       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-19-00532-CV


                                      Paul Bethany, Appellant

                                                  v.

  Stephen Charles Bethany, Executor of the Estate of Mildred Louise Bethany, Appellee


              FROM COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
            NO. 10303, THE HONORABLE BARBARA MOLINA, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Appellant Paul Bethany appeals from the trial court’s judgment denying his

motion to remove appellee Stephen Charles Bethany as independent executor of the estate of

Mildred Louise Bethany, their mother.1 Stephen has filed a motion to dismiss the appeal for

want of jurisdiction, arguing that the trial court’s judgment is not final. We agree and will

dismiss the appeal for want of jurisdiction.

                 On May 29, 2018, Stephen admitted to probate Mildred’s Last Will and

Testament. In the will, Mildred had appointed Stephen as the independent executor of her estate

upon the death of Mildred’s husband, who had predeceased her. Mildred had appointed Paul as

successor independent executor if, for whatever reason, Stephen became unable to serve.

                 On April 11, 2019, Paul filed a motion to remove Stephen as independent

executor. Paul also moved for costs and expenses incurred by him incident to removal, including

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           Because the parties share the same surname, we will refer to them using their first names.
reasonable attorney’s fees. In his response to the motion, Stephen similarly moved for costs and

expenses in defending against removal, including reasonable attorney’s fees. Following a hearing,

the trial court denied Paul’s motion and ordered that Stephen be continued as executor. In its

written judgment denying relief, the trial court did not address the issue of attorney’s fees.

               In his motion to dismiss, Stephen asserts that we lack jurisdiction over this appeal

because the trial court’s judgment is not a final order. Stephen argues that there are claims that

remain pending, including his claim for attorney’s fees. Paul asserts in response that “there are

no further issues or parties not disposed of” by the trial court’s judgment. However, Paul does

not address the issue of attorney’s fees.

               “Generally, appeals may be taken only from final judgments.” Brittingham-Sada

de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001)). “Probate proceedings are an exception to the ‘one final

judgment’ rule; in such cases, ‘multiple judgments final for purposes of appeal can be rendered

on certain discrete issues.’” Id. (quoting Lehmann, 39 S.W.3d at 192). However, “[n]ot every

interlocutory order in a probate case is appealable.” Id. The test is whether the order “dispose[s]

of all parties or issues in a particular phase of the probate proceedings.” Id.

               This phase of the probate proceedings involved Paul’s motion to remove Stephen

as independent executor. That motion and Stephen’s response to the motion included claims for

costs and expenses, including reasonable attorney’s fees, incident to the removal proceedings.

See Tex. Estates Code § 404.0037(a) (authorizing recovery of costs and expenses incurred by

independent executor defending against removal), (b) (authorizing recovery of costs and expenses

incurred by party seeking removal). However, the trial court’s written judgment did not dispose

of those claims or address them in any manner. It is well established that an order that does not

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dispose of all pending claims, including attorney’s fees, is not a final order. See Farm Bureau

County Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 164 (Tex. 2015); McNally v. Guevara,

52 S.W.3d 195, 195 (Tex. 2001) (per curiam); In re Estate of Rhoades, No. 02-15-00081-CV,

2015 Tex. App. LEXIS 5945, *6 (Tex. App.—Fort Worth June 11, 2015, no pet.) (mem. op.);

Haluska v. Haluska-Rausch, No. 03-11-00312-CV, 2012 Tex. App. LEXIS 744, *6–7 (Tex.

App.—Austin Jan. 24, 2012, no pet.) (mem. op.); see also Melton v. CU Members Mortg.,

586 S.W.3d 26, 36 (Tex. App.—Austin 2019, pet. denied) (concluding that “the remaining issue

of attorney’s fees” rendered judgment interlocutory rather than final). Accordingly, we grant

Stephen’s motion to dismiss the appeal and dismiss the appeal for want of jurisdiction. We

dismiss as moot Stephen’s motion for extension of time to file his appellee’s brief.



                                             __________________________________________
                                             Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Baker and Triana

Dismissed for Want of Jurisdiction

Filed: March 20, 2020




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