By: Troy Hornsby, Miller, James, Miller & Hornsby, L.L.P., Texarkana

I. INTRODUCTION

Parties may generally appeal only from a final judgment. Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Traditionally, there is only one such final appealable judgment. See TEX. R. Civ. P. 301. Therefore, a party cannot appeal interlocutory rulings unless there is a specific legislative grant of jurisdiction to do so. New York UnderwritersIns. Co. v. Sanchez, 799
S.W.2d 677, 679 (Tex. 1990) (per curiam).

Likewise, with regard to probate proceedings, Texas Probate Code section 5(g) provides that “[aIll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.” TEX. PROB. CODE ANN. § 5(g) (Vernon 2003). The probate code specifies that some orders are final and appealable. For example, section 55(a) provides that a judgment that determines heirship is final and appealable. Id. § 55(a). But the probate code does not otherwise clarify what constitutes a “final” and, therefore, “appealable” judgment or order for purposes of section 5(g). Young v. First Cmty. Bank, 222 S.W.3d 454, 456 (Tex. App.-Houston [lIst Dist.] 2006, no pet.).

However, in an exception to the “one final judgment” rule, Texas law has long recognized that probate proceedings may involve multiple judgments “on certain discreet issues,” each of which may be “final for purposes of appeal.” Id. (citing De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). These “multiple” final judgments are exceptions to the “one final judgment” rule. De Ayala, 193 S.W.3d at 578. The need to review controlling, interlocutory decisions before an error can harm later phases of the probate proceeding has been held to justify this deviation from the “one final judgment” rule. See id.; Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.- Austin 2000, pet. denied); Christensenv. Harkins, 740 S.W.2d 69, 74 (Tex. App.-Fort Worth 1987, no writ).

Originally, it was held that such an appealable interlocutory order in a probate proceeding had to adjudicate conclusively a controverted question or a substantial right. See Kelly v. Barnhill,144 Tex. 14, 188 S.W.2d 385, 386 (1945) (interpreting the predecessor to section 5(f)). Under that standard, once the probate court adjudicated a “substantial right,” the order was appealable. See, e.g., Huston v. F.D.I.C., 800 S.W.2d 845, 848 (Tex. 1990); In re Est. of Wright, 676 S.W.2d 161, 163 (Tex. App.-Corpus Christi 1984, writ ref d n.r.e.). However, this “substantial right” test was later modified. See De Ayala, 193 S.W.3d at 578 (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). In Crowson, the Texas Supreme Court concluded that, in a probate setting, an otherwise interlocutory order is only appealable if: (1) 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; (2) the order is properly severed making it final; or (3) the order adjudicates a “substantial right” and the order disposes of all issues in the phase of the proceeding for which it was brought. However, 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 not appealable. De Ayala, 193 S.W.3d at 578; Crowson, 897 S.W.2d at 783. The first two standards are clear and objective. The third is more subjective but also represents the core of the probate exception.

II. EXPRESS STATUTE

Express statutes declaring a phase of the probate proceedings to be final are appealable under the probate exception. Crowson, 897 S.W.2d at 783. For example, as stated above, the Probate Code specifies that a judgment declaring heirship is a final appealable judgment. § 55(a); see also In re Est. of Loveless, 64 S.W.3d 564, 570 (Tex. App.-Texarkana 2001, no pet.) (order relating to section 54 final pursuant to section 55). Likewise, an order of confirmation or disapproval of the report of sale has been found to be final. In re Est. of Bendtsen, 229 S.W.2d 845, 848 (Tex. App.-Dallas 2007, no pet.) (citing § 355). Additionally, courts have found that other probate sections make judgments final even without the kind of express language found in Texas Probate Code section 55. See In re Est. of Gomez, 161 S.W.3d 615, 616 (Tex. App.-San Antonio 2005, no pet.) (order relating to section 83(a), second application for probate is appealable). However, an order approving final settlement pursuant to Texas Probate Code section 405 was found not to be final because it did not expressly authorize an appellate challenge and did not close the estate. Bozeman v. Kornblit, 232 S.W.3d 261, 264-65 (Tex. App.-Houston [1st Dist.] 2007, no pet.).

III. SEVERANCE

In Crowson,the Texas Supreme Court concluded that an interlocutory order, such as an interlocutory partial summary judgment, could be made final for appeal purposes by severing the claim from the remaining claims and parties. Crowson, 897 S.W.2d at 783. This is the same mechanism as that employed in non-probate cases to make an otherwise interlocutory order appealable. See, e.g. Teer v. Duddlesten, 664 S.W.2d 702, 703, (Tex. 1984). Interestingly, in at least one case, such a severance has been granted sua sponte by the appellate court in the interest of judicial efficiency in order to maintain jurisdiction under the probate exception. See In re Est. of Loveless, 64 S.W.3d at 571.

Like any other interlocutory order, an interlocutory probate order can be appealed if a statute declares it to be final and appealable or if it is severed to make it final and appealable. Crowson, 897 S.W.2d at 783. Therefore, the important core to the probate exception to the one final judgment rule is the substantial right test and the otherwise interlocutory orders it allows to be appealed.

