In the Estate of Barbara Jane Damron v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 23, 2023
• Docket: 10-23-00154-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00154-CV

IN THE ESTATE OF BARBARA JANE DAMRON

From the County Court at Law Coryell County, Texas Trial Court No. 21-10401

CONCURRENCE

This proceeding presents an interesting question. Which jurisdictional question

comes first, a final appealable order/judgment, or a timely notice of appeal? The Court

has done a nice job of reviewing the various rules and reasons that the notice of appeal

in this case is late. But the notice of appeal is late only if the order being appealed is a

final appealable order; otherwise, it is premature. The order at issue is set out in the

Court’s opinion. It lacks many of the indicia of finality recently discussed by this Court

and the dissent in Harden v. U.S. Bank, Nat'l Ass'n, No. 10-23-00043-CV, 2023 Tex. App.

LEXIS 5256 (Tex. App.—Waco July 19, 2023, no pet. h.). The procedural posture of the

pleadings and parties in this appeal is not described or discussed. In particular, the

procedural basis for the trial court to be rendering such an order is not apparent. Was it a plea to the jurisdiction, motion to dismiss under Rule of Civil Procedure 91a, motion

for summary judgment, etc.? Moreover, there is no language that indicates if this was

the only or all of the issues pending against the three individuals identified in the order,

and whether other claims are pending against another party. For example, since this

appears to be a probate proceeding, maybe there is a claim against the personal

representative of the estate in a representative capacity. To me, based on what is here,

this appears to be nothing more than an interlocutory order which is not final for

purposes of appeal and is not the type of interlocutory order for which there is a statutory

or common law right of appeal. So, while the Court bases its opinion on an untimely

notice of appeal, I would hold the timeliness of the notice of appeal does not matter

because the order is not appealable at this time. Accordingly, while I have no particular

quarrel with the Court’s discussion of the timeliness of a notice of appeal in the abstract,

I respectfully do not join the Court’s opinion, but concur in the Court’s judgment which

dismisses the appeal for want of jurisdiction.

TOM GRAY Chief Justice

Concurrence delivered and filed August 23, 2023

In the Estate of Damron Page 2