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In re Estate of Willett, 211 S.W.3d 364 (Tex. App.—San Antonio 2006, no pet. h.).

Estate Administration

Appeal

Partial Summary Judgment

The appellate court held that it lacked jurisdiction to hear an appeal of a partial summary judgment.  Probate Code § 5(g) provides that “final orders” may be appealed.  The Texas Supreme Court in Crowson v. Wakeham, 897 S.W.3d 779 (Tex. 1995), set forth the following test to determine whether an order is final:

If there is an express statute, such as the one for the complete heirship judgment, 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.

There is no statute declaring a trial court’s partial summary judgment to be final and appealable.  Likewise, by its very terms, the partial summary judgment did not dispose of certain issues in the case.  Thus, the trial court’s partial summary judgment was not appealable.

Moral:  A partial summary judgment is not an appealable final order.  If an appeal is desired, the court may make the judgment final by a severance order, assuming it meets the criteria for severance.

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