                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00157-CV

                                   William McDonald RIDDICK,
                                            Appellant

                                            v.
               Cynthia Riddick Marmolejo, Warren Pretlow Riddick and Patricia
      Cynthia Riddick MARMOLEJO, Warren Pretlow Riddick, Patricia Riddick Nathan,
                                  and William P. Riddick,
                                        Appellees

                         From the Probate Court No. 2, Bexar County, Texas
                                   Trial Court No. 2011-PC-3942
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 12, 2014

DISMISSED FOR LACK OF JURISDICTION

           The appellant, William McDonald Riddick, appeals an order dismissing a counterclaim he

filed in the probate court. The appellees, Cynthia Riddick Marmolejo, Warren Pretlow Riddick,

Patricia Riddick Nathan, and William P. Riddick, argue this appeal should be dismissed for lack

of jurisdiction because the dismissal order is not a final and appealable order, even under the

special standards that govern probate court orders. Before the briefs were filed, the appellees filed

a motion to dismiss this appeal. We carried the motion to dismiss with the appeal. We now grant

the motion, and dismiss this appeal for lack of jurisdiction.
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                                                 BACKGROUND

         The underlying lawsuit involves four groups of trusts, which were created for the benefit

of the Riddick siblings by other family members. 1 Each group of trusts is governed by the same

trust agreement. The Riddick siblings have different relationships with respect to each of the trusts.

For example, one sibling is the beneficiary of one of the trusts, while one or more of the other

siblings serve as trustee of that trust. Another sibling is the beneficiary of another trust, while one

or more other siblings serve as trustee of that trust.

         The appellees filed the underlying lawsuit, seeking declaratory and injunctive relief as to

the trusts, and a modification of the trust agreements. The appellant then filed a counterclaim,

seeking declaratory relief as to the trusts, and a modification or termination of some of the trusts.

The appellees filed a plea to the jurisdiction and moved to dismiss the counterclaim, arguing that

it constituted an impermissible collateral attack on prior judgments affecting the trusts. The probate

court granted the plea to the jurisdiction, and dismissed the counterclaim. The appellant appeals

the dismissal order. The appellees’ initial lawsuit remains pending in the probate court.

                                                   DISCUSSION

         As a general rule, appeals may be taken only from final judgments. DeAyala v. Mackie,

193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.

2001)). However, probate proceedings present an exception to the one final judgment rule. Id. In

such cases, multiple judgments final for purposes of appeal can be rendered on certain discrete

issues. Id. This rule has been justified by the need to review controlling, intermediate decisions

before an error can harm later phases in the proceeding. Id. “Not every interlocutory order in a



1
 Appellant William McDonald Riddick, appellee Cynthia Riddick Marmolejo, appellee Warren Pretlow Riddick, and
appellee Patricia Riddick Nathan are siblings and will be referred to collectively as “the Riddick siblings.” Appellee
William P. Riddick, who is a settlor and a trustee of some of the trusts, is the father of the Riddick siblings.

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probate case is appealable, however, and determining whether an otherwise interlocutory probate

order is final enough to qualify for appeal, has proved difficult.” Id. The Texas Supreme Court has

stated the test for making this determination as follows:

       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.

Id. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). Under this test, an order

that “does not end a phase of the proceedings, but sets the stage for the resolution of all

proceedings” is interlocutory. Id. at 579.

       Here, there is no express statute declaring the type of order challenged in this appeal to be

final and appealable. Thus, to determine whether the dismissal order in this case is final and

appealable, we must determine (1) if there is a proceeding of which the order may logically be

considered a part, and (2) if one or more pleadings also part of that proceeding raise issues or

parties that have not been disposed of. See id. at 578. To make this determination, we examine the

live pleadings contained in the record.

       In their first amended petition, the appellees sought a declaration from the probate court

regarding the terms of the trust agreements, a request for injunctive relief, and a request for

modification of the trusts. Specifically, the appellees sought declarations concerning the manner

in which successor trustees were to be appointed or selected under the trust agreements. The

appellees also sought to modify the trust agreements to add provisions allowing for the removal of

a trustee by a majority vote of the adult beneficiaries. Finally, the appellees sought an injunction

to preclude the appellant from interfering with their fiduciary duties as trustees. In his first

amended counterclaim, the appellant sought a declaration that the trusts were void. Additionally,


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the appellant sought to modify the trusts for which he was a beneficiary so he could serve as his

own trustee, or to terminate the same trusts and have the assets in these trusts distributed.

       The pleadings in this case show that the initial lawsuit and the counterclaim address a set

of disputes that have arisen in the administration and operation of the same trusts. Furthermore,

the dismissal order in this case may logically be considered part of this proceeding. Because some

of the issues raised in this proceeding are still pending, we conclude that the dismissal order in this

case is interlocutory. See Pollard v. Pollard, 285 S.W.3d 149, 152 (Tex. App.—Dallas 2009, no

pet.) (concluding that an order refusing to vacate the dismissal of unsecured claims against the

estate was not a final, appealable probate order when a counterclaim alleging conversion of estate

assets remained pending).

       The appellant nevertheless argues the dismissal order is final and appealable. According to

the appellant, the dismissal order is final and appealable because orders finding that a party lacks

standing have been held to be final and appealable, and the dismissal order in this case is similar

to those orders. We disagree. In each of the cases cited by appellant, the probate court not only

found that a party lacked standing, but also disposed of a phase of the proceedings. See Atkins

Rosin v. Berco & Leja Rosin Trust, No. 04-08-00601-CV, 2009 WL 1956386, at *2 (Tex. App.—

San Antonio 2009, pet. denied) (holding that once the trial court found that the minor plaintiffs

lacked standing to bring a will contest, all issues in that phase of the proceeding had been disposed

by the trial court, and the order was final and appealable); A & W Industries, Inc. v. Day, 977

S.W.2d 738, 740 (Tex. App.—Fort Worth 1998, no pet.) (holding that an order determining the

parties lacked standing to bring a motion to remove co-executors disposed of all the issues in that

phase of the proceeding and was final and appealable); see also Womble v. Atkins, 331 S.W.2d

294, 298 (Tex. 1960) (“A judgment of no interest [in the estate] and consequent dismissal of an

application for probate, or contest of, a will is in no sense interlocutory.”).
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        The appellant further argues the dismissal order is final and appealable because it “disposes

of all issues regarding the counterclaim.” However, as shown above, the test does not require us

to determine whether all issues and parties raised in the counterclaim have been disposed of;

instead, the test requires us to determine if all of the issues and parties raised in this proceeding

have been disposed of. See DeAyala, 193 S.W.3d at 578. Finally, the appellant argues the dismissal

order is final and appealable because he could have brought his counterclaim independently. This

may be true. But the fact remains that the appellant’s counterclaim was not raised in a separate

lawsuit; it was raised in the context of the appellees’ lawsuit. Moreover, the appellees’ lawsuit and

the appellant’s counterclaim address issues pertaining to the administration and operation of the

same trusts.

                                           CONCLUSION

        Because the dismissal order is interlocutory, and there is no express statute authorizing

an appeal from this type of interlocutory order, we conclude that we lack jurisdiction over this

appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West 2008) (specifying appealable

interlocutory orders). We therefore grant the appellees’ motion to dismiss, and dismiss this appeal

for lack of jurisdiction.

                                                      Karen Angelini, Justice




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