DISMISS in Part, AFFIRM in Part; and Opinion Filed August 11, 2016.




                                              Court of Appeals
                                                               S      In The


                                       Fifth District of Texas at Dallas
                                                           No. 05-15-00432-CV


                          IN THE ESTATE OF FRILEY S. DAVIDSON, DECEASED


                                          On Appeal from the Probate Court No. 1
                                                  Dallas County, Texas
                                           Trial Court Cause No. PR-09-3999-1

                                             MEMORANDUM OPINION
                                          Before Justices Bridges, Lang, and O’Neill 1
                                                  Opinion by Justice O’Neill
             Appellant J. Stacy Davidson, a former co-executor of the estate of Friley Davidson,

challenges two orders signed by the trial court: (1) a partial summary judgment removing

appellant as co-executor, and (2) an order denying appellant’s motion for new trial following a

jury trial on the issue of damages. 2 Appellant argues that his appeal of the summary judgment is

timely, his removal was improper, and the trial was undermined by incurable jury argument. We

conclude the summary judgment appeal is untimely, so we dismiss the appeal insofar as it argues

appellant’s removal as co-executor was improper. We affirm the trial court’s judgment.




     1
         The Hon. Michael J. O’Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
     2
         Friley Davidson had named his father, L. Stacy Davidson, and his brother, J. Stacy Davidson, as co-executors of his estate. Both co-
executors were removed by the summary judgment order appealed in this action. Only J. Stacy Davidson appeared at the trial on damages, and
he is the only appellant before this Court.
                                                                    Background

           Friley Davidson died in December 2009; his father and appellant were named co-

executors of his estate that same month. In May 2011, appellee Judye Gremm—who was a

devisee of Friley’s will—filed, and subsequently amended, a motion to remove the co-executors

from office. The motion also sought to recover damages, costs, and attorney’s fees and to have

Gremm replace the co-executors. Gremm filed a motion for partial summary judgment on her

request to remove the co-executors; the motion was granted by order dated February 22, 2013

(the February 22 Order). 3

           On July 12, 2013, the trial court granted Gremm’s application and appointed her

Dependent Administrator with Will Annexed. In that capacity, she intervened in the proceeding

she had initially brought personally to remove the co-executors. In October of the following

year, when the case was specially set for trial, appellant raised his first challenge to the

February 22 Order by filing his Motion for Reconsideration of Partial Summary Judgment and

Motion to Modify Discovery Control Plan. The trial court did not grant the motion, but the trial

was re-set for December.

           Following trial, the jury returned a verdict in favor of Gremm. 4 The trial court signed its

judgment awarding Gremm $202,747.88 in actual damages, attorney’s fees through trial of

$111,266.27, conditional appellate attorney’s fees, interest, and costs. Appellant filed his motion

for new trial addressing the trial court’s judgment but not the February 22 Order; the motion was

denied.

           This appeal followed.

     3
        Two months later, Gremm filed a second partial motion for summary judgment, seeking damages, reimbursement of expenses, and
attorney’s fees. Both former co-executors responded to the motion, but it appears the matter was referred to arbitration, and neither our record
nor the trial court’s docket sheet indicates a ruling was made on the second motion
     4
        The single issue that did not favor Gremm was the jury’s refusal to award conditional attorney’s fees for her in the event of appeal. The
trial court granted judgment notwithstanding the verdict for Gremm on that issue, and appellant has not challenged that portion of the judgment.



                                                                     –2–
               The Motion to Dismiss: Whether the February 22 Order is Appealable

          Shortly after appellant filed his notice of appeal, Gremm filed a motion to dismiss the

portion of the appeal challenging the co-executors’ removal as untimely. Gremm argued the

February 22 Order was final and appealable under Texas law, and—because appellant did not

challenge that order for more than two years—the portion of the appeal dedicated to appellant’s

removal should be dismissed. Appellant filed a response to the motion to dismiss, arguing the

February 22 Order was not final and appealable until the “ongoing” matters of damages and

attorney’s fees were resolved in the December 2014 trial. We deferred ruling on the motion to

dismiss and instructed the parties to address in their briefs to the Court whether the February 22

Order is appealable. Accordingly, in his first issue, appellant contends the February 22 Order is

appealable in this proceeding because it left related claims pending in the underlying probate

matter.

          Probate orders are an exception to the rule that there may be only one final judgment in a

case. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). In probate cases, “multiple

judgments final for purposes of appeal can be rendered on certain discrete issues.” Lehmann v.

Har-Con Corp. 39 S.W.3d. 191, 192 (Tex. 2001). These exceptions to the one-judgment rule are

necessary because of the need to “review controlling, intermediate decisions before an error can

harm later phases of the proceeding.” In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex.

