                                  NO. 12-18-00269-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 IN THE MATTER OF THE                             §       APPEAL FROM THE

 ESTATE OF ROY GENE BROWN,                        §       COUNTY COURT AT LAW

 DECEASED                                         §       RUSK COUNTY, TEXAS

                                  MEMORANDUM OPINION
                                      PER CURIAM
       In September 2017, Virginia Brown filed an application to probate the August 30, 2017,
will of Roy Gene Brown, decedent. This will bequeathed all of Roy’s real property and estate to
Virginia. Appellant, Brandy Rae Williams, Roy’s granddaughter, filed an opposition to Virginia’s
application and stated that she is the sole devisee of a holographic will dated September 9, 2017.
She also filed a counter-application to probate the will. Robert R. Brown, Roy’s son, then filed a
cross-application to probate a will dated December 11, 2014. This will bequeathed all of Roy’s
real property and estate to Robert. He filed an objection to Virginia’s application and Williams’s
counter-application. Virginia filed an opposition to the applications filed by Williams and Robert.
       Robert subsequently filed a motion for summary judgment declaring nonprobate property.
This motion concerned only Roy’s Citizens National Bank account, the funds from which were
released to Robert on Roy’s death pursuant to a payable on death (P.O.D.) provision. Williams
filed a motion for summary judgment declaring the funds to be probate property. On July 2, 2018,
the trial court signed a letter determining that the funds passed to Robert under Section 113.152 of
the Texas Estates Code (ownership of P.O.D. account on death of party) and requested that
Robert’s counsel prepare a partial summary judgment order to that effect. On September 19,
Virginia filed a motion for reconsideration.
       On September 27, the trial court signed an order granting Robert’s summary judgment
motion and application for declaration and return of nonprobate property and denying Williams’s
summary judgment motion and application for declaration. The trial court declared that (1) the
funds in Roy’s account are nonprobate, nontestamentary assets that were subject to a complete and
unambiguous P.O.D. agreement naming Robert the sole P.O.D. beneficiary of the account; these
funds belong solely to Robert as the sole P.O.D. beneficiary, and (2) funds that Robert transferred
to the temporary administrator under court order for safe keeping were lawfully transferred to
Robert as P.O.D. beneficiary, are not part of Roy’s estate, and are not subject to diminishment or
use by the temporary administrator to satisfy any claims for debts, fees, and expenses by or against
the Estate. The order states that it is intended to be final and appealable only as to the declarations
and orders regarding the nonprobate property and does not resolve all disputed matters between
the parties.1
         On September 28, the trial court signed a letter stating that Virginia filed no timely
objection before the summary judgment deadline and asserted no pleadings, answer, or meritorious
defense. Thus, the trial court declined to reconsider its ruling. On October 4, Williams filed a
notice of appeal from the September 27 judgment. Virginia did not file a notice of appeal.
         On November 28, Williams filed a motion to dismiss the appeal on grounds that “all matters
in controversy relating to the appeal have been resolved.” In response, Virginia stated that only
Williams and Robert reached an agreement in mediation, but that she did not. According to
Virginia, the settlement agreement between Williams and Robert leaves her “without any
remaining claim to funds that would pass to her under her purported will if admitted to probate …
[t]he settlement has yet to be presented to the trial court for entry of an order authorizing
disbursement.” She asks this Court to abate the appeal to allow the trial court to review the partial
settlement agreement before entry of an order disbursing funds. In reply, Williams maintains that
she has a right to dismiss her appeal and Virginia failed to perfect an appeal from the proceedings
below.




         1 Some orders in probate proceedings are considered final and appealable. If there is an express statute
declaring a phase of a probate proceeding to be final and appealable, that statute controls. Crowson v. Wakeham, 897
S.W.2d 779, 783 (Tex. 1995). “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.; see Lehmann v. Har–Con Corp., 39 S.W.3d 192, 193 (Tex. 2001) (“We
consider only cases in which one final and appealable judgment can be rendered and not cases, like some probate and
receivership proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain discrete
issues”). Because Williams filed a motion to dismiss the appeal, which we grant, we need not decide if the order
appealed from is final and appealable under the Crowson test.


                                                          2
         In accordance with an appellant’s motion, an appellate court may dismiss the appeal or
affirm the appealed judgment or order unless such disposition would prevent a party from seeking
relief to which it would otherwise be entitled. TEX. R. APP. P. 42.1(a)(1). Virginia did not file a
notice of appeal in this case. See TEX. R. APP. P. 25.1(c) (“[a] party who seeks to alter the trial
court’s judgment or other appealable order must file a notice of appeal … appellate court may not
grant a party who does not file a notice of appeal more favorable relief than did the trial court
except for just cause”). Accordingly, if the appeal is dismissed, she will not be prevented from
seeking any appellate relief to which she would otherwise be entitled. See id.; see also Continental
Intermodal Group-South Tex., L.L.C. v. Garcia, No. 05-16-01102-CV, 2017 WL 1230592, at *1
(Tex. App.—Dallas Apr. 4, 2017, no pet.) (mem. op.) (granting appellants’ motion to dismiss
under Rule 42.1(a)(1) where appellees did not seek relief from the judgment on appeal); Clear
Lake City Water Auth. v. Friendswood Dev. Co., Ltd., 344 S.W.3d 514, 525 n.15 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (because Friendswood did not file a notice of appeal, it
was not entitled to any affirmative relief). We, therefore, grant Williams’s motion and dismiss
the appeal.
Opinion delivered December 21, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 21, 2018


                                         NO. 12-18-00269-CV


                             IN THE MATTER OF THE ESTATE
                             OF ROY GENE BROWN, DECEASED


                                Appeal from the County Court at Law
                            of Rusk County, Texas (Tr.Ct.No. 17-118P)

                    THIS CAUSE came on to be heard on the motion of the Appellant to dismiss
the appeal herein, and the same being considered, it is hereby ORDERED, ADJUDGED and
DECREED by this Court that the motion to dismiss be granted and the appeal be dismissed, and
that the decision be certified to the court below for observance.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
