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Ayala v. Mackie, 49 Tex. Sup. Ct. J. 539 (2006).

I.          Estate Administration

A.         Appellate Jurisdiction

County court at law admitted a foreign will to probate and granted ancillary letters testamentary.  Executrix then sued Heir claiming that she and other heirs wrongfully appropriated over $60 million in estate assets.  Heirs moved to dismiss Executrix’s action asserting that the county court at law had no subject matter jurisdiction.  The court denied the motion and Heir appealed.  The lower appellate court began its analysis by holding that the county court at law’s order was final for the purposes of appeal citing the landmark Texas case of Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995).  Ayala v. Brittingham, 131 S.W.3d 3 (Tex. App.—San Antonio 2003).  The Supreme Court of Texas reversed.

The court agreed with Executrix that the county court’s order was merely interlocutory and hence unappealable because numerous pleadings and issues were still pending in the county court at law.  The court pointed out that the appealing parties did not seek a severance order as the court had urged in its Crowson opinion.  In addition, “[b]ecause an order denying a plea to the jurisdiction and refusing to remove an executor does not end a phase of the proceedings, but sets the stage for the resolution of all proceedings, the order is interlocutory.”  The court also rejected an argument that Civil Practice & Remedies Code § 51.014(a)(2) permits an interlocutory appeal.

Moral:  A party appealing a lower court’s probate order must make certain the order is appealable.  If in doubt, the party wishing to appeal should take some action such as seeking a severance order or asking the court for a permissive interlocutory appeal.

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