Opinion
No. 07-15-00378-CV
02-24-2017
ESTATE OF RELLIS LEON EASLEY, DECEASED
On Appeal from the 84th District Court Hansford County, Texas
Trial Court No. CV04982 , Honorable Curt Brancheau, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
In this appeal from an ongoing probate proceeding, Kenneth Webb, a prison inmate appearing pro se, challenges the trial court's rulings on four motions he filed. Finding none of the rulings were final or otherwise made immediately appealable by statute, we will dismiss the appeal for want of jurisdiction.
Background
Webb's father, Rellis Leon Easley, died testate on March 9, 2007. His will named Webb as its sole beneficiary. The will was admitted to probate by order of the Hansford County Court on September 19, 2007. The court appointed Lou Walker independent executor of the estate, and she retained attorney Cecil Biggers as her attorney.
An inventory and appraisement filed by Walker on November 9, 2007, stated the total value of the estate was $36,261.45. Beginning in 2009, Webb's filings in the clerk's record demonstrate his disagreements with various actions of Walker and Biggers in the administration of the estate. The probate case was transferred from county court to district court by order of March 18, 2009.
In 2015 Webb filed a petition for writ of mandamus in this Court arguing the district court refused to set for hearing various motions he filed. The motions were: "demand for an accounting"; "motion to officially dismiss movant's attorney of record, George Harwood"; motion to "remove independent Executrix Lou Walker"; "motion for the court to dismiss estate attorney of record, Cecil Biggers"; and "motion to remove invalid or unenforceable child support lien." We conditionally granted Webb's petition. The following day the trial court set Webb's motions for hearing by submission, and shortly thereafter rendered its rulings on Webb's motions. Dissatisfied, Webb now appeals four of the five rulings.
In re Webb, No. 07-15-00050-CV, 2015 Tex. App. LEXIS 7532 (Tex. App.—Amarillo July 21, 2015, orig. proceeding) (mem. op.).
Analysis
After review of the parties' briefs and the record we notified them by letter of our concern that our jurisdiction of the appeal was lacking because the challenged orders were not immediately appealable. Webb has responded; Walker has not responded.
Generally, courts of appeals have jurisdiction only over appeals from final judgments. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har—Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Lehmann, 39 S.W.3d at 195. Unless "specially provided by law," only "one final judgment" may be rendered in any cause. TEX. R. CIV. P. 301. Likewise, the Texas Probate Code provided that "[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals." TEX. PROB. CODE ANN. § 5(g) (West Supp. 2003); cf. TEX. ESTATES CODE ANN. § 32.001(c) (West 2014) ("A final order issued by a probate court is appealable to the court of appeals"). However, probate proceedings present an exception to the "one final judgment" rule. De Ayala, 193 S.W.3d at 578. Thus in a probate proceeding, an order is final and appealable before the entire proceeding is concluded if the order disposes of a discrete phase of the litigation or if a statute expressly provides a specific type of order is appealable. Id. at 579; Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). An order which does not end a discrete phase of the proceedings, but only "sets the stage" for the resolution of all proceedings, is interlocutory. De Ayala, 193 S.W.3d at 579.
Effective January 1, 2014, the Legislature repealed the Texas Probate Code and recodified it as the Texas Estates Code. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 12, 2013 Tex. Gen. Laws 1512, 1732. Because Easley's death and the admission of his will to probate occurred in 2007, unless otherwise specified, we will follow the applicable provision of the Texas Probate Code. See Act of May 24, 2013, 83d Leg., R.S., ch. 1136, § 62, 2013 Tex. Gen. Laws 2740, 2754-55. Application of the Estates Code, however, would not change the disposition of this appeal in any respect. The recodification of the provisions of the Probate Code into the Estates Code was "without substantive change," and accomplished for the purpose of making the law "more accessible and understandable." TEX. ESTATES CODE ANN. § 21.001(a),(b) (West Supp. 2016).
Accounting
By his motion for accounting, Webb argued Walker had "not performed a full accounting of the estate since assuming her role" in 2007. He sought an order requiring that Walker perform "a thorough accounting" before the court ruled on Webb's motion to remove Walker as estate administrator. Prior to the submission of the motion, Walker filed a document entitled "accounting." Finding the accounting was filed, and apparently concluding that it satisfied Webb's demand, the trial court dismissed the motion as moot.
No statute makes a trial court's ruling on an interested person's demand for a periodic accounting immediately appealable, either as a final order or as an interlocutory appeal. An accounting under Probate Code section 149A includes matters subject to further action in the estate administration. Pollard v. Pollard, 316 S.W.3d 238, 240-241 (Tex. App.—Dallas 2010, no pet.) (citing TEX. PROB. CODE ANN. § 149A(a)(4) (debts and expenses), § 149A(a)(5) (property of the estate, if any, remaining in the executor's hands), and § 149A(c) (authorizing subsequent periodic accountings)); cf. TEX. ESTATES CODE ANN. § 404.001(a)(4),(5),(c) (West 2014). Because the trial court's ruling on Webb's motion for accounting did not end a discrete phase of the proceeding it was not immediately appealable and we lack appellate jurisdiction.
