services agreement he had legal capacity to contract, and (2) the contract authorized McDaniel to represent Johnson. The trial court granted partial summary judgment in favor of McDaniel, and the claim was severed from the rest of the probate proceedings to allow Logan to bring this appeal.

“. . . McDaniel invoked the doctrines of res judicata and collateral estoppel, asserting that the matters resolved by the Hays County Probate Court's order on the Rule 12 motion should not be relitigated in the present cause. In response to McDaniel's motion for summary judgment, Logan submitted doctors' letters and other evidence disputing McDaniel's assertion that Johnson was competent to retain his own attorney when he signed the contract for legal services with McDaniel. That evidence is sufficient to raise a fact issue on the matter, precluding summary judgment, unless the Hays County order on the Rule 12 motion prevents redetermination of the matter of Johnson's capacity to retain his own counsel. . . .

“McDaniel sought summary judgment on both collateral estoppel and res judicata grounds. Though the parties refer to these doctrines interchangeably, they are, in fact, distinct doctrines with different applications. Res judicata, also known as claim preclusion, prevents relitigation of a claim or cause of action that has been finally adjudicated in a prior suit, as well as related matters that, with the use of diligence, could have been litigated in that suit.[127] Collateral estoppel, or issue preclusion, prevents relitigation of particular issues already resolved in a prior suit.1[128] It is the latter doctrine that applies in this case. More precisely, McDaniel attempts an offensive use of collateral estoppel, in which a plaintiff seeks to stop a defendant from relitigating an issue that the defendant has previously litigated and lost.[129] [130]

“To establish the elements of collateral estoppel, a party must show that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the prior action; and (3) the parties were cast as adversaries in the prior action.[131] The first and third elements are easily met here. McDaniel's motion sought judgment that (1) at the time Johnson entered the legal services agreement, he had legal capacity to contract; and (2) the contract authorized McDaniel to represent Johnson. Both matters were decided in McDaniel's favor in the order on the Rule 12 motion.2[132]

“The parties to this action were also both cast as adversaries in the prior proceedings. The opposing parties in the guardianship proceeding were Johnson and Logan. Logan makes much of the fact that McDaniel, acting as Johnson's attorney, was not a party to the prior proceeding. However, it is only necessary that the party against whom the plea of collateral estoppel is being asserted be a party or in privity with a party in the prior litigation.[133] In the guardianship proceeding the Rule 12 motion was filed by Logan, and it is Logan against whom the doctrine of collateral estoppel is asserted now. McDaniel has satisfied this element of collateral estoppel.

“This case turns, then, on the second element of collateral estoppel: whether the facts sought to be litigated in the present action were essential to the judgment in the first action. Logan argues that because the order on the Rule 12 motion was merely interlocutory and the guardianship proceeding never resulted in a final judgment in that action, the doctrine of collateral estoppel cannot apply. Outside the context of probate proceedings, orders on Rule 12 motions have been held interlocutory and thus not appealable.[134] McDaniel counters that orders that would be considered interlocutory in other proceedings are often deemed final and appealable in the context of a probate proceeding.

“Guardianship proceedings are governed by the Probate Code and are generally conducted in county probate courts.[135] All final orders of any court exercising original probate jurisdiction are immediately appealable to the courts of appeals.[136] To be deemed final and appealable, an order rendered in a probate proceeding need not finally dispose of the entire proceeding.[137] A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based. The need to review controlling, intermediate decisions before an error can harm later phases of the proceeding has been held to justify modifying the "one final judgment" rule.[138]

“It has been held that an appealable order in a probate proceeding must adjudicate conclusively a controverted question or substantial right.[139] The continued viability of the "substantial right" test is apparently in some doubt.[140] Be that as it may, barring a statute making an order in a particular phase of a probate proceeding final, the supreme court has cautioned that if pleadings in that phase raise other issues or parties that are not disposed of, the order is interlocutory.[141] Regarding the appealability of a probate order, the supreme court has stated:

‘If there is an express statute . . . declaring the phase of the probate proceeding 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.[142]

“There is no express statute providing that an order on a Rule 12 motion is final and appealable in a probate proceeding. The question, then, is whether the Rule 12 order here disposed of each issue raised in the pleadings for that proceeding, or whether the order conclusively disposed of that phase of the proceeding.

