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.

EXCERPT FROM THE PANEL OPINION BY JUSTICE KEYES:

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).

Conclusion

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)

Fatal Mistake on Appeal - Missing deadline

Court of Appeals dismisses appeal as untimely where notice of appeal was filed day after it was due. Right to request extension waived.

How much time to file appeal (from final judgment*) in Texas?

A notice of appeal must be filed within 30 days after the date that a judgment is signed. Tex. R. App. P. 26.1. This time period is extended to 90 days if any party files: (1) a motion for new trial; (2) a motion to modify judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. Tex. R. App. P. 26.1(a).

An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209–10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605–06 (Tex. App.—Houston [1st Dist.] 1999, no pet.)

Here, the trial court signed the judgment in Tran’s case on June 8, 2007. Therefore, Tran’s notice of appeal was due by July 9, 2007. Tran filed his notice of appeal on August 9, 2007, which was 31 days after the expiration of the time period during which any notice of appeal must be filed.

Tran did not move for extension of time to file his notice of appeal. See Tex. R. App. P. 26.3 (allowing motion for extension of time to file notice of appeal within 15 days of notice’s due date). Accordingly, Tran’s notice of appeal was untimely, and we lack jurisdiction to hear this appeal.

Conclusion

We dismiss the appeal for lack of jurisdiction. All other pending issues in this appeal are overruled as moot. The Clerk is directed to issue the mandate. See Tex. R. App. P. 18.1.

PER CURIAM

Tran v. Poe
(Tex.App. - Houston [1st Dist.] Aug. 14, 2008)(per curiam) (prisoner lawsuits, inmate litigation, jurisdictional dismissal of appeals; notice of appeal was filed too late)
Before Chief Justice Sherry Radack, Justices Evelyn Keyes and Laura Carter Higley
Appellate Cause No. 01-07-00656-CV
Full style: Anh Viet Tran v. Ted Poe and Charles A. Rosenthal, Jr.
Appeal from 334th District Court of Harris County

*) Note different deadline for appealing from interlocutory orders:

Under the current rules, an appeal is perfected when a written notice of appeal is filed. Tex. R. App. P. 25.1(a). Appeals from interlocutory orders, when allowed, are accelerated appeals. Tex. R. App. P. 28.1. In accelerated appeals, the notice of appeal must be filed within twenty days after the signing of the order or judgment being appealed. Tex. R. App. P. 26.1(b).