Texas Estate, Will,
Trust, and Probate Case Review
Course 1, Current Cases on Trial and
Appellate Court Jurisdiction
© A. Hawkins 2000
CLE Course Provider
youknowitall.com
Table of Contents
Part 1.
Appellate Jurisdiction and Finality of Orders
Case 1.1 In re Murphy, July 29,
1999, 1 S.W.3d 171 (TexApp Fort Worth
1999)
•Majority Opinion by
Justice Richards, joined by Justice Day
•Dissenting Opinion
by Justice Brigham
Case 1.2 Estate of Navar v. Fitzgerald February 17, 2000, 14 S.W.3d 378 (TexApp El Paso 2000)
Case 1.3 Woollett v. Matyastik February 17, 2000 (TexApp Austin 2000)
Case 1.4 Columbia Rio Grande Regional Hospital v.
Stover April 28,
2000 (TexApp -Corpus Christi 2000)
Case 1.5 Logan
v. McDaniel, June 15, 2000, (TexApp -
Austin 2000)
Part 2. Trial Court Probate Jurisdiction
Case 2.1 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)
Case 2.2 Garza v. Rodriguez, January 26, 2000 (TexApp - San Antonio 2000)
Case 2.3 Enax v. Noack, January 31, 2000 (TexApp Houston[first dist.] 2000)
Case 2.4 Shuld v Dembrinski, March 17, 2000, 12 S.W.3d 485 (TexApp - Dallas 2000)
Case 2.5 Jansen v. Firzpatrick, March 2, 2000
(TexApp Houston [14th district] 2000)
Case 2.6 Phifer, administrator of the Estate of
Bailey v. Nacogdoches County Central Appraisal District April
25, 2000 (TexApp Tyler 2000)
•Majority Opinion by Justice Worthen, joined by
Justice Hadden •Dissenting Opinion by Chief Justice Murphy
Case 2.7 Sabine Gas Transmission Company, et al. v.
Winnie Pipeline Transmission Company and Southeastern Marketing Company, et al March 2, 2000 (TexApp Houston [14th dist.] 2000)
Case 2.8 Herring v. Kubicek, July 12, 2000, (TexApp San Antonio 2000)
•Majority Opinion by Chief Justice
Hardberger, joined by Justice López, and joined in part by Justice Green who
also dissented in part
•Concurring and dissenting opinion by:
Paul W. Green, Justice
A Note on Probate Jurisdiction
Texas,
probate jurisdiction is not a subject for the timid. There are hundreds of
published appellate opinions on Texas probate jurisdiction since probate
jurisdiction was “reformed” in 1973. It
is not an easy subject. A surprisingly large portion of Texas probate
litigation is void because it is in courts which lack jurisdiction. Other
litigation is erroneously dismissed for lack of jurisdiction by courts that do
have jurisdiction. Court proceedings without jurisdiction are void. Many
lawyers think estate and trust litigation is easy. It isn’t. Many lawyers and judges don’t even know the
issues, much less the law. Many
clueless lawyers become trial and appellate judges. Probate jurisdiction law is complicated. Some law is unwritten
and undecided. In some cases, the appellate courts appear to be guessing
whether they have jurisdiction to hear the appeal. Sometimes they seem to be
guessing which trial court has jurisdiction.
Sometimes the judges on an appellate court disagree among
themselves. Texas estate jurisdiction
has been described as a “nightmare”*[1] but it isn’t literally a nightmare.
It is more like a horror story that causes nightmares for those who are exposed
to it. Do you dare read on?
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 that was not appealed is final and may no longer be contested.
4. The court of appeals finds that a
probate order that was not appealed is interlocutory and may be contested.
5. The trial court had jurisdiction to
hear what it heard.
6. The trial court did not have
jurisdiction to hear what it heard.
7. The party sued the judge, but the court
in which the suit was filed lacked jurisdiction.
8. The judge sued the party and the lawyer
for the party for suing the judge, but the court in which the suit was filed
lacked jurisdiction.
9. The court of appeals claims that
judicial efficiency is the goal, thus demonstrating a sly sense of humor.
Texas
probate jurisdiction is not simple or rational. Much is unclear and unsettled. It is a mess.*[2] If anyone
thinks they know it all, this course may change your opinion. When it comes to Texas probate jurisdiction,
no one knows it all. No one can know it all. For those who enjoy complexity,
this course is a delight. Those who seek rational patterns will be
frustrated. These cases may give you a
headache. Aspirin may help.
Author’s Note
Most citations by
the court are moved from the opinions to footnotes in order to enhance
readability. Commentary is provided, both in the main text and in footnotes.
Footnotes by the teacher are indicated with an asterisks [*] in the text and in
the footnote.*[3] Footnotes without an asterisks [*] are either
footnotes by the courts or the courts citations moved to footnotes. Some
footnotes by the court and some repetitive citations are omitted.*[4] Some names
are shortened to first or last names.*[5]
The Course
Part 1. Appellate Jurisdiction and Finality of Orders
When an appeal of a probate
order is filed, the court may decide that the order is interlocutory, not
final, so it does not have jurisdiction.