“The Rule 12 motion filed by Logan asked the Hays County Probate Court to require McDaniel to show authority to represent Johnson in the guardianship proceedings she had initiated. In evidence at the hearing was the power of attorney her father had previously executed in Logan's favor, a later document he signed revoking the power of attorney, the legal services contract, and correspondence and affidavits from doctors who believed Johnson was not competent to hire his own attorney. Johnson testified on his own behalf as to why he had retained McDaniel to represent him. The court's order addressed only the narrow issue raised in the Rule 12 motion, ruling that Johnson had sufficient capacity to hire McDaniel when he did so and therefore that McDaniel had authority to represent Johnson in the ongoing guardianship proceedings. Because no issues raised in the pleadings pertaining to the Rule 12 motion remained unresolved, we hold that the order concluded a discrete phase of the guardianship proceedings in the probate court.

“We note that such a holding has been anticipated and approved in a similar case. In Coleson v. Bethan,[143] the court of appeals held that an order continuing appointment of an attorney ad litem in a guardianship proceeding was a final and appealable order. The Fort Worth court also noted that the same result could arise in a Rule 12 motion if someone questioned the "capacity" of a client to hire an attorney to defend against a guardianship proceeding.[144] That is precisely what happened in this case.

“Because the Hays County order concluded a discrete phase of the guardianship proceeding, that order was final and appealable, not interlocutory. The resolution of the issues in that earlier order was the basis of the motion for partial summary judgment filed by McDaniel against Johnson's estate in Travis County. Therefore, McDaniel has satisfied the second prong of the doctrine of collateral estoppel.

“We are satisfied that McDaniel has shown that (1) the issues sought to be litigated in McDaniel's motion for partial summary judgment were fully and fairly litigated in the hearing and order on the Rule 12 motion in the prior guardianship proceeding; (2) the order concluded a discrete phase of that guardianship proceeding and so amounted to an appealable judgment in the first action, and the issues sought to be litigated in the prior action were essential to that judgment; and (3) the parties were cast as adversaries in the earlier action. We therefore hold that the doctrine of collateral estoppel prevents Logan from relitigating the issue of her father's capacity to retain his own counsel in the guardianship proceeding. We affirm the Travis County Probate Court's grant of summary judgment in favor of McDaniel.” Logan v. McDaniel[145]

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

We can flag this as an amusing park case involving trial court and appellate court probate jurisdiction issues in the context of a mandamous arising out of denial of a transfer to a statutory probate court, all arising from a death at an amusement park. Personal injury lawyers will find this case of interest. The trial court jurisdiction issue is reserved for another course.

On March 21, 1999, Valeria Cartwright drowned at a Six Flags water ride in Arlington, Texas. Her father, real party in interest Jerry Cartwright, filed a petition for appointment as administrator of her estate in a probate court in Arkansas on March 26, 1999; the petition was granted that day.

On April 13, 1999, Jerry Cartwright, as administrator, brought suit against relator for negligence resulting in Valeria's death. This suit was filed in the 236th District Court in Tarrant County, Texas. Monica Davis, Dewayne Cartwright, and Michael Vaughn filed another suit in the 48th District Court of Tarrant County, Texas against relator for personal injuries they suffered from the incident. The two cases were later consolidated into the 236th District Court case in December 2000.

In July 2001, relator moved for partial summary judgment against Cartwright on the ground that he lacked capacity to sue on his daughter's behalf because he had not taken out an ancillary administration of her estate in Texas. As a result, on August 6, 2001, Cartwright was appointed as ancillary administrator of Valeria's estate in Texas in order to pursue the wrongful death suit. Tarrant County Probate Court No. 1 appointed him ancillary administrator of Valeria's estate on that day.

On August 9, 2001, relator filed a motion to transfer the district court suit to the probate court pursuant to sections 5, 5A, and 5B of the Texas Probate Code. See Tex. Prob. Code §§ 5, 5A, 5B. Relator argued that the probate court had exclusive jurisdiction over the wrongful death and survival lawsuit filed in the district court and that it had the power to transfer the district court case to the probate court. The probate court denied the motion to transfer noting it had the jurisdiction to transfer but that the transfer was not mandatory.

. . .

