                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00400-CV


ESTATE OF DAVID RICHARD
TACKE, DECEASED




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          FROM THE COUNTY COURT AT LAW OF HOOD COUNTY
                     TRIAL COURT NO. P06982

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                        MEMORANDUM OPINION1

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      Appellants Larry Swingle (Larry) and Sandra Swingle (Sandra), as

Independent Co-Executors of the Estate of David Richard Tacke (collectively, the

co-executors), attempt to appeal from the trial court’s order granting Appellee

Roger Tacke’s (Roger) motion for partial summary judgment. Roger has filed a


      1
      See Tex. R. App. P. 47.4.
motion to dismiss the appeal for want of jurisdiction, claiming that the trial court’s

order granting his motion for partial summary judgment is interlocutory.

Alternatively, Roger asks us to dismiss the appeal on the ground that the co-

executors’ notice of appeal is defective. For the reasons set forth below, we will

grant the motion to dismiss the appeal for want of jurisdiction.

                                    Background

      David Richard Tacke (the decedent) died on January 19, 2012, and was

survived by three children, David Richard Tacke II a/k/a David Christian (David,

Jr.), Roger, and Sandra.      The decedent’s will was admitted to probate on

February 8, 2012, and Sandra and her husband Larry were appointed as

independent co-executors of the decedent’s estate. The decedent’s will provided

that after the decedent’s personal effects were distributed equally to David, Jr.,

Roger, and Sandra and all debts, expenses, and death taxes were paid, the

residuary estate was to be distributed as follows:         (1) thirty-five percent to

Sandra; (2) thirty percent to David, Jr.; and (3) thirty-five percent to Roger. The

will specifically provided that Roger’s share of the residuary estate would include

the decedent’s interest in a ranch located in Tolar, Hood County, Texas, and all

of the decedent’s interest in a promissory note dated July 31, 2001, in the original

principal amount of $279,056 given to the decedent by Roger and his wife in

partial payment for the purchase of a one-half interest in the ranch from the

decedent.



                                          2
      The co-executors conveyed the decedent’s interest in the ranch to Roger

in October 2012.      In August 2013, the co-executors made a partial cash

distribution of $3,000,000 from the estate to Sandra, David, Jr., and Roger, with

Sandra receiving $1,470,000, David, Jr. receiving $1,260,000, and Roger

receiving $270,000. In calculating Roger’s share of the cash distribution, the co-

executors valued the decedent’s interest in the ranch at $1,200,000.2 Roger

contended the interest should have been valued at $780,000.3

      In December 2013, Roger filed a motion to remove the co-executors. See

Tex. Est. Code Ann. § 404.0035(b) (West 2014). Roger alleged the co-executors

breached their fiduciary duties of loyalty and competency by (1) failing and

refusing to use the $780,000 valuation when calculating the beneficiaries’ shares

of the residuary estate, which deprived him of his full thirty-five percent share and

increased Sandra’s and David, Jr.’s shares; (2) making distributions to a

nonbeneficiary of cash and personal property; (3) distributing assets to


      2
       An appraiser hired by the co-executors determined that the fair market
value of the ranch was $2,400,000 as of the decedent’s date of death.
      3
        The co-executors hired another appraiser to determine the extent to which
the value of the decedent’s interest in the ranch could be properly discounted to
minimize the estate’s tax liability. This appraiser determined that a undivided
interest discount of thirty-five percent was proper because as of the date of his
death, the decedent owned fifty percent of the ranch and the ranch’s condition
“limit[ed] an undivided interest owner’s ability or right to partition his part out of
the whole.” Thus, the co-executors reported the value of the decedent’s interest
in the ranch as $780,000 on the inventory, appraisement, and list of claims filed
for the estate and on the Form 706 United States Estate (and Generation-
Skipping Transfer) Tax Return filed with the Internal Revenue Service.

                                          3
themselves and selling the remainder of the assets without permitting the other

beneficiaries the opportunity to select assets for their share of the personal

property division; (4) failing to properly maintain the ranch prior to conveying it to

Roger; (5) failing to properly insure estate property; and (6) using estate assets

to pay personal legal fees. Roger further alleged that the co-executors were

incapable of performing their fiduciary duties because of material conflicts of

interest and hostility towards Roger.