IV. SUBSTANTIAL RIGHT

An order in a probate proceeding adjudicating a “substantial right” and disposing of all issues in
the phase of the proceeding for which it was brought is appealable under the probate exception. However, 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 raises issues or parties not disposed of, then the probate order is not appealable. Id. The Texas Supreme Court did not elaborate on this standard. Therefore, we must look to case law to interpret it. A list of cases applying this third exception, broken down by general subject area, follows:

A. Estate Procedure

Orders concerning preliminary issues such as venue, transfer, and jurisdiction do not appear to meet the substantial right test under the probate exception. An order transferring a case from a general civil court to a probate court was found not to be appealable under the substantial right test. Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.-Houston [1st Dist.] 1995, no writ). Similarly, an order transferring venue on a guardianship proceeding was found not to satisfy the test. In re Est. of Fears, No. 06-03-00139- CV, 2004 WL 111423, at *1-3 (Tex. App. Texarkana Jan. 22, 2004, no pet.) (mem. op.); see also In re Est. of Murphy, 1 S.W.3d 171, 175 (Tex. App.-Fort Worth 1999, no pet.). Appellate courts have also found that an order denying a plea to the jurisdiction is not appealable. In re Est. of O’Bryant, No. 04-04- 00359-CV, 2004 WL 2616323, at *1 (Tex. App.-San Antonio Aug. 11, 2004, no pet.) (mem. op.); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex. App.-Fort Worth 2004, no pet.).

Orders admitting wills to probate may or may not meet the substantial right test. If an order admitting the will to probate disposed of all issues raised in the pleadings, conclusively disposes of that phase of the proceeding, and finally adjudicated a substantial right, it is final and appealable. In re Est. of Padilla,103 S.W.3d 563, 565-66 (Tex. App.-San Antonio 2003, no pet.). On the other hand, if the order admitting the will to probate merely leads to further hearings on an issue, it is interlocutory. Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex. App.-Corpus Christi 1993, orig. proceeding). For example, the Corpus Christi Court of Appeals determined that an order admitting a will to probate was not appealable because of a lingering issue concerning a no- contest clause. In re Est. of McKissick, No. 13- 02-022-CV, 2003 WL 1847072, at *2-5 (Tex. App.-Corpus Christi Apr. 10, 2003, no pet.) (mem. op.). Additionally, the Fort Worth Court of Appeals determined that an order admitting a will to probate was not appealable because it did not resolve a lingering issue of an interest in an estate. In re Est. of Wilson, No. 2-06-075-CV, 2006 WL 2986566, at *3 (Tex. App.- Fort Worth Sept. 19, 2006, no pet.) (mem. op.).

The Forth Worth appellate court has concluded that an order approving an inventory and appraisement was appealable. Garner v. Long, 106 S.W.3d 260, 266 (Tex. App.-Fort Worth 2003, no pet.). However, an order denying a motion to dismiss an ancillary probate proceeding or to have an executor removed is not appealable. De Ayala, 193 S.W.3d at 578. Finally, neither an order consolidating two cases nor an order granting a petition in interpleader was found to meet the probate exception. Wimer v. Bank of Am., No. 03-03-00394-CV, 2003 WL 22250342, at *1 (Tex. App.-Austin Oct. 2, 2003, no pet.)
(mem. op.).

B. Attorneys and Attorney’s Fees

Some orders concerning attorneys and fees are appealable under the substantial right test. For example, an order continuing the appointment of an attorney ad litem in a guardianship proceeding was found to be appealable. Coleson v. Bethan, 931 S.W.2d 706, 712 (Tex. App.-Fort Worth 1996, no writ). An order determining a Rule 12 motion pertaining to authority to represent a party was likewise determined to be appealable. Logan v. McDaniel,21 S.W.3d 683, 689 (Tex. App.- Austin 2000, pet. denied). Finally, an interim order approving a temporary administrator’s requests for payment of attorney’s fees and expenses was found to be appealable. Roach v. Rowley, 135 S.W.3d 845, 847 48 (Tex. App. Houston [ st Dist.] 2004, no pet.).

However, orders for attorney’s fees do not appear to be appealable under the substantial right test. For example, an order denying a request for attorney’s fees from a person attempting to remove an executor was found to not meet the substantial right test. Young, 222 S.W.3d at 459. Similarly, the denial of a law firm’s application for attorney’s fees earned representing an executor was found not to meet the test. In re Est. of Hersey, 223 S.W.457, 459 (Tex. App. Amarillo 2006, no pet.). In fact, lingering attorney’s fees claims can prevent another otherwise appealable order from being appealable. See, e.g., Stepan v. Chamness, No. 14-02-00842- CV, 2003 WL 21664297, at *1 (Tex. App. Houston [14th Dist.] Jul. 17, 2003, no pet.) (mem. op.) (holding order on multiple motions not final because claims against attorney remained); Halbert v. Box, No. 12-02-00342-CV, 2003 WL 21254918, at *1 (Tex. App.-Tyler May 30, 2003, no pet.) (mem. op.) (holding partial summary judgment which did not resolve attorney’s fees claim).

