      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                         NO. 03-10-00837-CV



                      Patricia Caroom and Douglas Caroom, Appellants

                                                 v.

 Nancy Coleman, Independent Executor of the Estate of Lorene H. Massengale, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
            NO. CV33,389, HONORABLE ED MAGRE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellee Nancy Coleman, Independent Executor of the Estate of Lorene H.

Massengale, has filed a motion to dismiss this appeal for lack of jurisdiction. Patricia and Douglas

Caroom each filed separate notices of appeal from the trial court’s order granting partial summary

judgment in favor of Coleman, removing Douglas as independent executor of the estate of Herbert

Massengale, and disqualifying Patricia as successor independent executor of the estate of Herbert

Massengale. Coleman contends that this Court lacks jurisdiction over the appeal because the trial

court’s order does not dispose of all parties and issues raised in this stage of the proceedings and

therefore is not final and appealable.

               Generally, appeals may be taken only from final judgments and certain interlocutory

orders made appealable by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West 2008) (allowing appeals from

certain interlocutory orders); Stary v. DeBord, 967 S.W.2d 352, 352 (Tex. 1998) (per curiam).

Probate proceedings, however, are an exception to the “one final judgment” rule. See Tex. Prob.
Code Ann. § 4A(c) (West Supp. 2010); see also Lehmann, 39 S.W.3d at 192; Kelley v. Barnhill,

188 S.W.2d 385, 386 (Tex. 1945). This exception is based on the fact that a “probate proceeding

consists of a continuing series of events, in which the probate court may make decisions at

various points in the administration of the estate on which later decisions will be based.”

Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied). As the Texas

Supreme Court explained in Kelley:


       [I]n order to authorize an appeal in a probate matter, it is not necessary that the
       decision, order[,] decree, or judgment referred to therein be one which fully and
       finally disposes of the entire probate proceeding. However, it must be one which
       finally disposes of and is conclusive of the issue or controverted question for which
       that particular part of the proceeding was brought.


188 S.W.2d at 386. The supreme court has clarified the rule described in Kelley by setting forth the

following test for determining whether an order in a probate proceeding is final and appealable:


       If 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, that statute
       controls. Otherwise, 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.


Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).1


       1
           Prior to the supreme court’s opinion in Crowson, courts had applied a “substantial right”
test to determine whether probate orders were appealable. See Crowson v. Wakeham, 897 S.W.2d
779, 782 (Tex. 1995); see also Estate of Wright, 676 S.W.2d 161, 163 (Tex. App.—Corpus Christi
1984, writ ref’d n.r.e.) (“[A]n order is appealable if it finally adjudicates some substantial right.
Whereas, on the other hand, if it merely leads to further hearings on the same issue, it is
interlocutory.”). The supreme court made clear in Crowson, however, that while adjudication of a
substantial right is “one of the factors for determining whether a probate order is appealable,” the
order must also “dispose of all issues in the phase of the proceeding for which it was brought.”
897 S.W.2d at 783. Applying this analysis, the supreme court determined that the trial court’s order

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               Because there is no relevant rule or statute declaring the type of order at issue here

final and appealable, we must look to the “proceeding of which the order in question may logically

be considered a part” and determine whether the order disposes of all issues and parties raised by the

relevant pleadings in that proceeding. Id. The trial court’s order granting partial summary judgment

may logically be considered a part of the removal proceeding initiated by Coleman. Coleman’s live

pleading in the removal proceeding is her third amended petition, which requested removal of

Douglas Caroom as independent executor, disqualification of Patricia Caroom as successor

independent executor, and appointment of Robert Massengale as administrator. See Tex. Prob. Code

Ann. § 223 (West 2003) (providing for appointment of successor representative if further

administration of estate is necessary after removal of executor). Coleman also sought attorney’s fees

related to the removal action and the disgorgement of executor commissions paid to Douglas

Caroom. See id. § 245 (West Supp. 2010) (providing for award of attorney’s fees when personal

representative is removed for cause).

               In her motion for partial summary judgment, Coleman sought only the removal of

Douglas Caroom and the disqualification of Patricia Caroom. Under a section of the motion titled,

“Matters Reserved,” Coleman stated that she wished to reserve her requests for attorney’s fees and

appointment of Robert Massengale as administrator, with those matters to “be heard in a separate

hearing after the current motion has been heard.”2 The trial court granted Coleman’s motion, issuing


granting partial summary judgment was not final and appealable because it determined only the
appellant’s heirship rights, leaving the heirship rights of a number of intervenors unresolved. See
id. at 782-83 (“While it is true that the determination that Crowson was not the common law wife
adjudicated her substantial right because she had no other basis to claim as an heir, it also left
pending all the other heirship rights of the intervenors.”).
       2
         At the time her motion for partial summary judgment was filed, Coleman’s live pleading
was her second amended petition, which did not include the request for disgorgement of executor’s

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an order removing Douglas Caroom as independent executor and disqualifying Patricia Caroom as

successor independent executor.      The trial court’s order expressly states that a “successor

independent executor will be appointed by the court at a subsequent hearing.” The order does not

address attorney’s fees.

               Reviewing the relevant pleadings and the relief granted in the trial court’s order, we

conclude that the order granting partial summary judgment does not dispose of all issues in this

particular phase of the probate proceeding.       Coleman’s requests related to attorney’s fees,

disgorgement of executor commissions, and appointment of an administrator remain pending and

unresolved. Because the order does not dispose of all issues raised by Coleman in the removal

proceeding, it is interlocutory. See Crowson, 897 S.W.2d at 783. Accordingly, we lack jurisdiction

over this appeal. We grant Coleman’s motion and dismiss the appeal for lack of jurisdiction.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Dismissed for Want of Jurisdiction

Filed: July 22, 2011




commissions. Coleman amended her pleadings to request disgorgement a few days after the trial
court granted partial summary judgment. Coleman’s third amended petition also added a request that
Douglas Caroom be ordered to reimburse the estate for his attorney’s fees and costs incurred in
defense of the removal action, based on a finding that he did not defend the action in good faith. See
Tex. Prob. Code Ann. § 149(C)(c) (West Supp. 2010) (providing that independent executor “who
defends an action for his removal in good faith,” is entitled to payment of his attorney’s fees and
costs out of the estate).

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