                                   NO. 07-07-0135-CV

                              IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  JUNE 27, 2008
                         ______________________________

           IN THE ESTATE OF CHARLES MARK BERRY, SR., DECEASED
                     _________________________________

            FROM THE PROBATE COURT NO. 1 OF TARRANT COUNTY;

                NO. 05-3215-1; HONORABLE STEVE M. KING, JUDGE
                        _______________________________


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


                               MEMORANDUM OPINION


      Charles Mark Berry, Jr., as co-independent executor of his father’s estate, appeals

from an order of the probate court requiring that he turn over to his two sisters, also co-

independent executors, a certain sum of estate funds. Finding we are without jurisdiction

because the order of which Berry complains is interlocutory and not appealable by statute,

we will dismiss the appeal.


                                       Background


      Charles Mark Berry, Sr. died testate at age one hundred. His will, with a codicil, was

admitted to probate on the application of Berry. In accordance with the codicil, the
testator’s three children, Berry and appellees Beverly Jane Douglass and Dixie Lee Boley

were appointed co-independent executors without bond. Berry, an attorney licensed to

practice in Texas, appeared on his own behalf in probate proceedings while his sisters

retained an attorney who filed a notice of appearance in the case.


      Berry filed an inventory, appraisment and list of claims valuing the probate estate

at $35,850.05. The total included cash assets of $4,750.05, and an estimated income tax

refund of $6000. Although not contained in the clerk’s record, argument before the probate

court indicates appellees also filed an inventory. The record does not include an order

approving either inventory but from correspondence contained in the record it appears the

competing inventories each drew objections. There is no record indication the probate

court has considered the objections.


      Appellees subsequently filed a document in the probate court denominated

“Application for Turnover Relief.”     They complained that despite their status as co-

executors Berry unilaterally denied them access to “the vast majority of the Estate’s

assets.” They requested an order compelling Berry turn over to them two-thirds of the

estate’s funds. As grounds for their claim, appellees asserted their equal entitlement to

estate assets, the need to pay their attorney, and the desire to prevent a “wasteful drain

on Estate assets” caused by expected future requests for funds. In a separate paragraph

of the motion, appellees requested attorney’s fees according to Probate Code section 245

for “Berry’s misdeeds alleged herein.”1


      1
        Tex. Prob. Code Ann. § 245 (Vernon Supp. 2007) (section inter alia allows
recovery from personal representative of attorney’s fees incurred in obtaining personal

                                             2
       Berry filed an answer and special exceptions, served written discovery, and sought

a jury trial. When the court set the turnover motion for hearing, Berry objected to the

setting, moved for a continuance, and filed a plea to the jurisdiction.


       On February 6, 2007, the probate court heard the turnover motion along with Berry’s

motion for continuance and plea to the jurisdiction. The hearing was brief, consuming just

over nine pages of the reporter’s record. Evidence was not received. After hearing the

arguments of the parties, the court verbally denied Berry’s motion for continuance and plea

to the jurisdiction, ordered “two-thirds of the assets of the estate transferred” to appellees,

and ordered mediation of the case. The court made no ruling on appellees’ request for

attorney’s fees.


       On February 20, 2007, the court signed an “order for turnover” finding two-thirds of

the estate “assets” should be “turned over” to appellees. The decretal section required

Berry to deliver $7,236.04 to appellees “payable to the Estate.” The order made no

mention of the remaining two-thirds of the estate assets nor did it contain a ruling on

appellees’ request for attorney’s fees under section 245. It did, however, memorialize the

court’s February 6 verbal order compelling mediation.


       The record does not contain findings of fact and conclusions of law or evidence of

their request. Berry timely noticed an appeal.




representative’s compliance with neglected statutory duty).

                                              3
                                             Issue


       Berry presents three issues on appeal. By cross-point, appellees argue we lack

jurisdiction because the trial court’s order is interlocutory and not a type for which

interlocutory appeal is permitted.2 It is to the question of our jurisdiction that we turn first.