To determine whether mandamus relief is available, we first must determine whether relator has an adequate remedy by appeal. In probate proceedings, a party does not always have to wait until a decision, order, or decree fully and finally disposes of the entire probate proceeding in order to appeal the decision.[146] However, the order being appealed must finally dispose of the issue or controverted question for which that particular phase of the proceeding was brought.[147] Thus, a probate order is appealable if it finally adjudicates a "substantial right" or if a statute expressly declares that phase of the proceeding to be final and appealable.[148]

Although the probate court's ruling on the motion to transfer was a final adjudication of whether the probate court should transfer the district court case to its court, the order did not resolve any party's claim.[149] Further, we have found no statute expressly stating that a denial of a motion to transfer under section 5B is appealable. Likewise, we have previously held that an order transferring a guardianship to another county is interlocutory and not appealable.[150] Thus, we conclude relator would not have had an adequate remedy by appeal from this ruling, making mandamus review the only effective means of addressing the probate court's order before the district court's wrongful death and survival suit continued. We therefore agree with relator's first contention that a trial court's denial of a motion to transfer under section 5B is subject to review by mandamus.

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

Don Juan may have lived an interesting life. His estate has an interesting life of its own. This is another trial and appellate probare jurisdiction case, with a different twist. Does the court of appeals have jurisdiction to decide that the trial court does not have jurisdiction and erred when it denied a motion to dismiss? May denial of the motion to dismiss be denied? The trial court jurisdiction issue is reserved for another course.

The County Court at Law of Webb County, Texas, sitting as a probate court, admitted the will of Juan Roberto Brittingham-McLean (Don Juan) to ancillary probate and issued ancillary letters testamentary to the appellee, Ana Maria de la Fuente de Brittingham, wife of the deceased. Ms. Brittingham filed suit against a number of Don Juan's heirs, including appellant, for wrongfully appropriating over $60,000,000.00 in assets from Don Juan's estate. Appellant, Maria Christina Brittingham-Sada de Ayala, moved to dismiss the probate action, claiming the Webb County probate court has no subject matter jurisdiction over Ms. Brittingham's claims, or in the alternative, that Ms. Brittingham should be removed as executrix of the estate. Ms. Ayala appeals the probate court's denial of both motions.

Ms. Brittingham contends we have no jurisdiction over Ms. Ayala's appeal because the probate court's order is not final for purposes of appeal. We hold we have jurisdiction over the appeal. However, because the Webb County probate court had no jurisdiction to admit the will to ancillary probate, we reverse the probate court's orders and render judgment that the case is dismissed without prejudice for lack of jurisdiction.

Background and Procedural History

Don Juan, a resident of Mexico, died in Mexico on January 14, 1998. The two executors named in the will, Harold Turk and Raul Hernandez Garcia, offered Don Juan's will for probate in Mexico on January 28, 1998. The executors then withdrew funds deposited in a Laredo, Texas bank account and distributed them to Don Juan's heirs as per Don Juan's instructions. This distribution was not done as part of the estate administration but on the authority of Hernandez as a signatory on the bank account. Don Juan had also funded two foreign companies, Sandfern (an Irish company) and Jubrico (a British Virgin Islands company), but he owned no record interest in those companies at the time of his death. Instead, Turk and Hernandez, as sole shareholders of Sandfern and Jubrico, distributed the assets of those companies outside the probate estate in accordance with Don Juan's instructions. Hernandez testified that by the end of March 1998, neither the estate nor the two foreign companies held any assets in Texas.

In March 1998, both Turk and Hernandez resigned as executors. Because no successor executor was named in the will, the Mexican probate court appointed Jose Flores-Zaher Diab as successor executor. After Turk and Hernandez made their distributions and resigned as executors of the will, two of Don Juan's heirs filed multi-million dollar claims against the estate based on loans allegedly made to Don Juan. The record reflects that if the debts are paid, the estate will lack sufficient funds to fulfill the bequests in the will.

In February 1999, Ms. Brittingham sued Don Juan's estate in Mexico, seeking to set aside her marital agreement with Don Juan and asserting a community property claim to assets of Don Juan's estate. The Mexican court denied her claim, and an appeal is pending. The Mexican probate is also still pending. According to witnesses, no inventory has been completed in Mexico, no debts have been paid, and no distribution has been made.