      In July 2014, the co-executors filed a petition for declaratory judgment and

judicial discharge, seeking (1) a declaration that the $1,200,000 undiscounted fair

market value of the decedent’s interest in the ranch should be used in calculating

Roger’s share of the residuary estate rather than the $780,000 discounted value

used for federal estate tax purposes and (2) an order from the court discharging

them from any liability involving matters related to their past administration of the

estate that had been fully and fairly disclosed.        See Tex. Est. Code Ann.

§ 405.003 (West 2014); see also Tex. Civ. Prac. & Rem. Code Ann.

§§ 37.004(a), .005(2), (3) (West 2015).

      Roger and the co-executors filed cross-motions for partial summary

judgment seeking a determination of the value of the decedent’s interest in the

ranch to be used in calculating each beneficiary’s share of the residuary estate.

The trial court signed an order on December 3, 2014, granting Roger’s motion

and ordering that the value of the decedent’s interest to be used “in calculating

the pro rata distribution of the respective shares of the residuary of the

                                          4
[estate] . . . to the beneficiaries” was $780,000. In a letter dated December 4,

2014, the trial court denied the co-executors’ motion.

      On December 22, 2014, the co-executors filed a notice of appeal

challenging the order granting Roger’s motion for summary judgment. The co-

executors amended their notice of appeal on January 27, 2015, to include a

challenge to the trial court’s December 4, 2014 letter ruling denying their motion

for summary judgment.

                                 Applicable Law

      The general rule, with a few mostly statutory exceptions, is that an appeal

may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001). Typically, a judgment is not final for purposes of appeal

unless the judgment disposes of all pending parties and claims in the record. Id.

However, one of the statutory exceptions to this general rule exists in probate

cases. See Tex. Est. Code Ann. § 32.001(c) (West 2014); De Ayala v. Mackie,

193 S.W.3d 575, 578 (Tex. 2006); Crowson v. Wakeham, 897 S.W.2d 779, 781

(Tex. 1995). Section 32.001(c) of the estates code provides that “[a] final order

issued by a probate court is appealable to the court of appeals.” Tex. Est. Code

Ann. § 32.001(c). Probate proceedings inherently 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, pet. denied). The need

to review controlling, intermediate decisions before an error can harm later

                                         5
phases of the proceeding justifies modifying the one final judgment rule with

respect to probate cases. Id. To determine whether an order is final under

section 32.001(c) 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 (reaffirming

the Crowson test for finality).   An order that merely sets the stage for the

resolution of proceedings is interlocutory and not appealable. De Ayala, 193

S.W.3d at 579; In re Estate of Scott, 364 S.W.3d 926, 927 (Tex. App.—Dallas

2012, no pet.).

                                   Application

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

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

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

op.). Roger contends that the partial summary judgment was rendered as part of

the proceeding on his motion to remove the co-executors. The co-executors

contend that the partial summary judgment was rendered as part of the

proceeding on their request for declaratory judgment, not as part of the

proceedings on Roger’s removal action or their request for judicial discharge.

                                        6
Roger responds that the declaratory judgment action is not a discrete phase of

the probate proceeding because it is not separate and apart from the co-

executors’ request for judicial discharge.

      We agree with Roger that the declaratory judgment is not a separate

proceeding from the co-executors’ request for judicial discharge. A declaratory

judgment action is the statutorily prescribed procedure for an independent

executor to seek a judicial discharge for its past administrative actions. See Tex.

Est. Code Ann. § 405.003(a). Estates code section 405.003, entitled “Judicial

Discharge of an Independent Executor,” provides in pertinent part as follows:

      (a) After an estate has been administered and if there is no further
      need for an independent administration of the estate, the
      independent executor of the estate may file an action for declaratory
      judgment under Chapter 37, Civil Practice and Remedies Code,
      seeking to discharge the independent executor from any liability
      involving matters relating to the past administration of the estate that
      have been fully and fairly disclosed.

      ....