If you fail to appeal, the appellate courts may decide that it was a final
order. Since it was not appealed, it is too late to challenge the order. The
rules are not clear. Five recent cases suggest that the choice may be wrong, no
matter what it is. We begin with In re
Murphy[6] and Estate of Navar
v. Fitzgerald[7] in which 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, before reviewing Woollett,[8] Columbia[9] and Logan[10] in which 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.*[11] We also
review the dissent in Murphy.
1.1 In re Murphy 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)
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. [12] . . . [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.[13] To be final and
appealable, the order need not fully dispose of the entire proceeding.[14] 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.’[15]
“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.[16]
“Appellants
cite several cases in which venue rulings concerning guardianships were
appealed before the entire guardianship proceeding was disposed of.[17] 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.[18] In addition,
none of the cases discuss the appellate jurisdiction issue.*[19]
“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.[20] Most 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.[21] 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.[22]
“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.[23] 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[24]
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.[25] 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, the question
of whether an order is final for purposes of appeal is frequently left to the
courts.[26] 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.[27] 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."[28]
“The Corpus
Christi court determined that a ‘substantial right’ makes the probate order
appealable.[29] 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.[30]
“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.[31] But the term
"final judgment" applies differently in different contexts.[32][33]
“In
Crowson, the "proceeding" was the heirship determination.[34] The
"order in question" was a summary judgment order, determining that
the claimant Crowson was not an heir.[35] 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.[36] Therefore, the
summary judgment did not dispose of that whole "particular phase" of
the probate proceeding.[37] 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.[38] [39] 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.[40]
“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.[41]
“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.[42] It is for
these reasons that I dissent. In re
Murphy[43]
1.2
Estate of Navar v. Fitzgerald, February 17, 2000 , 14 S.W.3d 378 (TexApp-El Paso 2000, no pet.)
“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.”[44]
“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.[45] 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.[46] 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.[47]
“Despite this apparently simple test expressed by the
Supreme Court, the law regarding appealability of probate orders is less than
well-settled.[48] Crowson did not expressly overrule prior
case law on appealability; indeed it quoted with approval a frequently-cited
court of appeals case allowing interlocutory appeals of probate orders
adjudicating a "substantial right."[49] The courts of appeals are split as to
whether the "substantial right" test remains a valid inquiry after
Crowson.[50]
“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. 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,*[51] 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.[52] 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.[53] 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.” Estate of Navar v. Fitzgerald[54]
”
Compare Navar with
Woollett
v. Matyastik[55] which was decided by the Austin Court of Appeals on
February 17, 2000, the same day as Navar.
1.3
Woollett v. Matyastik February
17, 2000 (TexApp-Austin 2000)
“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’*[56] 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.[57] 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.” *[58] Woollett v. Matyastik[59]
At this point, in a
footnote, the Austin court of Appeals states, “appellants 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.”
Woollett v. Matyastik[60]
1.4 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (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 section.
“The final order barring Columbia's claim was
appealable to this Court.[61] [62] Because no direct appeal of the September
24, 1997, probate order was taken by Columbia, it cannot now attack the order
collaterally.” [63] Columbia Rio Grande Regional Hospital v.
Stover[64]
1.5 Logan v. McDaniel, June 15, 2000, (TexApp - Austin 2000)
“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*[65] 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).[66] 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.[67] 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.[68] Collateral
estoppel, or issue preclusion, prevents relitigation of particular issues
already resolved in a prior suit.[69] 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.[70] [71]
“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.[72] 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.[73]
“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.[74] 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.[75] 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.[76] All final
orders of any court exercising original probate jurisdiction are immediately
appealable to the courts of appeals.[77] To be deemed
final and appealable, an order rendered in a probate proceeding need not
finally dispose of the entire proceeding.[78] 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.[79]
“It has been held that an appealable order
in a probate proceeding must adjudicate conclusively a controverted question or
substantial right.[80] The
continued viability of the "substantial right" test is apparently in
some doubt.[81] 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.[82] 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.[83]
“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,[84] 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.[85]
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,[86]
Part 2. Trial Court Probate
Jurisdiction
2.1 Columbia Rio Grande Regional Hospital v. Stover April
28, 2000 (TexApp -Corpus Christi 2000)
Columbia[87] shows how a creditor may turn a claim against an
estate into a liability to the estate, a remarkable feat which is easy in
Texas. The path through the courts is
an interesting one, that is all too representative of the tangled processing of
probate cases and issues in Texas. We quote extensively from the opinion
because merely reporting on it doesn’t do it justice.
In Texas, the first test in probate litigation is determining
which court has jurisdiction. Many fail
that test. The rules governing creditors claims are difficult and treacherous.
Many fail to pick their way through them. The rules governing the interplay of
jurisdiction, creditors claims, and independent administrations are almost
impossible to follow. The best guidebook may be the classic tale of Alice in
Wonderland. Clearly the spirit of Lewis
Carroll is alive. Relax, take a deep breath, and proceed with more from the
Corpus Christi court of appeals in Columbia.
“Appellant
Columbia Rio Grande Regional Hospital, a medical provider, filed a declaratory
action against Stover, independent executrix of the estate of Reed, deceased.
