VACATE and DISMISS and Opinion Filed November 14, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00257-CV
IN THE ESTATE OF VICTORIA GOSWAMI, DECEASED
On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-17-02806-2
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein This appeal challenges the probate court’s December 20, 2022 judgment
granting appellee’s application to determine heirship and determining appellee to be
decedent’s husband and heir. Because the probate court lacked plenary power over
the heirship proceeding at the time it signed the judgment, we vacate the judgment
as void and dismiss the appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484,
486 (Tex. 1995) (per curiam). Due to the multidimensional nature of the probate
proceedings, we provide context to this determination. BACKGROUND
The appealed judgment was signed during the administration of decedent’s
estate, which, without a determination of whether appellee and decedent were
married at the time of decedent’s death and whether any of decedent’s property was
community property, cannot close. As reflected in the record, the underlying case
began in August 2017 when appellee, believing decedent had died intestate, filed an
application for independent administration. The application asserted appellee was
decedent’s husband.
Denying decedent was married at the time of her death, decedent’s mother
contested the application, and in December 2017, on the application of one of
decedent’s sisters, the probate court appointed a temporary administrator. Two
months later, appellee filed his heirship application, which was subsequently
amended, asserting again that he was decedent’s husband.
Appellee’s application was contested by appellant, one of decedent’s brothers,
who filed a counter-application to determine heirship in May 2018.1 The probate
court held a hearing on the competing applications in November 2018, and in
January 2019, signed an order denying appellant’s application. The record reflects
no order on appellee’s heirship application was signed. In January 2020, after
decedent’s will, naming appellant as the sole beneficiary of the estate, had been
1 Appellant filed the counter-application jointly with decedent’s mother. Decedent’s mother is not a party to this appeal. –2– located, the court signed an order to “abate ruling on the Application to Determine
Heirship and the Amended Motion for Entry of Final Judgment of the Estate of
VICTORIA GOSWAMI, DECEASED until the conclusion of the will contest.”
Following a contested hearing, the will was admitted to probate in September
2020.2 On April 16, 2021, asserting the probate court could no longer proceed on
appellee’s pending heirship application “in light of the administration of the Will to
probate,” appellant filed a motion to dismiss the application. The motion was
combined with a petition for a declaratory judgment seeking a declaration that
decedent and appellee were never married. On October 4, 2021, the probate court
granted the motion and dismissed appellee’s heirship application. The court,
however, did not rule on the declaratory judgment petition, leaving the issue of
whether decedent was married at the time of her death unresolved. No motion for
new trial or reconsideration was filed challenging the dismissal of appellee’s
heirship application, and the administration of decedent’s estate continued.
The probate court’s docket sheet reflects the court held scheduling
conferences on November 4 and December 7, 2022. On December 8, 2022, appellee
filed an affidavit in support of his heirship application, and two weeks later, the
probate court signed the appealed judgment. The judgment recites that it
“memorializes” the court’s ruling following the November 2018 hearing and that the
2 The order admitting the will to probate also appointed the temporary administrator as the dependent administrator after the independent executor named in the will declined to serve. –3– October 2021 order dismissing appellee’s heirship application “was improvidently
granted.” The judgment also vacates the order, reinstates the application, and finds
and concludes appellee and decedent were married at the time of decedent’s death,
appellee and decedent’s mother and siblings are decedent’s statutory heirs, and that,
because decedent died with a will, the “judgment . . . only affect[s] the
characterization of property and spousal rights, and any resulting intestacy, if any,
from the dispositive provisions of the will.”
DISCUSSION
It is well-settled that a trial court’s plenary power over a final judgment, that
is, a judgment that disposes of all parties and claims, generally expires thirty days
after the judgment is signed unless a motion for new trial or to modify judgment is
timely filed. See TEX. R. CIV. P. 306a(1), 329b(d)(e); Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001). It is also well-settled that action taken outside a
trial court’s plenary power is void. See State ex rel. Latty v. Owens, 907 S.W.2d
484, 486 (Tex. 1995) (per curiam).
Although generally only one final judgment may be rendered in a cause,
probate cases are an exception. See TEX. R. CIV. P. 301; De Ayala v. Mackie, 193
S.W.3d 575, 578 (Tex. 2006). Because probate cases generally consist of a
continuing series of events, and decisions made later in the proceedings may be
based on decisions made earlier in the proceedings, controlling, intermediate
decisions may be deemed final and appealable to prevent “harm” in later
–4– proceedings. See De Ayala, 193 S.W.3d at 578; Logan v. McDaniel, 21 S.W.3d 683,
688 (Tex. App.—Austin 2000, pet. denied). A judgment in a probate proceeding is
deemed final even when other issues remain pending if a statute expressly declares
the phase of the probate proceeding to be final and appealable or the judgment
adjudicates a substantial right and disposes of all issues and parties “in the phase of
the proceeding for which it was brought.” See De Ayala, 193 S.W.3d at 578 (quoting
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)).
Because section 202.202 of the estates code declares a judgment in an heirship
proceeding to be final, and the October 2021 order dismissing appellee’s application
disposed of the last claim in the heirship proceeding, it appeared the October 2021
order was final and triggered the running of the probate court’s plenary power over
it. See TEX. EST. CODE ANN. § 202.202; TEX. R. CIV. P. 329b(d). And because no
motion for new trial or for reconsideration was filed, it appeared the probate court’s
plenary power over the heirship proceeding expired thirty days later, and the
appealed judgment, signed well over a year after the court’s plenary power expired,
was void. See TEX. R. CIV. P. 329b(d); Latty, 907 S.W.2d at 486.