      (d) On or before filing an action under this section, the independent
      executor must distribute to the beneficiaries of the estate any of the
      remaining assets or property of the estate that remains in the
      independent executor’s possession after all of the estate’s debts
      have been paid, except for a reasonable reserve of assets that the
      independent executor may retain in a fiduciary capacity pending
      court approval of the final account. The court may review the
      amount of assets on reserve and may order the independent
      executor to make further distributions under this section.

Id. § 405.003(a), (d).   Concurrent with the filing of their request for judicial

discharge, except for a reasonable reserve of assets, the co-executors

distributed the estate’s remaining assets to the beneficiaries. In their request for

                                         7
judicial discharge, the co-executors stated that prior to distributing the reserve,

the court needed to resolve Roger’s complaints about the co-executors’

administration of the estate, as well as the value of the decedent’s interest in the

ranch so that the co-executors could calculate how much of the reserve to

distribute to Roger to satisfy his share of the residuary estate. A determination of

the value of the decedent’s interest in the ranch was essential to the resolution of

Roger’s complaints regarding the administration of the estate and to the trial

court’s determination of whether to discharge the co-executors’ from liability

involving matters relating to the past administration of the estate and its decision

to order the co-executors to make further distributions to Roger from the reserve

of assets. Thus, we conclude that the declaratory judgment action was a part of

the judicial discharge proceeding and not a separate phase of the probate

proceeding.    We further conclude that the partial summary judgment may

logically be considered part of both the proceeding on the removal action and the

judicial discharge action because it resolved the issue regarding the value of the

decedent’s interest in the ranch, an issue that is part of both proceedings.

       Roger and the co-executors agree—and we agree—that there is no

statute declaring the partial summary judgment at issue here to be final and

appealable. Accordingly, it is necessary that we move on to the second part of

the Crowson test and inquire into whether one or more of the pleadings that is

part of the removal action and the judicial discharge action raises issues or



                                         8
parties not disposed of by the trial court’s order. See Crowson, 897 S.W.2d at

783.

       As outlined above, Roger sought to remove the co-executors on numerous

grounds, including improper distributions based upon the $1,200,000 valuation of

the ranch. The summary judgment did not address any of Roger’s other grounds

for removal nor did it remove the co-executors.4 Thus, it is interlocutory. See

Young v. First Cmty. Bank, N.A., 222 S.W.3d 454, 459 (Tex. App—Houston [1st

Dist.] 2006, no pet.) (holding order in removal action awarding attorney’s fees but

not removing independent executor was interlocutory because the relief granted

constituted only partial disposition of the requested relief); cf. In re Estate of

Washington, 262 S.W.3d 903, 905 (Tex. App.—Texarkana 2008, no pet.)

(“Appeal of an order removing an estate administrator is proper because the

order brings to a conclusion a discrete phase of the probate proceeding.”). The

partial summary judgment also did not dispose of the co-executors’ request for

judicial discharge as the co-executor’s request remains outstanding. Therefore,

it is interlocutory in that phase of the probate proceedings as well.

       Because both the removal motion and the motion for judicial discharge

raise issues not disposed of by the partial summary judgment, we hold that,

under the Crowson test, the partial summary judgment order is interlocutory. We


       4
       At the time Roger filed his motion to dismiss the appeal, his motion to
remove the co-executors was set for hearing on February 17, 2015. The trial
court has informed us that the hearing did not take place.

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therefore grant Roger’s motion to dismiss and dismiss the appeal for want of

jurisdiction.5 See Tex. R. App. P. 42.3(a), 43.2(f).



                                                       /s/ Anne Gardner
                                                       ANNE GARDNER
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER, and WALKER, JJ.

DELIVERED: April 2, 2015




      5
        Roger also asked us to dismiss the appeal because the co-executors’
December 22, 2014 notice of appeal did not name all of the parties to the judicial
discharge proceeding and the co-executors failed to serve those parties with the
notice of appeal. See Tex. R. App. P. 25.1(d)(5) (requiring the notice of appeal
to state the name of each party filing the notice), (e) (requiring the notice of
appeal to be served on all parties to the trial court’s final judgment), 42.3(c)
(allowing an appellate court to dismiss an appeal for appellant’s failure to comply
with the rules of appellate procedure). We dismiss Roger’s alternative grounds
for dismissal as moot.
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