County court at law admitted a foreign will to probate and granted
ancillary letters testamentary. Executrix then sued Heir claiming that
she and other heirs wrongfully appropriated over $60 million in estate
assets. Heirs moved to dismiss Executrix’s action asserting that the
county court at law had no subject matter jurisdiction. The court denied
the motion and Heir appealed. The lower appellate court began its
analysis by holding that the county court at law’s order was final for
the purposes of appeal citing the landmark Texas case of Crowson v.
Wakeham, 897 S.W.2d 779 (Tex. 1995). Ayala v. Brittingham, 131 S.W.3d 3
(Tex. App.—San Antonio 2003). The Supreme Court of Texas reversed.
The court agreed with Executrix that the county court’s order was merely
interlocutory and hence unappealable because numerous pleadings and
issues were still pending in the county court at law. The court pointed
out that the appealing parties did not seek a severance order as the
court had urged in its Crowson opinion. In addition, “[b]ecause an order
denying a plea to the jurisdiction and refusing to remove an executor
does not end a phase of the proceedings, but sets the stage for the
resolution of all proceedings, the order is interlocutory.” The court
also rejected an argument that Civil Practice & Remedies Code §
51.014(a)(2) permits an interlocutory appeal.
Moral: A party appealing a lower court’s probate order must make certain
the order is appealable. If in doubt, the party wishing to appeal should
take some action such as seeking a severance order or asking the court
for a permissive interlocutory appeal.