Removal of Walker as Independent Executor
In a lengthy motion, Webb sought removal of Walker as independent executor alleging as grounds that she embezzled part of the property committed to her care and engaged in gross misconduct or gross mismanagement in the performance of her duties. TEX. PROB. CODE ANN. § 149C(a)(2),(5) (West Supp. 2003); cf. TEX. ESTATES CODE ANN. § 404.003(2) (West 2014). Besides requesting Walker's removal and appointment of a successor if necessary, Webb sought an inventory of the estate, an accounting of the estate, and an order that Walker or the underwriter of her bond repay an amount of commission Webb alleged was excessive. The trial court ruled only that Webb's motion to remove Walker was denied. As already noted, Webb's request for an accounting was dismissed as moot. No ruling was made on his request for an estate inventory or the recoupment from Walker or her surety of allegedly excessive commission received. The trial court also made no determination whether Walker's commission was excessive.
We find the order denying Webb's motion to remove Walker was not final or otherwise appealable. No statute makes the trial court's order immediately appealable. Settle v. Robert, Nos. 14-07-00675-CV, 14-08-00250-CV, 14-09-00566-CV, 2010 Tex. App. LEXIS 7596, at *5 (Tex. App.—Houston [14th Dist.] Sep. 16, 2010, no pet.) (per curiam, mem. op.). The order did not conclude Walker's representation of the estate as executor. That phase of the proceeding will continue. De Ayala, 193 S.W.3d at 579; see Young v. First Cmty. Bank, N.A., 222 S.W.3d 454, 459 (Tex. App—Houston [1st Dist.] 2006, no pet.) (stating "De Ayala holds that an order that refused to remove an independent executor, which also denied the challenger's motion to dismiss an ancillary proceeding, is interlocutory and not appealable"); Settle, 2010 Tex. App. LEXIS 7596, at *6 (citing DeAyala with the parenthetical explanation an "order on motion to remove executor is not final, appealable order"). For that reason, and for the further reason that Webb's excessive-commission allegation is unresolved, the court's order did not dispose of a discrete stage of the litigation.
Removal of Biggers as Attorney for the Executor
Webb argued in his motion to remove Biggers that Biggers was appointed by the court. We find no such order. Rather, it appears Walker retained Biggers. See TEX. PROB. CODE ANN. § 145(h) (West 1980) (providing limited court involvement in independent administration); cf. TEX. ESTATES CODE ANN. § 402.001 (West 2014). The trial court chose not to remove Walker and as stated we lack jurisdiction to immediately review that order. So far as the record before us shows, Biggers' representation of Walker as executor continues. Because the order on Webb's motion to dismiss Biggers is not made immediately appealable by statute and as it did not end a discrete phase of the proceeding, we lack jurisdiction to review it.
Validity of Child Support Lien
The record indicates that during the early 1960s the decedent Easley was married to Audrey K. Stinnett, and that two children, Debra Easley and Michael Easley, were born to the marriage before it ended in divorce. Easley apparently was ordered to make periodic child-support payments beginning in February 1965. According to Webb, his father's obligation to make child-support payments ended on September 28, 1981, when the younger child reached age eighteen. It appears that, on Stinnett's motion, in April 2003 the Moore County Court at Law granted Stinnett a judgment for delinquent child support in the amount of $80,108.61. On May 28, 2003, Stinnett filed a notice of child-support lien against "all nonexempt real and personal property" of Webb. According to the notice of lien, the child-support arrearage was $38,026.11 with interest accruing at six percent.
Webb's motion to declare the child-support lien invalid was principally based on the theory that enforcement of a judgment or lien was barred as untimely. As noted, Stinnett did not file notice of a child-support lien until May 28, 2003. She died, according to Webb, in 2004.
The trial court's order ruled that the child-support lien "is valid and encumbers the property" of the estate. We do not consider the merits of the ruling, but note only that in any event, the court's order merely sets the stage for the continued administration of the estate, considering that the effect, if any, of the court's ruling on the further administration of the estate's assets and their ultimate disposition cannot now be known. The trial court's order denying Webb's motion to remove the child-support lien is not made immediately appealable by statute nor does it conclude the portion of the proceedings concerning the lien's effect, if any, on estate administration. The order is therefore not final and appealable.
Transfer to County Court
The trial court also ordered the case transferred to county court "for further administration." In his brief, Webb makes passing complaint that the case should not be returned to the county court. In a county such as Hansford County that has no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court the county court may, on its own motion, or shall, on the motion of a party, request the assignment of a statutory probate court judge to hear the contested portion of the proceeding or transfer the contested portion of the proceeding to district court. TEX. ESTATES CODE ANN. § 32.003(a)(1),(2) (West 2014); cf. TEX. PROB. CODE ANN. § 5(b) (West Supp. 2003). We see no reason why any future contested matters in the case cannot be transferred in the manner contemplated by the statute. In line with our analysis of Webb's other issues, we find the court's transfer order is not immediately appealable.
Conclusion
Finding we lack jurisdiction over the appeal of the challenged orders, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice