
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00565-CV


Myrna K. Sparkman, Appellant

v.

Roy E. Murray, Appellee





FROM COUNTY COURT AT LAW NO. 1 OF BELL COUNTY
NO. 26,254, HONORABLE EDWARD S. JOHNSON, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Myrna Sparkman appeals from the trial court's order granting partial
summary judgment in favor of appellee Roy E. Murray, independent executor of the estate of
Filomena Murray.  The trial court's order denied Sparkman's request to remove Murray as executor
on the ground that he failed to collect certain debts owed to the estate.  We dismiss this appeal for
want of jurisdiction.

BACKGROUND
		This dispute arose from the probate proceeding for the estate of Filomena Murray. 
Under the terms of Filomena's will, her son, Roy E. Murray, was appointed independent executor
of the estate. (1)  Sparkman, Murray's sister and a beneficiary under the will, filed an application to
remove Murray as independent executor on the grounds that he had (1) failed to seek reimbursement
for certain debts owed to the estate, (2) failed to obtain adequate insurance for two residences owned
by the estate, (3) failed to collect fair market rent in connection with the two residences, and (4) was
attempting to sell one of the residences to himself for less than its appraised value, in conflict with
his fiduciary obligation to the estate.  Sparkman's allegation regarding debts owed to the estate was
based on her claim that Filomena had made certain loans during her lifetime to Murray and two of
her other children, Robert Murray and Christine Hood, and that Murray refused to seek repayment
of these loans on behalf of the estate.  Sparkman also brought claims against Murray, both
individually and in his capacity as independent executor, for breach of fiduciary duty. (2)
		In response, Murray filed a motion for summary judgment, asserting that the cash
amounts Sparkman claimed to be outstanding loans were actually gifts from Filomena to her
children.  Murray further argued that Sparkman had failed to present clear and convincing evidence
to rebut the presumption that a transfer of property from a parent to a child represents a gift.
		After a hearing, the trial court issued an order titled, "Order Granting Contestant's
Partial Motion for Traditional Summary Judgment."  This order denied Sparkman's request to
remove Murray as independent executor on the ground that he had failed to seek repayment of debts
owed to the estate, and included an express finding that Sparkman had "failed to rebut the
'presumption of gifts' by clear and convincing evidence" with respect to the funds advanced by
Filomena to Murray, Robert, and Hood.  The order also gave Murray ten days to present proof that
he had obtained insurance on the residences owned by the estate and to advise the court "of what
actions he intends to take regarding the collection of the fair market value of 'rental'" on the
residences, or else the court would remove him as executor on its own motion. (3)  Sparkman then filed
a notice of appeal from the trial court's order granting partial summary judgment.  

DISCUSSION
Jurisdiction
		Because we cannot reach the merits of this appeal in the absence of appellate
jurisdiction, we must first address the jurisdictional concerns raised by the nature of the trial court's
order.  No party to this appeal argues that the trial court's order was not final and appealable, but we
are compelled to raise the issue on our own motion.  See Buffalo Royalty Corp. v. Enron Corp.,
906 S.W.2d 275, 277 (Tex. App.--Amarillo 1995, no writ) (identifying courts of appeals'
"sua sponte obligation to verify our power to act").
		The order at issue here is titled, "Order Granting Contestant's Partial Motion for
Traditional Summary Judgment," and does not purport to finally dispose of all claims and parties
in this probate proceeding.  Generally, with a few statutory exceptions, appeals may be taken only
from final judgments that dispose of all pending claims and parties.  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) ("Appellate courts have jurisdiction to consider immediate appeals of
interlocutory orders only if a statute explicitly provides appellate jurisdiction.").
		Probate proceedings, however, are an exception to the "one final judgment" rule.  See
Tex. Prob. Code Ann. § 4A(c) (West Supp. 2009) ("A final order issued by a probate court is
appealable to the court of appeals."); see also Lehmann, 39 S.W.3d at 192;  Kelley v. Barnhill,
188 S.W.2d 385, 386 (Tex. 1945). (4)  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.  Thus, the trial court's order in this case is final and appealable only if it "finally
disposes of and is conclusive of the issue or controverted question for which that particular part of
the proceeding was brought."  Id. 
		The Texas 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). 
		In the present case, there is no relevant rule or statute that declares the type of order
at issue here final and appealable, so 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.  Here, the order can logically be considered
a part of the proceeding instituted by Sparkman to seek the removal of Murray as independent
executor of the estate.  Accordingly, the relevant live pleading is Sparkman's second amended
application for removal.  As previously discussed, Sparkman's application did not seek removal
solely on the ground that Murray failed to collect debts owed to the estate, but also on the grounds
that Murray had failed to obtain adequate insurance in connection with residences owned by the
estate, failed to collect fair market rent in connection with the residences, and was attempting to sell
one of the residences to himself for less than its appraised value.  Sparkman's application also raised
a number of claims against Murray for breach of fiduciary duty.  Other than the allegation regarding
debts owed to the estate, the trial court's order leaves all of the issues raised in Sparkman's
application unresolved.  The trial court and the parties appear to have agreed that the summary
judgment would not fully resolve the issues in Sparkman's application, as the following exchange
took place during the summary-judgment hearing:
 
	THE COURT:		[A]ssuming for the sake of argument that I agree with
your client's position or your position in behalf of
your client, what remedy [are] you asking of me?

	MURRAY'S COUNSEL:	We're asking for a Partial Summary Judgment on Ms.
Sparkman's claim that money was advanced that were
intended to be loans and have to be repaid.  

					And Your Honor, additionally, we would ask that The
Court deny the request by Ms. Sparkman to remove
Mr. Murray as the Executor, on the basis that he has
not paid back any loans that were given to him, or that
he hasn't forced Robert Murray or Christina Hood to
also repay back that money.
 
					. . . .

	THE COURT:		I take it that you're not asserting that that's the only
claim that they base their Request for Removal on? 
There are other--

	MURRAY'S COUNSEL:	Yes, Your Honor.

	THE COURT:		--bases.
 
	MURRAY'S COUNSEL:	There's pending claims on issues, other issues.

	THE COURT:		Other issues.  Okay. [Sparkman's counsel], do you
wish to present anything else, any other case law or
anything like that?

					. . . .
 
	SPARKMAN'S COUNSEL:	I think we have an admission from the party himself
saying, "I've got a loan."  That is--it's an admission
it's a debt.  It's certainly enough to present the
question to the jury whether it is a gift or a loan.

					And we have multiple reasons to remove him, so I'm
not a hundred percent--Well--

	THE COURT:		I mean, I understand that.


		This discussion reflects the parties' and the trial court's understandings that the partial
summary judgment would resolve only the limited issue of whether Murray should be removed as
executor for failure to seek repayment of certain funds advanced by Filomena to her children. 
Consistent with this understanding, the trial court's order expressly limited its denial of Sparkman's
request to the issue of debts owed to the estate.  While the trial court's order did allude to
Sparkman's allegations related to insurance and rental income for property owned by the estate, it
neither granted nor denied Sparkman's request to remove Murray on those grounds.  Further, the
order makes no mention of Sparkman's claims against Murray for breach of fiduciary duty, her
request for damages, including damages resulting from Murray's failure to collect rent on estate
property, or her request that Murray be removed on the ground that he was attempting to improperly
benefit from his position as executor by selling himself an asset of the estate for an amount less than
its appraised value.
		While probate proceedings are an exception to the one-final-judgment rule, the order
appealed from here does not "dispose of all issues in the phase of the proceeding for which it was
brought," and is therefore interlocutory and unappealable.  De Ayala v. Mackie, 193 S.W.3d 575, 578
(Tex. 2006); see also In re Estate of Willett, 211 S.W.3d 364, 367 (Tex. App.--San Antonio 2006,
no pet.) (holding that partial summary judgment in suit brought by will's beneficiaries was
interlocutory and unappealable because it did not dispose of all issues raised in beneficiaries'
petition).  Accordingly, we must dismiss this appeal for want of jurisdiction. (5) 



__________________________________________
					             Diane M. Henson, Justice			
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed:   October 29, 2010
1.   To avoid confusion, we will refer to the appellee as "Murray," and will refer to all other
individuals sharing the last name "Murray" by their first names.
2.   Murray is an appellee in this appeal only in his capacity as independent executor of the
estate.  Sparkman does not appeal any ruling by the trial court on her claim against Murray
individually for breach of fiduciary duty, an issue that will be more fully discussed in connection
with our jurisdictional analysis.
3.   The record reflects that nine days after the order was issued, Murray filed a letter with the
court containing the requested information.  
4.   The instant action was filed prior to the effective date of probate code section 4A(c), but
we cite the current version for convenience, as it is substantially similar to its predecessor,  probate
code section 5(g).  See Act of May 1, 2001, 77th Leg., R.S., ch. 63, § 1, 2001 Tex. Gen. Laws 104,
105 ("All final orders of any court exercising original probate jurisdiction shall be appealable to the
courts of appeals."), repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex.
Gen. Laws 4273, 4279.
5.   We note that an interlocutory order can be appealed by agreement of the parties and the
trial court, or may be made final by a severance order if it meets the severance criteria.  See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(d) (West 2008); Crowson v. Wakeham, 897 S.W.2d 779, 783
(Tex. 1995) ("A severance order avoids ambiguities regarding whether the matter is appealable."). 
The record in this appeal does not contain a severance order or an order complying with civil practice
and remedies code section 51.014(d).

