In the Estate of Horace Jimerson, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 11, 2024
• Docket: 02-23-00443-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00443-CV ___________________________

IN THE ESTATE OF HORACE JIMERSON, JR., DECEASED

On Appeal from Probate Court No. 2 Tarrant County, Texas Trial Court No. 2021-PR00100-2

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Appellant O.V. Dickson—a contestant in this probate proceeding—attempts

to appeal from the trial court’s order granting Appellee Sheila Porter Wolf’s motion to

compel discovery responses and ordering Dickson to respond without objection to

certain discovery requests and to pay Wolf $1,208.33 in attorney’s fees. We wrote to

Dickson expressing our concern that we lacked jurisdiction over this appeal because

the order did not appear to be a final judgment or appealable interlocutory order. See

De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (op. on reh’g) (explaining when

probate orders are appealable). We warned Dickson that unless he or any other party

desiring to continue the appeal filed a response within ten days showing grounds for

continuing the appeal, we could dismiss the appeal for want of jurisdiction. See Tex. R.

App. P. 42.3(a), 44.3. Ten days have passed, and we have not received a response.

Generally, appeals may be taken only from final judgments or from

interlocutory orders as authorized by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001). A judgment or order is final if it disposes of every pending claim

and party. Id. at 205. Probate proceedings are an exception to the one-final-judgment

rule because they may involve multiple orders on discrete issues, each of which may

be final for purposes of appeal. De Ayala, 193 S.W.3d at 578. But not all interlocutory

probate orders are appealable. Id. The Texas Supreme Court has adopted the

following test for determining whether a probate order is final for purposes of appeal:

2 If there is an express statute . . . 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.

Id. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). In other words, if

no statute expressly provides that a particular probate order is final and appealable,

that order is interlocutory and not subject to immediate appeal unless it disposes of all

parties or issues in a particular phase of the proceedings. See id. at 578–79; see also Est.

of Harris, No. 02-17-00108-CV, 2017 WL 2590574, at *2 (Tex. App.—Fort Worth

June 15, 2017, pet. denied) (per curiam) (mem. op.).

No statute expressly authorizes an immediate appeal from an order granting a

motion to compel discovery. Additionally, the order does not dispose of all parties or

issues in a particular phase of this probate proceeding. See In re Est. of Ruiz, No. 04-22-

00650-CV, 2023 WL 242735, at *2 (Tex. App.—San Antonio Jan. 18, 2023, no pet.)

(mem. op.) (“The [probate court’s] order denying Ruiz’s motion to compel discovery

and the order granting Harmon’s motion for protection from discovery subpoenas do

not dispose of any substantive issue, let alone dispose of ‘all issues’ in the phase of the

proceedings concerning the partnership; therefore, the orders are interlocutory.”

(quoting De Ayala, 193 S.W.3d at 578)). We thus conclude that the order is not a final,

appealable probate order. See De Ayala, 193 S.W.3d at 578–79; Harris,

3 2017 WL 2590574, at *2. Accordingly, we dismiss this appeal for want of jurisdiction.

See Tex. R. App. P. 42.3(a), 43.2(f).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: January 11, 2024