Stover filed a motion for summary judgment asserting, inter alia, the action
was barred by res judicata and collateral estoppel. . . . We affirm.
“Columbia
provided medical services to Reed for an on-the-job injury. Columbia charged Reed for services provided
in the amount of $15,395.85, and later filed a hospital lien for that amount
in Hidalgo County.[88] Subsequently,
Reed filed suit against his employer in the 206th District Court in Hidalgo
County (Reed Lawsuit). Columbia filed notice of its hospital lien in the Reed
Lawsuit.[89] During the
course of the lawsuit Reed died, and
Stover filed an application to probate Reed's will. The probate court, County
Court at Law No. 4, Hidalgo County, in Cause No. 25,040-D, appointed Stover
independent executrix of Reed's estate. Stover stepped in as plaintiff in the
Reed Lawsuit. When the lawsuit settled, the 206th District Court entered
judgment whereby the defendant's insurer, Motors Insurance Corporation
(Motors), agreed to tender to Stover the settlement amount of $135,000.00, out of which Columbia's hospital
lien was to be satisfied, depending on the outcome of litigation between
the estate and Columbia. Motors issued a $15,395.85 check payable to Stover's
trustee and Columbia. Stover refused to sign the check over to Columbia and the
district court placed the funds in its registry.
“At
Stover's request, the district court
ordered Motors' check transferred to the registry of the county court where the
estate was being probated. Columbia
then filed an authenticated claim for Reed's medical expenses in the probate
proceeding. In response, Stover
filed a motion to bar Columbia's claim asserting the claim did not attach to
the estate or, alternately, the claim was untimely filed. The probate court
granted Stover's motion.
“Contemporaneously
with these proceedings, Columbia filed
an original declaratory judgment action against Stover urging its rights
pursuant to the hospital lien. Columbia's action was assigned the same cause
number as the probate proceeding in County Court at Law No. 4. Stover answered,
counterclaimed, and filed a motion for summary judgment based on the
affirmative defenses of res judicata and collateral estoppel. In her motion,
Stover asserted Columbia's causes of action were barred because Columbia's
claims had been adjudicated by either: (1) the judgment of the 206th District
Court regarding Reed's personal injury cause of action; or (2) the order of the
probate court barring Columbia's claim. Columbia responded and objected to
Stover's summary judgment evidence. Columbia also filed a cross motion for
summary judgment and amended its petition. Stover did not amend her motion.
“On
January 26, 1998, by agreement of the parties, the probate court severed
Columbia's action against Stover from the probate proceeding and assigned the
severed action cause number 25,040-D-1. On February 3, 1998, the probate court
granted Stover's summary judgment motion. The probate court did not rule on
Columbia's cross motion for summary judgment. On February 10, 1998, Stover
non-suited her counterclaim against Columbia.
“In
addition to the foregoing litigation, Columbia
filed suit against Motors in County Court at Law No. 3, asserting liability for
paying over the hospital lien and for not paying the proceeds directly to
Columbia. Motors filed an unopposed motion to consolidate Columbia's suit
against Motors with cause number 25,040-D. The motion was granted on February
4, 1998.
“By
points of error one and three Columbia complains that the summary judgment is
not final because it does not dispose of all claims and parties. Columbia first
asserts this appeal is taken from cause number 25,040-D, the cause into which
its claims against Motors were consolidated. Columbia argues that because the
summary judgment does not address its claims against Motors, it is
interlocutory. In response, Stover asserts this appeal is from cause number
25,040-D-1, a cause severed out of 25,040-D. Stover contends because Columbia's
claims against Motors were never before the trial court in the severed cause,
she did not need to address them.
“We agree with Stover that the appeal is
from case number 25,040-D-1. On
January 26, 1998, the trial court signed an agreed order severing Columbia's
cause of action against Stover from the probate proceeding, cause number
25,040-D, and assigning that action a new cause number, 25,040-D-1.[90] The court
granted Stover's summary judgment in the severed action on February 3, 1998.
The following day, February 4, 1998, Columbia's lawsuit against Motors was
consolidated with the probate proceeding, cause number 25,040-D, not the
severed cause. Columbia's claims against Motors were never before the trial
court in cause number 25,040-D-1. As Motors was never a party to the severed
lawsuit, it was not necessary for the summary judgment to address Columbia's
claims against Motors.
“. .
. Finally, Stover concedes that the
order was interlocutory because the summary judgment order did not address
Stover's counterclaims. The probate court, however, non-suited Stover's
counterclaim on February 10, 1998, seven days after the entry of the summary
judgment. Where an interlocutory order is entered disposing of the interests of
less than all parties and claims, that order does not become final until a subsequent
order is entered disposing of the remaining parties and claims.[91] Once an order
has been entered disposing of all remaining parties and issues, all the orders
merge, creating a final and appealable judgment. Id. Therefore, the probate
court's summary judgment, interlocutory in nature when granted, became final on
February 10, 1998, when the trial court disposed of Stover's counterclaim.
Because we conclude the judgment from which Columbia appealed is a final
judgment, this Court has jurisdiction to hear Columbia's appeal. . . .