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Young v. First Community Bank,
222 S.W.3d 454
(Tex. App.—Houston [1st Dist.] 2006, no pet. h.).
Estate
Administration
Appellate
Jurisdiction
Creditor petitioned to remove Executrix from office
alleging that she failed to file the inventory, appraisement, and list of claims
and sought attorney fees. The probate court did not remove Executrix but did
award Creditor attorney fees for its removal attempt. Executrix appealed.
The appellate court dismissed the appeal concluding that it
lacked jurisdiction. The court explained
Probate Code § 149C
under which Creditor received its attorney fees does not provide that an order
pursuant thereto is final and appealable. The court also indicated that
Executrix did not seek to severe the award of attorney’s fees and that the
probate court’s judgment did not dispose of all parties or issues in a
particular phase of the proceedings. Thus, consistent with the Texas Supreme
Court cases of De Ayala v.
Mackie, 193 S.W.3d 575
(Tex. 2006) and Crowson v.
Wakeham, 897 S.W.2d 779
(Tex. 1995), the court concluded that the award of attorney
fees was interlocutory and consequently not appealable.
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.
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