Thursday, August 21, 2008

DWOJ | Challenged Probate Court order was not appealable

Appeal only proper from final judgment or from order for which interlocutory review is authorized by statute. Here, Court of Appeals dismisses attempted appeal from Probate Court order on finding that it was not final and that a variety of issues remained for resolution.


Generally, parties may appeal only from a final judgment. Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006); Bozeman v. Kornblit, 232 S.W.3d 261, 262 (Tex. App.--Houston [1st Dist.] 2007, no pet.). The Texas Probate Code provides, "All final orders of any court exercising original probate jurisdiction shall be appealable to the court of appeals." Tex. Prob. Code Ann. § 5(g) (Vernon Supp. 2007).

However, probate proceedings frequently create exceptions to the "one final judgment" rule because a trial court may sign several orders during the pendency of a probate proceeding that are final on a "discrete issue." Brittingham-Sada de Ayala, 193 S.W.3d at 578; Bozeman, 232 S.W.3d at 262-63; see also Young v. First Comm. Bank, 222 S.W.3d 454, 457 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (noting that there may be but "one final judgment rendered in any cause," pursuant to Texas Rule of Civil Procedure 301, except when "specially provided by law").

Texas courts have struggled with determining when "an otherwise interlocutory probate order is final enough to qualify for appeal." Brittingham-Sada de Ayala, 193 S.W.3d at 578. In Brittingham-Sada de Ayala, the Texas Supreme Court discussed two factors that courts should consider when determining whether a probate court's order is appealable. Id. Orders are appealable when the trial court has adjudicated a "substantial right" and when "the order dispose[s] of all issues in the phase of the proceeding for which it was brought." Id. (citing Crowson v. Wakeham, 897 S.W.2d 779, 782-83 (Tex. 1995)).

The Brittingham-Sada de Ayala court then stated the following test:

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. Id. (citing Crowson, 897 S.W.2d at 783). Therefore, "[A]n order that merely 'sets the stage' for further resolution is interlocutory and not appealable." Bozeman, 232 S.W.3d at 263 (citing Brittingham-Sada de Ayala, 193 S.W.3d at 579).

Here, Marjorie Thompson is attempting to appeal the trial court's order denying her motion for summary judgment on her petition for a bill of review. Thompson's petition for a bill of review started a new phase of the proceeding by requesting that the trial court reexamine its previous order admitting the nuncupative will to probate. See Tex. Prob. Code Ann. § 31 (Vernon 2003) (providing that an "interested [person] may . . . have any decision, order, or judgment rendered by the court . . . revised and corrected on showing error therein"). There is no statute governing this phase of the proceedings; therefore, we determine whether the trial court's order disposed of all of the issues in this phase of the proceedings. See Brittingham-Sada de Ayala, 193 S.W.3d at 578.

In denying Marjorie Thompson's motion for summary judgment, the trial court has not denied her the relief she requested in her petition for a bill of review; rather, the trial court found that summary judgment was improper because there remain genuine issues of material fact to be resolved.

Furthermore, the trial court's order denying Thompson's motion for summary judgment did not address her promissory estoppel claim seeking the imposition of a constructive trust or her claim that the decedent lacked the capacity to execute a nuncupative will, both of which were raised in her second amended petition but were not addressed in her motion for summary judgment. (2)

We conclude that the January 11, 2007 order denying Marjorie Thompson's motion for summary judgment did not "dispose of all issues in the phase of the proceeding for which it was brought," but "merely set[] the stage for the resolution of all proceedings" related to her petition for a bill of review. See Bozeman, 232 S.W.3d at 264 (citing Brittingham-Sada de Ayala, 193 S.W.3d at 578-79). Accordingly, this Court has no jurisdiction to consider this appeal. See Tex. R. App. P. 42.3(a).


We dismiss the appeal for lack of jurisdiction.

Thompson v. Myrow
(Tex.App.- Houston [1st Dist.] Aug 14, 2008)(Keyes) (probate case, finality of order, no interlocutory jurisdiction)

Find terms: appelllate jurisdiction, finality of orders, interlocutory appeal, dismissal for want of jurisdiction (DWOJ)

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