In August 2000, Ms. Brittingham filed an application for ancillary probate of Don Juan's will in Webb County, Texas.(FN1)[151] The probate court admitted the will to probate and issued ancillary letters testamentary naming Ms. Brittingham as executrix and requiring her to file a bond.(FN2)[152]Thereafter, Ms. Brittingham filed suit against Ms. Ayala and other beneficiaries of the will, claiming, among other things, they illegally withdrew some $60-70,000,000.00 from the assets of the estate. John R. Brittingham Aguirre intervened, claiming the estate owes him approximately $11,000,000 based on a 1994 loan he made to Don Juan. Ms. Ayala filed a motion to dismiss the entire ancillary probate proceeding for lack of subject matter jurisdiction and, in the alternative, to remove Ms. Brittingham as executrix of the estate. The trial court denied both motions and confirmed Ms. Brittingham as executrix of the estate.

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Thank You

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[1] Probate and guardianship cases are generally subject to the same or similar procedural rules and concepts. The word probate may be used by the author in this course to as a short way to refer to probate or guardianship proceedings.

[2] §5(f)

[3] See TEX.PROB.CODE art. 5(f); Estate of Wright, 676 S.W.2d 161, 163 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

[4] 1 The general Probate Code provision for appeal is now codified in section 5(f), which provides:

(f) All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.

[5] Editor’s note. The key portions were included prior to this opinion.

[6] “Kelly v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945) (interpreting the predecessor to TEX.PROBATE CODE § 5(f)).

[7] Fisher v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213-14 (1960).

[8] See Stevens v. Douglass, 505 S.W.2d 532 (Tex.1974) (order denying application of second testatrix and reinstating first testatrix); see also Halbert v. Alford, 82 Tex. 297, 17 S.W. 595 (1891) (order rejecting the report or account of an estate administrator and directing him to file another report on a stated basis appealable); Lehman v. Gajewsky, 75 Tex. 566, 12 S.W. 1122 (1890) (order setting aside the discharge of a guardian is similar to grant of motion for new trial and not appealable).

[9] 676 S.W.2d 161 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.)

[10] Wright 676 S.W.2d at 163.

[11] Id. at 163-64.

[12] Id. at 164.

[13] 3 White v. Pope, 664 S.W.2d 105, 107 (Tex.App.--Corpus Christi 1983, no writ) (order on application for sale of personal property to pay attorney's fees for two former attorneys for estate); Taliaferro v. Texas Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.--Fort Worth 1983, no writ) (granting of an interpleader); Parr v. White, 543 S.W.2d 445, 449 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.) (declaration that upon death the exclusive jurisdiction over decedent's community property vests in probate court).

[14] Huston v. FDIC, 800 S.W.2d 845, 848 (Tex.1990).

[15] See Mackie v. McKenzie, 890 S.W.2d 807 (Tex.1994); McRoberts v. Ryals, 863 S.W.2d 450, 454-55 (Tex.1993).

[16] TEX.PROB.CODE § 5(f)

[17] Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995)

[18] Compare TEX.PROB.CODE § 55(a) (specifically stating that a judgment in a proceeding to declare heirship ‘shall be a final judgment, and may be appealed or reviewed....’).

[19] 718 S.W.2d 38, 39 (Tex.App.--Dallas 1986, no writ)

[20] 897 S.W.2d at 783.

[21] id.

[22] Id.

[23] 885 S.W.2d 175, 177 (Tex.App.--Corpus Christi 1994, no writ)

[24] Youngs v. Choice, 868 S.W.2d 850, 852 (Tex.App.--Houston [14th Dist.] 1993, writ denied).

[25] TEX. PROBATE CODE § 5(f); Youngs, 868 S.W.2d at 852; Taliaferro v. Texas Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.--Fort Worth 1983, no writ) (op. on reh'g).

[26] Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex.App.--Corpus Christi 1993, no writ).

[27] Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex.App.--Fort Worth 1987, no writ); see also Youngs, 868 S.W.2d at 852.