App.—Dallas 2009, no pet.) (citing De Ayala, 193 S.W.3d at 578). The supreme court has

instructed us to evaluate the finality of an order (1) by determining whether the order represents

the adjudication of a “substantial right,” and (2) by determining whether the order disposes of all

issues in the phase of the proceeding for which it was brought. De Ayala, 193 S.W.3d at 578.5


     5
       The De Ayala court instructed that an “express statute . . . declaring the phase of the probate proceedings to be final and appealable”
would, of course, control our analysis. 193 S.W.3d at 578. No such statute applies in this case.



                                                                    –3–
The finality of an order is a legal question we review de novo. Guardianship of Miller, 299

S.W.3d at 184.

       This Court and other Texas courts have allowed appeals from orders removing an

executor or estate administrator. Kirkland v. Schaff, 391 S.W.3d 649, 655 (Tex. App.—Dallas

2013, no pet.) (citing In re Estate of Miller, 243 S.W.3d 831 (Tex. App.—Dallas 2008, no pet.);

In re Estate of Washington, 262 S.W.3d 903, 905 (Tex. App.—Texarkana 2008, no pet.); Geeslin

v. McElhenney, 788 S.W.2d 683 (Tex. App.—Austin 1990, no writ)). Considering the record in

this case, it is apparent that removal of the co-executors represented the adjudication of a

substantial right of those co-executors. See, e.g., Spies v. Milner, 928 S.W.2d 317, 319 (Tex.

App.—Fort Worth 1996, no writ) (disqualification of executrix adjudicated her substantial right

to serve and was final, appealable order); see also In re Estate of Boren, 268 S.W.3d 841, 845

(Tex. App.—Texarkana 2008, pet. denied) (“The right to serve as the executor of an estate is a

‘substantial right’ and a denial of that right is a final and appealable order.”). Moreover, we have

stated that an order removing an estate administrator is appealable because it “brings to a

conclusion a discrete phase of the probate proceeding.” Kirkland, 391 S.W.3d at 655.

       Appellant stresses that when he was removed as co-executor, Gremm’s requests to

replace him as administrator and to recover damages were still pending. That is correct. But if

appellant’s legal argument is correct—and he should not have been removed—then a timely

appeal would have mooted both of those pending issues. The parties and the trial court would

have been spared the time and cost involved in appointing a replacement administrator and in

trying the issue of damages. This is precisely why we require timely appeal of such issues: so

the appellate court can identify any error in a controlling, intermediate decision before that error

causes harm in later phases of the proceeding. See Guardianship of Miller, 299 S.W.3d at 184.

We conclude the trial court’s February 22 Order removing appellant as a co-executor of the

                                                –4–
estate was final and appealable. By failing to appeal that order in a timely fashion, appellant

waived his challenge to it.

       We grant Gremm’s motion to dismiss appellant’s challenge to his removal as co-

executor, and we dismiss that portion of the appeal for lack of jurisdiction.       We overrule

appellant’s first issue. Given this disposal of his first issue, we need not address appellant’s

second issue challenging his removal as co-executor.

                                      Incurable Jury Argument

       In his third issue, Davidson argues the trial court erred by denying his motion for new

trial because Gremm’s counsel, Keith Staubus, engaged in incurable jury argument.            The

argument at issue involved Gremm’s damages claim for household furnishings that she alleged

were taken improperly by the co-executors; the specific furnishings addressed were oriental rugs

that had belonged to Friley Davidson. Gremm alleged that the co-executors had charged the

estate thousands of dollars for cleaning the rugs, purchasing new rug pads, and shipping the rugs

to themselves, and then they had kept the rugs for themselves. This issue was controverted

throughout the parties’ litigation. However, in his closing argument to the jury, appellant’s

attorney stated the following:

       We’re going to shift gears a little bit now and this may surprise the Court, but we
       got something we agreed on. The plaintiff’s damage claim was $4,468 related to
       the rugs. This is item 4 on the summary. The rugs were shipped to Dr.
       Davidson’s address in Oxford, Mississippi. The proof’s come out; we’ve all seen
       it.

       What happened in the trial during cross-examination by Mr. Staubus, the
       defendant Stacy Davidson agreed that the evidence demonstrates that Dr.
       Davidson probably should have paid for the cleaning and pads, not the estate,
       since the rugs were shipped to Dr. Davidson’s personal residence. As such, Mr.
       Davidson agreed that the estate was damaged by $4,468 because Dr. Davidson
       has yet to reimburse the estate for these expenditures. Wow, attorneys agree on
       something.

       So basically, Mr. Davidson[’]s taken that off the table and said you know what,
       we probably should have paid for that.