Finally, an order denying a motion to disqualify an attorney is not appealable. Spitaleriv. Est. of Dominguez, No. 4-04-00441-CV, 2005 WL 2988732, at *1 (Tex. App.-San Antonio Nov. 9, 2005, pet. denied) (mem. op.).

C. Personal Representatives

Many orders concerning personal representatives are appealable under the substantial right test. An order denying an application for letters testamentary based upon the disqualification of the applicant has been found to be appealable. In re Est. of Vigen, 970 S.W.2d 597, 599 (Tex. App.-Corpus Christi 1998, no pet.); see also Spies v. Milner, 928 S.W.2d 317, 318 19 (Tex. App.-Fort Worth 1996, no writ). An order denying a request to remove independent co- executors based upon lack of standing has also been held to be appealable. A & W Indus., Inc., v. Day, 977 S.W.2d 738, 740 (Tex. App.-Fort Worth 1998, no pet.). An order refusing to appoint an applicant as a co-executor was also
found to be appealable. In re Est. of Robinson, 140 S.W.3d 801, 805 (Tex. App.-Corpus Christi 2004, pet. dism’d). Likewise, an order removing a co-guardian was appealable. See generally In re Guardianshipof Finley, 220 S.W.3d 608 (Tex. App.-Texarkana 2007, no pet.). Finally, an
order setting bond of independent executor nominated to serve without bond was found to be appealable. In re Est. of Brimberry, No. 12-04-00154-CV, 2006 WL 861483, at *3 (Tex. App.- Tyler Mar. 31, 2006, no pet.) (mem. op.).

D. Summary Judgment

Partial summary judgments may or may not be appealable under the substantial right test. Partial summary judgments are not appealable if they do not address all issues raised by the pleading. See In re Est. of Willett, 211 S.W.3d 364, 367 (Tex. App.-San Antonio 2006, no pet.). Even a summary judgment with a “Mother Hubbard” clause in a probate proceeding was not final because it did not resolve all parties and claims. Villarreal v. Zukowsky, 54 S.W.3d 926, 929-30 (Tex. App.-Corpus Christi 2001, no pet.).

However, the Austin Court of Appeals found that a partial summary judgment determining ownership of property between an estate and a trust was appealable because it resolved a discrete phase of the litigation; however, its jurisdiction determination was explicitly based upon an order admitting the will to probate. Sanders v. Capitol Area Council, 930 S.W.2d 905, 909-10 (Tex. App.-Austin 1996, no writ). Similarly, the First Court of Appeals concluded that a summary judgment order finding a surviving spouse abandoned homestead rights and ordering former homestead property sold and proceeds divided was appealable. Churchill v. Mayo, 224 S.W.3d 340, 345 (Tex. App.-Houston [list Dist.] 2006, no pet.). However, in In re Estate of Davis, the Texarkana Court of Appeals found that a partial summary judgment resolved only one issue and was, therefore, interlocutory. In re Est. ofDavis, No. 06-07-00033-CV, 2007 WL 2609929, at *6 (Tex. App.-Texarkana Sep. 12, 2007, no pet.) (mem. op.). Likewise, an order resolving ownership of only one of several pieces of property was not final in a guardianship proceeding. Ramsay v. Morris, No. 13-02-045- CV, 2003 WL 1923513, at *4-5 (Tex. App. Corpus Christi Apr. 24 2003, no pet.) (mem. op.). In a probate action to construe a will, an order which did not dispose of a party’s claim for fair rental value or attorney’s fees was found not to have resolved all issues and was not appealable. Villarreal,54 S.W.3d at 929. Finally, a summary judgment resolving one party’s claim to interpleaded funds was not appealable because another party’s claim to the same funds was not resolved. Wimer, 2003 WL 22250342, at *1.

V. CONCLUSION

Under the probate exception parties may appeal certain specific probate orders which statutes declare to be final. Additionally, as in other appellate situations, severance can be employed in the probate setting to create a final appealable order from an otherwise non-appealable interlocutory order. These exceptions are clear and objective. However, the “substantial right” standard of the probate exception is more subjective. Different appellate courts may reach different conclusions as to what is a “substantial right” and whether the order may be considered a part of another phase of the proceeding. Therefore, in considering whether a particular order meets the “subjective right” test under the probate exception one must carefully review and apply precedent.

* See Hon. Don R. Willett, An InconvenientTruth: ConservativesBehavingCharitably,12 TEx. REV. L. & POL. 181, 191 n.64 (Spring 2008) (reviewing ARTHUR C. BROOKS, WHO REALLY CARES: THE SURPRISING TRUTH ABOUT COMPASSIONATE CONSERVATISM (Basic Books 2006) and citing Carry a Big Sticker, http://www.carryabigsticker.com/images/fema big_500.jpg (last visited May 23, 2008)).