[28] Youngs v. Choice, 868 S.W.2d 850, 852 (Tex.App.--Houston [14th Dist.] 1993, writ denied); Christensen v. Harkins, 740 S.W.2d 69, 71-72 (Tex.App.--Fort Worth 1987, no writ); Taliaferro v. Texas Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.--Fort Worth 1983, no writ); Spies v. Milner, 928 S.W.2d 317 (Tex.App.--Fort Worth 1996, n.w.h.); cf. Forlano v. Joyner, 906 S.W.2d 118, 119-20 (Tex.App.--Houston [1st Dist.] 1995, no writ).

[29] 1

[30] Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995).

[31] Compare to the Crowson facts. Can you distinguish them?

[32] Compare to Navar. Can you distinguish the facts?

[33] 928 S.W.2d 317, 318-19 (Tex.App.--Fort Worth 1996, no writ)

[34] Spies, 928 S.W.2d at 319.

[35] 855 S.W.2d 208, 210 (Tex.App.--Corpus Christi 1993, no writ)

[36] 897 S.W.2d at 783

[37] Id.

[38] The courts of appeals are not sure about this. Several opinions refer to this issue. The courts eventually seem to accept the notion that the just don’t know what to think of it.

[39] Note that the courts of appeals are guessing what Crowson meant, despite Crowson’s statement that the Supreme Court recognized the need for precision.

[40] 1 Since entry of the order that is the basis of this appeal, Durinda Dawn Stubbs, Clyde's granddaughter, has been appointed guardian of Clyde's person and estate.

[41] Apparently the divorce will be the guardian v. the guardian, in keeping with the vow, “until death or guardianship do we part.”

[42] TEX. PROB.CODE § 5(f).

[43] See Crowson v. Wakeham, 897 S.W.2d 779, 781 (Tex.1995) (citing Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (Tex.1945)); (Spies v. Milner, 928 S.W.2d 317, 318 (Tex.App.--Fort Worth 1996, no writ)).

[44] See Crowson, 897 S.W.2d at 781 (citing Kelley, 144 Tex. 14, 188 S.W.2d at 386; Spies, 928 S.W.2d at 318).

[45] Crowson, 897 S.W.2d at 783.

[46] Cf. TEX. PROB.CODE § 55(a) (specifically stating that a judgment in a proceeding to declare heirship ‘shall be a final judgment, and may be appealed or reviewed’).

[47] Crowson, 897 S.W.2d at 783.

[48] Do you agree? Is this consistent with Crowson? At best the court errs in that the “hearing’ is not the ‘proceeding.’ The removal action might be a “proceeding,” but the “hearing” is just one step in that process. A hearing is not a judgment. The key is the judgment in the “part” of the “proceeding,” not the hearing. If the court had said, “the ‘proceeding’ of which the order may logically be considered a part is the motion to remove” it might have been correct. This makes the same error in A&W and Stubbs.

[49] See id.

[50] See TEX. PROB.CODE § 222(b)(1), (4).

[51] TEX. PROB.CODE § 5(f).

[52] See Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex.1995) (citing Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945)).

[53] See id.

[54] See id. at 783.

[55] Cf. TEX. PROB. CODE § 55(a) (specifically stating that a judgment in a proceeding to declare heirship ‘shall be a final judgment, and may be appealed or reviewed’).

[56] Do you agree? Is this consistent with Crowson? At best the court errs in that the “hearing’ is not the ‘proceeding.’ The removal action might be a “proceeding,” but the “hearing” is just one step in that process. A hearing is not a judgment. The key is the judgment in the “part” of the “proceeding,” not the hearing. If the court had said, “the ‘proceeding’ of which the order may logically be considered a part is the motion to remove” it might have been correct. The same error is in A&W and Stubbs.

[57] An argument can be made for or against the quoted statement.

[58] See Crowson, 897 S.W.2d at 783; Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213-14 (1960); see also Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 297 (1960) (holding that dismissal of probate action because party is not an interested person is "in no sense ... interlocutory" and is a final, appealable judgment).

[59] 1

[60] New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990); Welch v. McDougal, 876 S.W.2d 218 (Tex.App.--Amarillo 1994, writ denied).

[61] North East Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966).

[62] Spies v. Milner, 928 S.W.2d 317, 318 (Tex.App.--Fort Worth 1996, no writ).

[63] Id. at 319; Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex.App.--Fort Worth 1987, no writ).

[64] 2 All references to rules herein are to the Rules of Civil Procedure.

[65] Tex.R. Civ. P. 245.

