Texas Appellate Jurisdiction - Estate and Guardianship Cases

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© A. Hawkins 2004

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.”[1] How does this apply to a particular order in an ongoing proceeding? Is an 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 trial courts and 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. The Crowson test is not a clear test.

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. Failure to appeal can lose a case.

Probate and guardianship cases are generally subject to the same or similar procedural rules and concepts. The word probate may be used as a short way to refer to probate or guardianship proceedings.

The Scope and Objective of this Course

This course is a study of Crowson and all of the published opinions, 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, as well as the ability of the courts, to determine if a Texas probate or guardianship order is final and appealable.

The philosophy of this course 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 question some of the decisions, 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 decides that an appealed probate order is final and it has jurisdiction to hear the appeal.

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

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

4. The court of appeals decides 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.

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. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

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 author’s 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. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s 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.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

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. Fitzgerald 14 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)

Estate of Figueroa-Gomez March 7, 2002 (TexApp - Corpus Christi - 2002)

Brittingham-Sada de Ayala v. Brittingham July 2, 2003 (TexApp4 San Antonio 2003)

Villarreal v. Zukowsky 54 S.W.3d 926 (TexApp.-Corpus Christi 2001)

Moore v. Estate of Padillo February 5, 2003 (TexApp - San Antonio 2003)

In re Estate of Loveless 64 S.W.3d 564 (Tex.App.-Texarkana 2001)

In re: Estate of McKissick April 10, 2003 (TexApp13 Corpus Christi- Edinburg 2003)

Garner v. Long April 17, 2003 (TexApp2 Ft. Worth 2003)

Ramsay v. Morris April 24, 2003 (TexApp13 Corpus Christi - Edinburg 2003)

Halbert v. Box May 30, 2003 (Tex.App12 Tyler 2003)

Stephan v. Chamness July 17, 2003 (TexApp14 Houston 2003)

Wimer v. Bank of America October 2, 2003 (TexApp3 Austin 2003)

In re Sisco December 18, 2003 (TexApp9 Beaumont 2003)

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. In that situation, "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 rule 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.

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, but see the San Antonio Court of Appeals opinion in Guevara[2] which reverses a severance.

Crowson also restates the “policy to avoid constructions that defeat bona fide attempts to appeal.” What do you think the court means? 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.

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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 claimants, 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 § 55(a),[12] expressly provided the heirship proceeding judgment ‘shall be a final judgment.’[13]

“The Wright opinion does cite a number of other cases with the ‘substantial right’ language applied in a variety of contexts. 3[14] We have used the ‘substantial right’ language ourselves in making an analogy to the standards for an appealable receivership order.[15]

“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.[16] 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 all of the “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.’[17] 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.[18]

“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.[19] 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[20] (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[.]’ [21] However, unlike the partial summary judgment order in Crowson, which the court held was made final and appealable by a severance order,[22] 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.[23] 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[24] (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 was decided more than a year after Crowson, yet the Ft. Worth court of appeals uses the wrong test and is apparently 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.[25] 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.[26] Thus, a probate order is appealable if it ‘finally adjudicates a substantial right.’[27]

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.[28]