
NO. 07-04-0042-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 25, 2006
 ______________________________

IN RE: ESTATE OF FRANK HERSEY, DECEASED
------------------------------

LINDA KAY RISINGER HERSEY

V.

REGINALD S.Y. LEE, INDEPENDENT EXECUTOR, ET AL. 
_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF MONTGOMERY COUNTY;

NO. 98-17,027-P; HONORABLE DENNIS WATSON, JUDGE
_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

	Appellant Andrews Kurth LLP filed a notice of appeal from an order of the County
Court at Law No. 1 in Montgomery County, Texas, in probate cause no. 98-17,027-P, the
estate of Frank J. Hersey, deceased.  The order, entitled "Interlocutory Order," denied
Andrews Kurth's attorney's fees and expenses in its representation of Reginald S. Y. Lee,
who served for a time as independent executor of Hersey's estate.  We dismiss the appeal.
	Before briefs were filed, we stayed Andrews Kurth's appeal pending our disposition
of 07-03-0219-CV, an appeal from a judgment against Lee entered in cause no. 01-15925-P in the same court.  On March 24, 2006, we issued our opinion on rehearing in Lee's
appeal, in which we reversed and rendered the judgment in part, affirmed it in part, and
entered a take-nothing judgment in favor of Lee.  Lee v. Hersey, et al., 2006 WL 756088
(Tex.App.-Amarillo March 24, 2006, no pet.).  On March 29, 2006, we issued an order
reinstating Andrews Kurth's appeal.  
	Andrews Kurth now has filed a motion asking this court to grant "summary reversal"
and remand of the trial court's order denying its fees and expenses or, alternatively, to find
the appeal moot.  The motion also requests that we take judicial notice of the record in
Lee's appeal, and stay the briefing deadlines.  For the reasons stated below, we dismiss
the motion and the appeal.
	The order from which Andrews Kurth appeals provided, in part, as follows:
	[A]ll of the claims of Andrews & Kurth, L.L.P. for all of its attorneys' fees and
expenses incurred in the representation of Reginald S.Y. Lee in both the
captioned Probate Proceeding and in Cause No. 01-15925; Justin Hersey,
Travis J. Hersey, and the Frank J. Hersey Family Trust v. Reginald S.Y. Lee,
et al.; in the County Civil Court at Law No. 1 of Montgomery County, Texas
are DENIED, provided however, if the Final Judgment Non Obstante
Veredicto in Cause No. 0115925 is reversed as to the rulings of breach of
fiduciary duties and unlawful civil conspiracy against Reginald S.Y. Lee,
Andrews & Kurth, L.L.P. may re-submit to the Dependent Administrator its
claim for attorneys' fees and expenses . . . .

	Andrews Kurth's present motion advises us that its appeal will present one issue,
that being its contention the trial court's interlocutory order improperly denied the firm fees
for its representation of Lee.  The motion asserts that summary reversal and remand of the
trial court order without full briefing is appropriate.  Considering the record before us in light
of Andrews Kurth's motion, we conclude the appeal is premature.   
	Section 5(f) of the Probate Code provides "[A]ll final orders of any court exercising
original probate jurisdiction shall be appealable to the courts of appeal."  TEX. PROB. CODE
§5(f) (emphasis added).  To be appealable under that authority, a probate order must be
conclusive of the issue for which the particular part of the proceeding was brought.  Wittner
v. Scanlan, 959 S.W.2d 640, 641 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (citing
Fischer v. Williams, 331 S.W.2d 210, 213 (Tex. 1960)).  "A probate order is appealable if
it finally adjudicates a substantial right: if it merely leads to further hearings on the issue,
it is interlocutory."  Wittner, 959 S.W.2d at 642; see also Crowson v. Wakeham, 897
S.W.2d 779, 783 (Tex. 1995) (stating "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").
	In the present case, the trial court's order states that if the judgment against Lee 
"is reversed as to the rulings of breach of fiduciary duties and unlawful civil conspiracy
against Reginald S.Y. Lee, Andrews & Kurth, L.L.P. may re-submit to the Dependent
Administrator its claim for attorneys' fees and expenses . . . ."  (emphasis added).  The trial
court's order anticipates further consideration of Andrews Kurth's claim following
disposition of Lee's appeal under certain circumstances.  Because, under the terms of the
order, there is the potential for further hearings regarding Andrews Kurth's claim for fees
and expenses, we conclude the trial court's order is merely interlocutory and does not
present a final appealable order.  Crowson, 897 S.W.2d at 783, Wittner, 959 S.W.2d at
642. (1) 
	We have jurisdiction to consider the appeal of an interlocutory order only when
expressly provided by statute.  Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per
curiam).  Finding the order appealed is interlocutory and no statute permits our
consideration of it, we dismiss Andrews Kurth's appeal for want of jurisdiction.  TEX. R.
APP. P. 42.3.  Accordingly, we also dismiss Andrews Kurth's requests for judicial notice and
for a stay of the briefing deadlines as moot. 
 
							James T. Campbell
							           Justice
 
 




1. Andrews Kurth recognizes in its motion that Lee and his attorneys are "entitled to
pursue below the return of what they lost: an award of attorneys' fees for that defense that
has now been vindicated on appeal." (emphasis added)