[66] See Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex.App.--San Antonio 1996, no writ) (reviewing cases decided under Probate Code Section 78(f)).

[67] See Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex.App.--Texarkana 1993, writ denied) (holding 45-day notice require of Rule 245 mandatory).

[68] The rule seems to be:

If the highest court that considers it says it is too late, it is to late. If the highest court says it is too early, it is too early. If the highest court says it is currently appealable, it is. The way to find out is to appeal, or not appeal, and let the court tell you what it thinks. If you are guessing whether it is appealable, the court may also be guessing, although it probably won’t say that it is.

[69] See TEX. PROB. CODE §§ 612-614

[70] See TEX. PROB. CODE §§ 5(f).

[71] See Crowson v. Wakeham, 897 S.W.2d 779, 782 (Tex. 1995).

[72] Id. at 783; see also A&W Indus. v. Day, 977 S.W.2d 738, 740 (Tex. App.- Fort Worth 1998, no pet.).

[73] See, e.g., Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.-Houston [1st Dist.] 1995, no writ) (holding that transfer order under section 608 of probate code did not resolve a severable claim and therefore could never, by itself, be appealable under Crowson)

[74] See, e.g., In re Hersey's Guardianship, 93 S.W.2d 810, 812 (Tex. Civ. App.-San Antonio 1936), judgment dism'd as moot sub nom, Holland v. Bailey, 133 Tex. 150, 127 S.W.2d 446 (Tex. Comm'n App. 1939, op. adopted); In re Estate of Izer, 693 S.W.2d 481, 483-84 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.).

[75] See TEX. CIV. PRAC. & REM. CODE § 15.064(a) (providing that "[n]o interlocutory appeal shall lie from the [venue] determination."); see also TEX. R. CIV. P. 87(6) ("There shall be no interlocutory appeals from [a venue] determination.").

[76] Did those courts think their own jurisdiction was so obvious that the order was final that it wasn’t worth mentioning, did they fail to detect the issue of their own jurisdiction, or did they prefer to ignore the issue?

[77] See, e.g., Spies v. Milner, 928 S.W.2d 317, 318 (Tex. App.-Fort Worth 1996, no writ); Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex. App.-Corpus Christi 1993, no writ).

[78] The court seems to be avoiding the truth. Two cases are cited. Referring to a “majority” is inaccurate at best. Vinyard is before Crowson. Spies is after. The case after Crowson is Spies, by this court. The Spies court did not mention Crowson and might have been unaware of it. This court seems to prefer not explaining why it ignored Crowson. Spies used the substantial right analysis. It was after Crowson. Is this court now saying that it didn’t know about Crowson when it wrote Spies, that Spies is erroneously analyzed, and that Spies should not be relied upon? If so, why doesn't it say so? Is it embarrassed? If that is not what is meant, what does it mean? Does this court consider Spies good law?

[79] See Crowson, 897 S.W.2d at 783.

[80] See Grounds v. Lett, 718 S.W.2d 38, 39 (Tex. App.-Dallas 1986, no writ).

[81] Since appealing the transfer order, appellants have also appealed several other orders in the ward's guardianship proceeding: a sanctions order; an order dismissing causes of action in Archer and Wichita Counties; an order granting the ward's motion in limine that appellants have interests adverse to the ward; another transfer order; and an order terminating the guardianship. Appellants have acted to perfect their appeals of these matters in both this court and the First or Fourteenth Court of Appeals. They do not explain why the transfer order would not be appealable with any one or all of these other orders, which, presumably, appellants believe are final.

[82] 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)

[83] See Christensen v. Harkins, 740 S.W.2d 69, 72 (Tex. App.-Fort Worth 1987, no writ).

[84] If the legislature can’t state a test, can the court? Can anyone know whether a particular order in a difficult case is final.

[85] See, e.g., Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945) (determining that an order overruling a plea in abatement to petition to probate will was merely interlocutory, and was therefore not appealable); Stubbs v. Ortega, 977 S.W.2d 718, 721 (Tex. App.-Fort Worth 1998, pet. denied) (addressing the issue because there is no express statute which declares the trial court's order to allow a guardian to file for divorce on behalf of her ward is a final and appealable order).

