Young v. First Community Bank, 222 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Creditor petitioned to remove Executrix from office alleging that she
failed to file the inventory, appraisement, and list of claims and
sought attorney fees. The probate court did not remove Executrix but did
award Creditor attorney fees for its removal attempt. Executrix
appealed.
The appellate court dismissed the appeal concluding that it lacked
jurisdiction. The court explained Probate Code § 149C under which
Creditor received its attorney fees does not provide that an order
pursuant thereto is final and appealable. The court also indicated that
Executrix did not seek to severe the award of attorney’s fees and that
the probate court’s judgment did not dispose of all parties or issues in
a particular phase of the proceedings. Thus, consistent with the Texas
Supreme Court cases of De Ayala v. Mackie, 193 S.W.3d 575 (Tex. 2006)
and Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995), the court concluded
that the award of attorney fees was interlocutory and consequently not
appealable.
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.