                                              –5–
Some minutes later, when Staubus addressed the issue of the rugs in his own closing, he spoke

with apparent frustration:

       Now, the Armen rugs: Thank you five years later for finally admitting for the
       first time you did something wrong. Yeah, you had to sue me for it for five years
       and incur all these attorney’s fees, and yeah, I was wrong on that one. He’s
       known about that, both of the executors have known about that for five years.
       They said on their depositions and got grilled about it three years ago. And today
       is the first time they’re realizing it; say yeah, that was wrong. We stole money out
       of the estate and we used it to pay for personal benefit. And yeah, well you know
       what we do owe all that after all. (Emphasis added.)

The emphasized statement forms the basis of appellant’s complaint. He argues it was improper

for Staubus to implicate appellant was guilty of criminal conduct in this civil proceeding that is

governed by entirely different procedures and burdens of proof.

       Ordinarily, error concerning improper jury argument must be preserved by a timely

objection that is overruled by the court. Living Ctrs. of Tex. v. Penalver, 256 S.W.3d 678, 680

(Tex. 2008) (per curiam). Appellant did not object to the above-quoted use of the word “stole”

until all closing arguments were completed. Because this untimely objection did not give the

trial court the opportunity to cure any error through an instruction to the jury, appellant failed to

preserve his objection.

       Appellant argues, however, that the jury argument at issue was not merely improper: it

was incurable. Therefore, including his complaint in his motion for new trial was sufficient to

preserve it for our review. See TEX. R. CIV. P. 324(b)(5). But incurable jury argument is rare.

See Living Ctrs. of Tex., 256 S.W.3d at 681. An appellant must show that “the argument by its

nature, degree, and extent constituted such error that an instruction from the court or retraction of

the argument could not remove its effects.” Id. at 680–81; see also Nguyen v. Myers, 442

S.W.3d 434, 442 (Tex. App.—Dallas 2013, no pet.) (required showing is “that the probability the

improper statement caused harm is greater than the probability the verdict was grounded on the

proper proceedings and evidence”). The party claiming incurable harm must persuade the court
                                                –6–
that, based on the record as a whole, the offensive argument was so extreme that a “juror of

ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary

to that to which he would have agreed but for such argument.” Phillips v. Bramlett, 288 S.W.3d

876, 883 (Tex. 2009) (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (1954)).

       Incurable jury argument has been found in arguments that (1) appeal to prejudice, (2)

make unsupported, extreme, and personal attacks on opposing parties and witnesses, and (3)

accuse the opposing party of manipulating a witness without evidence of witness tampering.

Living Ctrs. of Tex., 256 S.W.3d at 681. The supreme court has stated “incurable argument is

that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. On its

face, Staubus’s one-time use of the word “stole” does not appear to be of this “same class of

impropriety.” See id. However, we are unable, on the record before us, to make a proper

analysis of counsel’s remark. To establish that an argument was incurable, the appellant must

explain why opposing counsel’s argument was incurable “based on an evaluation of the whole

case, from voir dire to closing argument.” See Arthur J. Gallagher & Co. v. Dieterich, 270

S.W.3d 695, 707–08 (Tex. App.—Dallas 2008, no pet.) (citing Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001)). We must consider the record as a whole to determine whether the

argument was so extreme as to be incapable of cure. See Phillips, 288 S.W.3d at 883.

       In this case, though, we do not have a complete record. Appellant has brought forward

only excerpts of the record, including his own testimony, the testimony of expert witness Nathan

Griffin, and the closing arguments. Our review of this portion of the record does not persuade us

the argument at issue was incapable of cure. And “[w]hen confronted with an incomplete record,

we presume the omitted portions are relevant to the appeal and the evidence contained within the

omitted portions of the record support the trial court’s judgment.” Imagine Auto. Group v.




                                              –7–
Boardwalk Motor Cars, Ltd., 430 S.W.3d 620, 632 (Tex. App.—Dallas 2014, pet. denied). We

conclude appellant has not established that opposing counsel’s jury argument was incurable.

       We overrule appellant’s third issue.

                                          Conclusion

       We dismiss the appeal from the trial court’s February 22, 2013 partial summary judgment

order. We affirm the trial court’s judgment.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE, ASSIGNED



150432F.P05




                                               –8–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE ESTATE OF FRILEY S.                           On Appeal from the Probate Court No. 1,
DAVIDSON, DECEASED                                   Dallas County, Texas
                                                     Trial Court Cause No. PR-09-3999-1.
No. 05-15-00432-CV                                   Opinion delivered by Justice O’Neill.
                                                     Justices Bridges and Lang participating.

        In accordance with this Court’s opinion of this date, the appeal from the trial court’s
February 22, 2013 partial summary judgment order is DISMISSED, and the judgment of the
trial court is AFFIRMED.

       It is ORDERED that appellee Judye Gremm recover her costs of this appeal from
appellant J. Stacy Davidson.


Judgment entered this 11th day of August, 2016.




                                               –9–