[86] See Kelley, 188 S.W.2d at 386 (interpreting the predecessor to section 5(f) of the probate code).

[87] Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).

[88] See Estate of Wright, 676 S.W.2d 161, 163 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.).

[89] See Crowson, 897 S.W.2d at 783.

[90] See Jani-King of Memphis, Inc. v. Yates, 965 S.W.2d 665, 666 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

[91] 1 For example, in the context of executions, a garnishment action, although ancillary to the underlying suit, is a separate proceeding. See Holtzman v. Holtzman, No. 06-98-075-CV, slip op. at 6, 1999 WL 176131, at *2 (Tex. App.-Texarkana April 1, 1999, pet. filed). Because it is a separate proceeding, an appeal will lie from a final judgment in a garnishment suit independently of the underlying suit. See Varner v. Koons, 888 S.W.2d 511, 513 (Tex. App.-El Paso 1994, no writ). In the summary judgment context, an order is final only if it disposes of all parties and all issues in a case. See North East Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

[92] See Street v. Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988).

[93] See Crowson, 897 S.W.2d at 781.

[94] See id.

[95] See id. at 783.

[96] See id.

[97] See id. at 782

[98] Tex. Prob. Code § 55(a).

[99] See Crowson, 897 S.W.2d at 782.

[100] 2 There is such a prohibition in the family code. Section 155.204 provides that "[a]n order transferring or refusing to transfer the [suit affecting the parent-child relationship] is not subject to interlocutory appeal." TEX. FAM. CODE § 155.204(e)

[101] See Crowson, 897 S.W.2d at 782.

[102] 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)

[103] All citations have been deleted.

[104] 1 TEX. PROB. CODE § 5(f)

[105] 2 In re Murphy, 1 S.W.3d 171, 172 (Tex. App.--Fort Worth 1999, no pet.) (citing Crowson v. Wakeham, 897 S.W.2d 779, 782 (Tex. 1995))

[106] 3 Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex. App.--Fort Worth 1987, no writ)

[107] 4 Crowson, 897 S.W.2d at 783

[108] 5 In re Murphy, 1 S.W.3d at 173 (Brigham, J. dissenting).

[109] Did it? Why do other courts say that Crowson may have criticized or eliminated this concept?

[110] 6 Crowson, 897 S.W.2d at 782 (citing Estate of Wright, 676 S.W.2d 161, 163 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.)); see also Meek v. Hart, 611 S.W.2d 162, 163 (Tex. Civ. App.--El Paso 1981, no writ)

[111] 7 Compare In re Murphy, 1 S.W.3d at 173 ("we question whether the 'adjudication of a substantial right' inquiry is still viable post-Crowson") with Estate of Vigen, 970 S.W.2d 597, 599 n.2 (Tex. App.--Corpus Christi 1998, no pet.) ("[w]e do not consider Crowson to have invalidated the 'substantial right' analysis").

[112] Do you agree?

[113] How long must parties wait? Must creditors remain unpaid until the creditor phase is complete? If money is paid to creditors during administration, might the estate be depleted before an appeal is possible? Do creditors claims which arise after death delay the process further. Is a 27 year wait required? See the dissent in Bailey later in this course.

[114] 8 See Logan v. Barge, 568 S.W.2d 872, 873 (Tex. Civ. App.--Beaumont 1978, no writ).

[115] 9 TEX. PROB. CODE § 203

[116] February 17, 2000 (TexApp-Austin 2000)

[117] Can the entire guardianship be transferred, or only the “contested portion” of the guardianship?

[118] 1 The application is styled "In the County Court of Milam County" but bears a Milam County District Clerk's file stamp. We note also that the order appointing Bill the temporary guardian and enjoining appellants from certain actions is also styled as a county court order, but bears the district court cause number and is signed by the Milam County district court.

[119] This interesting substantive issue is not within the scope of jurisdiction, so it is not within this course.

[120] 5 Columbia complains only that the probate order barring its claim in cause number 25,040-D, is void for lack of jurisdiction. Columbia does not argue that it is not a final order. See Tex. R. App. P. 38.1(h)

[121] See Tex. Prob. 5(f) (final orders of any court exercising original probate jurisdiction are appealable to courts of appeals).

