                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-384-CV


NYAGUDI O. OKUMU                                                 APPELLANT

                                        V.

WELLS FARGO BANK, N.A.                                             APPELLEE

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             FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellee Wells Fargo Bank, N.A. moves to dismiss this appeal for want

of jurisdiction, asserting that the order Appellant Nyagudi O. Okumu attempts

to appeal is not a final order and is not subject to appeal. We agree, and we

dismiss this appeal for want of jurisdiction.




      1
           See Tex. R. App. P. 47.4.
                                 II. Background

      Okumu is attempting to appeal from an order of sale made by the probate

court in the administration of the estate of Erma Lee Bays. Wells Fargo, the

estate’s temporary administrator, filed an application to sell real and personal

property on September 15, 2009.              Citation was issued by posting on

September 16, 2009. See Tex. Prob. Code Ann. § 344 (Vernon Supp. 2009)

(stating that service of citation on an application for sale “shall be by posting”).

      Okumu states that he was served with the application for the sale of real

and personal property by certified mail on September 16, 2009, but that he

received no notice of a hearing on the application. However, such notice was

not required since Okumu missed his deadline to file an opposition to the sale.

See Tex. Prob. Code Ann. § 345A(a)–(b) (Vernon Supp. 2009) (stating that the

court “shall hold a hearing on an application if an opposition to the sale is filed

during the period provided in the citation”; a hearing is not required if no

opposition is filed during the period provided in the citation).

      The probate court entered the order of sale on September 28, 2009.

Okumu claims that he learned of the order on October 5, 2009, and filed a

motion to vacate the order that day. 2 He filed an amended motion to vacate on



      2
       In his October 5 motion to vacate, Okumu complained that he believed
he had twenty days from the date of service of the application to file a

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October 22, 2009, the day after Wells Fargo filed a report of sale of personal

property. This attempted appeal followed.

                                 III. Discussion

      Generally, an appeal may be taken only from a final judgment, and

typically, a judgment is not final for purposes of appeal unless the judgment

disposes of all pending parties and claims in the record. Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). However, one of the exceptions to

this general rule exists in probate cases. See De Ayala v. Mackie, 193 S.W.3d

575, 578 (Tex. 2006); Crowson v. Wakeham, 897 S.W.2d 779, 781 (Tex.

1995).

      The probate code provides that a final order issued by a probate court is

appealable to the court of appeals. See Tex. Prob. Code Ann. § 4A(c) (Vernon

Supp. 2009) (formerly probate code section 5(g)). Probate proceedings consist

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

at various points in the administration of an estate on which later decisions will

be based. Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000,



response or opposition to the application and that he went to the clerk’s office
on October 1, 2009, to file his opposition. In his amended motion to vacate,
Okumu explained that he believed that he would receive notice when the clerk’s
citation issued. He complained that he did not receive the citation “even
though the Applicant knew he was an interested party.” However, as noted
above, section 344 specifically states that service of citation is by posting.

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pet. denied). Therefore, there are exceptions to the “one final judgment” rule

for these cases because of the need to review controlling, intermediate

decisions before an error can harm later phases of the proceeding. Id.

      To determine whether an order is final under the probate code, and

therefore appealable, the supreme court has promulgated the following test:

      If there is an express statute . . . 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, 897 S.W.2d at 783; see also De Ayala, 193 S.W.3d at 578. To

apply either part of the Crowson test, we must first identify the phase of the

probate proceeding at issue. See In re Estate of Wilson, No. 02-06-00075-CV,

2006 WL 2986566, at *2 (Tex. App.—Fort Worth Oct. 19, 2006, no pet.).

      Here, Okumu is attempting to appeal the probate court’s September 28,

2009 “Order of Sale of Real and Personal Property”—an order authorizing the

sale of a house and all of its contents. Therefore, this phase involves the sale

of estate property.   See, e.g., Tex. Prob. Code Ann. § 346 (Vernon Supp.

2009) (“Order of Sale”).




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     Wells Fargo refers us to probate code section 355 and In re Estate of

Bendtsen, 229 S.W.3d 845 (Tex. App.—Dallas 2007, no pet.), to support its

argument that the order from which Okumu attempts to appeal is interlocutory.

Section 355, entitled “Action of Court on Report of Sale,” states:

     [a]fter the expiration of five days from the filing of a report of sale,
     the court shall inquire into the manner in which the sale was made,
     hear evidence in support of or against such report, and determine
     the sufficiency or insufficiency of the representative’s general
     bond, if any has been required and given; and, if he is satisfied that
     the sale was for a fair price, was properly made and in conformity
     with law, and has approved any increased or additional bond which
     may have been found necessary to protect the estate, the court
     shall enter a decree confirming such sale, showing conformity with
     the foregoing provisions of the Code, and authorizing the
     conveyance of the property to be made by the representative of the
     estate upon compliance by the purchaser with the terms of the
     sale, detailing such terms. If the court is not satisfied that the sale
     was for a fair price, was properly made, and in conformity with
     law, an order shall be made setting the same aside and ordering a
     new sale to be made, if necessary. The action of the court in
     confirming or disapproving a report of sale shall have the force and
     effect of a final judgment; and any person interested in the estate
     or in the sale shall have the right to have such decrees reviewed as
     in other final judgments in probate proceedings.

