Pine v. deBlieux, 405 S.W.3d 140 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
In a prior opinion, the appellate court determined that the administratrix was unsuitable as a matter of law. The executrix sought review by the Supreme Court of Texas which denied her petition. The appellate court then issued its mandate. However, in the interim, the trial court rendered a final judgment disposing of some of the decedent’s assets.
When the trial court’s action was brought to the attention of the appellate court, the court held that the trial court should not have rendered a final judgment while the unsuitable administratrix was still in office. Accordingly, the court reversed the trial court’s determination of the proper recipient of certain of the decedent’s assets.
The court recognized that Probate Code § 28 (now Estates Code § 351.053) allows the administratrix to continue to act and that Texas Rule of Appellate Procedure 18.6 provides that an interlocutory order takes effect when the mandate is issued. However, the court explained that the administratrix acted at her own peril when she continued to make claims to estate property hoping that the Supreme Court of Texas would grant her petition and then find in her favor.
Moral: In the gap period between the appellate court’s opinion and the court’s issuance of its mandate, a final judgment of a trial court is likely to be set aside if it is in conflict with the opinion and mandate.