[122] See Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647, 650 (Tex. App.--Texarkana 1997, writ denied) (because estate did not appeal from final probate order approving bank's claim, order became final judgment not vulnerable to collateral attack); cf. Carroll v. Carroll, 893 S.W.2d 62, 68-69 (Tex. App.--Corpus Christi 1994, no writ) (void order subject to collateral attack). Columbia Rio Grande Regional Hospital v. Stover.

[123] April 28, 2000 (TexApp -Corpus Christi 2000)

[124] Is there a “probate court” in Hays County?

[125] See Tex. R. Civ. P. 12.

[126] Travis County has a statutory probate court with probate in its name.

[127] See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).

[128] See id.

[129] See Fletcher v. National Bank of Commerce, 825 S.W.2d 176, 177 (Tex. App.--Amarillo 1992, no writ).

[130] 1 McDaniel argues that because Logan asserted allegations of malpractice against him, his use of collateral estoppel is defensive and not offensive. The summary judgment motion did not address any malpractice counterclaims, so they are not at issue here.

[131] See Thomas v. Thomas, 902 S.W.2d 621, 625 (Tex. App.--Austin 1995, writ denied) (citing Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990)).

[132] 2 Logan argues that the Hays County court could not have ruled that Johnson had capacity to contract because that question was the central issue in the guardianship proceedings and could not have been resolved in the preliminary Rule 12 hearing. We find this argument unmeritorious. The Hays County order on the Rule 12 motion held only that Johnson was competent to retain his own attorney when he hired McDaniel to represent him. This holding did not address the ultimate issue of Johnson's capacity to manage his own affairs and would not have precluded a later determination that Johnson required a guardian to manage his day-to-day affairs.

[133] See Eagle Properties, Ltd., 807 S.W.2d at 721.

[134] See State Bd. of Ins. v. Williams, 736 S.W.2d 259, 260-61 (Tex. App.--Austin 1987, no writ).

[135] See Tex. Prob. Code § 605.

[136] See id. §§ 5(f), 606(f).

[137] See Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Kelley v. Barnhill, 188 S.W.2d 385, 386 (Tex. 1945); Youngs v. Choice, 868 S.W.2d 850, 852 (Tex. App.--Houston [14th Dist.] 1993, writ denied).

[138] See Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex. App.--Fort Worth 1987, no writ); Tex. R. Civ. P. 301.

[139] See Kelley, 188 S.W.2d at 386.

[140] See Estate of Navar v. Fitzgerald, 14 S.W.3d 378, 380 (Tex. App.--El Paso 2000, no pet.).

[141] See Crowson, 897 S.W.2d at 783.

[142] Id.

[143] 931 S.W.2d 706, 712 (Tex. App.--Fort Worth 1996, no writ)

[144] See id.

[145] June 15, 2000, (TexApp - Austin 2000)

[146] See Tex. Prob. Code § 5(g) ("All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals."); Spies v. Milner, 928 S.W.2d 317, 318 (Tex. App.--Fort Worth 1996, no writ); Youngs v. Choice, 868 S.W.2d 850, 852 (Tex. App.--Houston [14th Dist.] 1993, writ denied).

[147] Tex. Prob. Code § 5(g); Crowson v. Wakeham, 897 S.W.2d 779, 782-83 (Tex. 1995); Youngs, 868 S.W.2d at 852; Taliaferro v. Tex. Commerce Bank, 660 S.W.2d 151, 153 (Tex. App.--Fort Worth 1983, no writ) (op. on reh'g).

[148] Crowson, 897 S.W.2d at 782-83.

[149] See Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.--Houston [1st Dist.] 1995, no writ) (holding transfer order not appealable because, among other things, it does not resolve a claim); Grounds v. Lett, 718 S.W.2d 38, 39 (Tex. App.--Dallas 1986, no writ) (holding order granting motion to transfer is not final, appealable order).

[150] In re Murphy, 1 S.W.3d 171, 173 (Tex. App.--Fort Worth 1999, no pet.).

[151] (FN1). Ms. Brittingham's application for ancillary probate was brought under Tex. Prob. Code § 95.

[152] (FN2). Ms. Brittingham sought ancillary letters testamentary for herself, stating the executors named in the will had resigned. She did not notify the Webb County probate court that the Mexican probate court had appointed a successor trustee. The current status of the successor trustee is not clear from the record.