       The Probate Code states “[a]ll final orders of any court exercising original probate

jurisdiction shall be appealable to the courts of appeals.” Tex. Prob. Code Ann. § 5(g)

(Vernon Supp. 2007).        Probate proceedings present an exception to the “one final

judgment rule,”3 as “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)

(citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). The Probate Code

specifies some probate court orders are final and appealable, but contains no general rule

defining a “final order” appealable under section 5(g). Bozeman v. Kornblit, 232 S.W.3d

261, 262 (Tex.App.–Houston [1st Dist.] 2007, no pet.). In Crowson v. Wakeham, 897

S.W.2d 779 (Tex. 1995), the Supreme Court of Texas adopted the following standard

distinguishing final, appealable probate court orders from nonappealable interlocutory

orders:




       2
         We have jurisdiction to consider an immediate appeal of an interlocutory order only
if a statute explicitly so provides. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)
(per curiam); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2007)
(enumerating permitted appeals from interlocutory orders).
       3
      See Tex. R. Civ. P. 301 (unless “otherwise specially provided by law” only one final
judgment may be rendered in a cause).

                                               4
       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.


897 S.W.2d at 783; see Brittingham Sada De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.

2006) (quoting and applying Crowson).


       No one contends an express probate code provision declares an order like that at

issue here is final and appealable. The parties disagree on the ultimate effect of the order,

and thus disagree on the phase of this independent administration into which the order

falls. Berry contends the order effects a directed distribution of assets of the estate. His

reply brief emphasizes that such an order is not permissible in an independent

administration until two years have expired from the date of the order appointing the

independent executor.4 Appellees characterize the order as necessary to the performance

of their duties as co-independent executors, including the duty to pay attorney’s fees

incurred in connection with administration of the estate. Their turnover application cited

Probate Code section 242 in support of their contention they were entitled to have their

attorney’s fees paid as administration expenses, and complained that Berry refused to

deliver estate funds “for such payment . . . .”


       We express no opinion on the proper characterization of the trial court’s order.

Regardless whether it effects a distribution or simply orders that each of the co-



       4
           See Tex. Prob. Code Ann. § 149B (Vernon 2003).

                                              5
independent executors have possession of a share of the estate’s funds during

administration, we find it interlocutory. Berry supports his contention that the order is

appealable as a decree of partition and distribution with citation to In re Padilla, 103

S.W.3d 563 (Tex.App.–San Antonio 2003, no pet.). In Padilla the trial court tried a

successor independent executrix’s misappropriation claims against her predecessor and

heard an application for partition and distribution of the estate. It thereafter entered a

decree that the appellate court found addressed all the relief requested for the

misappropriation, and identified the persons entitled to a share of the estate and the

percentage to which each was entitled. It found the decree was a final appealable

judgment. Id. at 566. The order at issue here requires Berry to deliver $7,236.04 to

appellees. As noted, the record before us contains Berry’s inventory valuing the probate

estate at $35,850.05. The record also reflects disagreement over the inventory. If the

order is one for distribution, it manifestly does not resolve all the issues necessary to

achieve finality on the distribution of the estate.


       If one accepts appellees’ characterization of the order as placing estate assets in

their hands to allow them to pay their reasonable and necessary attorney’s fees, one must

consider that Berry has contended that appellees’ attorney has represented them

individually and not in their capacity as executors, and that the turnover application was an

effort to require him to bear a share of the cost of their attorney’s fees. The contentions

raise issues not resolved by the court’s order, compelling the conclusion it is interlocutory

under the test in Crowson, 897 S.W.2d at 783.




                                              6
       Moreover, as noted, by their turnover application, appellees also sought attorney’s

fees incurred as a result of their brother’s failure to deliver two-thirds of the estate to them.

Whether Berry engaged in conduct justifying an award according to Probate Code section

245 will require evidence of neglect and resulting costs. Cf. Fillion v. Osborne, 585 S.W.2d

842, 846 (Tex.Civ.App.–Houston [1st Dist.] 1979, no writ) (dependent administration). As

noted also, the probate court did not receive evidence at the hearing, and the order is silent

on the issue of appellees’ section 245 request for attorney’s fees. For this reason also, the

turnover order is interlocutory.


       We find the order did not dispose of all issues in the phase of the proceeding for

which it was brought.      De Ayala, 193 S.W.3d at 578.           We conclude the order is

interlocutory, lacking the attributes necessary for appealability under section 5[g].

Moreover, the interlocutory order is not made appealable by statute.               Accordingly,

expressing no opinion on the propriety of the trial court’s “order for turnover,” we sustain

appellees’ cross-point and dismiss the appeal for want of subject matter jurisdiction.




                                                    James T. Campbell
                                                         Justice




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