Tex. Prob. Code Ann. § 355 (Vernon 2003) (emphasis added).               Estate of

Bendsten involved alleged beneficiaries under a competing will attempting to

appeal, as here, a probate court order authorizing the sale of the decedent’s

residence.   229 S.W.3d at 846–47.          The court held that section 355

specifically defined finality for purposes of appeal, such that the order



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authorizing sale was only an interlocutory probate court order, and it dismissed

the appeal for want of jurisdiction. Id. at 848 (describing the steps involved in

the sales phase of estate administration as the application to authorize sale;

order authorizing sale; report of sale; inquiry by the court into the manner of

sale; and decree of confirmation of the sale by the court).

        In response, Okumu directs us to Vineyard v. Irvin, 855 S.W.2d 208

(Tex. App.—Corpus Christi 1993, orig. proceeding). In Vineyard, a bank applied

for an order of public sale of an estate’s real property—property against which

it had a deed of trust that it had reduced to judgment. Id. at 209. The court

concluded that the order of sale was more like a foreclosure judgment than a

writ of execution. Id. at 210. It then decided that although title would not

pass without both order and confirmation, the decision to allow a judicial sale

and the manner of sale “are conclusively decided by the order of sale,” and that

the subsequent confirmation hearing and order merely address the fairness of

the price and conformity of the sale to the law and provisions of the order of

sale.   Id. at 210–11.   Because the confirmation hearing would not reopen

questions decided in the order of sale “or amount to further hearings on the

issues decided by that order,” the court concluded that the order of sale was

a separately appealable final order under the probate code. Id. at 211.




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      As noted by the Bendsten court, the legislature has created a

comprehensive statutory scheme to govern this phase of the proceedings. See

Bendsten, 229 S.W.3d at 848; see generally Tex. Prob. Code Ann.

§§ 331–358 (Vernon 2003) (entitled “Chapter VIII, Proceedings During

Administration, Part 5. Sales”). Part 5 of Chapter VIII of the probate code

covers everything involved in the sale of estate property, from the necessity of

a court order for most sales, the specific types of property (personal property,

mortgaged property, real property, easements) that can be sold, the required

contents of the application to sell, the items to be specified in the order of sale,

public and private sale requirements, and the contents for the report following

sale, to the action of the court on the report of sale, which is treated as a final

judgment.    Because of this section’s comprehensive nature, we cannot

conclude, as Okumu requests, that the order he complains of is final and

appealable. To the contrary, the language in part 5 and the reasoning presented

in Bendsten persuade us that the order at issue here is interlocutory and

unappealable.

      Additionally, Vineyard, which sets out the “substantial right” test,

preceded Crowson—and we are not convinced that the rule cited by Okumu

remains good law in light of the test set out in Crowson. Compare Vineyard,

855 S.W.2d at 210 (“In other words, a probate order is appealable if it finally

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adjudicates a substantial right; on the other hand, if it merely leads to further

hearings on the issue, it is interlocutory.”), with De Ayala, 193 S.W.3d at 578

(acknowledging that courts had relied on the “substantial right” test in the past

and that because that test was ambiguous, the supreme court formulated the

Crowson test), and In re Guardianship of Murphy, 1 S.W.3d 171, 173 (Tex.

App.—Fort Worth 1999, no pet.) (“[W]e question whether the ‘adjudication of

a substantial right’ inquiry is still viable post-Crowson.”). Therefore, we grant

Wells Fargo’s motion and dismiss the appeal for want of jurisdiction. 3




                                            PER CURIAM

PANEL: MCCOY, LIVINGSTON, and MEIER, JJ.

DELIVERED: January 7, 2010




      3
        We express no opinion with regard to whether a petition for writ of
mandamus would be appropriate here. Cf. In re Wilcox, No. 09-08-00131-CV,
2008 WL 2917148, at *1–3 (Tex. App.—Beaumont July 31, 2008, orig.
proceeding) (mem. op.) (conditionally granting mandamus relief to compel trial
court to vacate its order to sell and distribute proceeds of some of estate’s real
property; the trial court’s order had granted the real party in interest’s motion
for partial distribution); In re Burgess, No. 05-06-00517-CV, 2006 WL
1000300, at *1 (Tex. App.—Dallas Apr. 18, 2006, orig. proceeding) (mem.
op.) (denying petitions for writs of mandamus and of prohibition because
relators, in complaining that the probate judge erred by approving an application
for authority to sell real property, failed to show that the judge clearly abused
his discretion).

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