Because an appellate court lacks jurisdiction over the merits of an appeal from
a void judgment, and may only vacate the judgment and dismiss the appeal, we
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VACATE and DISMISS and Opinion Filed November 14, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00257-CV
IN THE ESTATE OF VICTORIA GOSWAMI, DECEASED
On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-17-02806-2
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein This appeal challenges the probate court’s December 20, 2022 judgment
granting appellee’s application to determine heirship and determining appellee to be
decedent’s husband and heir. Because the probate court lacked plenary power over
the heirship proceeding at the time it signed the judgment, we vacate the judgment
as void and dismiss the appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484,
486 (Tex. 1995) (per curiam). Due to the multidimensional nature of the probate
proceedings, we provide context to this determination. BACKGROUND
The appealed judgment was signed during the administration of decedent’s
estate, which, without a determination of whether appellee and decedent were
married at the time of decedent’s death and whether any of decedent’s property was
community property, cannot close. As reflected in the record, the underlying case
began in August 2017 when appellee, believing decedent had died intestate, filed an
application for independent administration. The application asserted appellee was
decedent’s husband.
Denying decedent was married at the time of her death, decedent’s mother
contested the application, and in December 2017, on the application of one of
decedent’s sisters, the probate court appointed a temporary administrator. Two
months later, appellee filed his heirship application, which was subsequently
amended, asserting again that he was decedent’s husband.
Appellee’s application was contested by appellant, one of decedent’s brothers,
who filed a counter-application to determine heirship in May 2018.1 The probate
court held a hearing on the competing applications in November 2018, and in
January 2019, signed an order denying appellant’s application. The record reflects
no order on appellee’s heirship application was signed. In January 2020, after
decedent’s will, naming appellant as the sole beneficiary of the estate, had been
1 Appellant filed the counter-application jointly with decedent’s mother. Decedent’s mother is not a party to this appeal. –2– located, the court signed an order to “abate ruling on the Application to Determine
Heirship and the Amended Motion for Entry of Final Judgment of the Estate of
VICTORIA GOSWAMI, DECEASED until the conclusion of the will contest.”
Following a contested hearing, the will was admitted to probate in September
2020.2 On April 16, 2021, asserting the probate court could no longer proceed on
appellee’s pending heirship application “in light of the administration of the Will to
probate,” appellant filed a motion to dismiss the application. The motion was
combined with a petition for a declaratory judgment seeking a declaration that
decedent and appellee were never married. On October 4, 2021, the probate court
granted the motion and dismissed appellee’s heirship application. The court,
however, did not rule on the declaratory judgment petition, leaving the issue of
whether decedent was married at the time of her death unresolved. No motion for
new trial or reconsideration was filed challenging the dismissal of appellee’s
heirship application, and the administration of decedent’s estate continued.
The probate court’s docket sheet reflects the court held scheduling
conferences on November 4 and December 7, 2022. On December 8, 2022, appellee
filed an affidavit in support of his heirship application, and two weeks later, the
probate court signed the appealed judgment. The judgment recites that it
“memorializes” the court’s ruling following the November 2018 hearing and that the
2 The order admitting the will to probate also appointed the temporary administrator as the dependent administrator after the independent executor named in the will declined to serve. –3– October 2021 order dismissing appellee’s heirship application “was improvidently
granted.” The judgment also vacates the order, reinstates the application, and finds
and concludes appellee and decedent were married at the time of decedent’s death,
appellee and decedent’s mother and siblings are decedent’s statutory heirs, and that,
because decedent died with a will, the “judgment . . . only affect[s] the
characterization of property and spousal rights, and any resulting intestacy, if any,
from the dispositive provisions of the will.”
DISCUSSION
It is well-settled that a trial court’s plenary power over a final judgment, that
is, a judgment that disposes of all parties and claims, generally expires thirty days
after the judgment is signed unless a motion for new trial or to modify judgment is
timely filed. See TEX. R. CIV. P. 306a(1), 329b(d)(e); Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001). It is also well-settled that action taken outside a
trial court’s plenary power is void. See State ex rel. Latty v. Owens, 907 S.W.2d
484, 486 (Tex. 1995) (per curiam).
Although generally only one final judgment may be rendered in a cause,
probate cases are an exception. See TEX. R. CIV. P. 301; De Ayala v. Mackie, 193
S.W.3d 575, 578 (Tex. 2006). Because probate cases generally consist of a
continuing series of events, and decisions made later in the proceedings may be
based on decisions made earlier in the proceedings, controlling, intermediate
decisions may be deemed final and appealable to prevent “harm” in later
–4– proceedings. See De Ayala, 193 S.W.3d at 578; Logan v. McDaniel, 21 S.W.3d 683,
688 (Tex. App.—Austin 2000, pet. denied). A judgment in a probate proceeding is
deemed final even when other issues remain pending if a statute expressly declares
the phase of the probate proceeding to be final and appealable or the judgment
adjudicates a substantial right and disposes of all issues and parties “in the phase of
the proceeding for which it was brought.” See De Ayala, 193 S.W.3d at 578 (quoting
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)).
Because section 202.202 of the estates code declares a judgment in an heirship
proceeding to be final, and the October 2021 order dismissing appellee’s application
disposed of the last claim in the heirship proceeding, it appeared the October 2021
order was final and triggered the running of the probate court’s plenary power over
it. See TEX. EST. CODE ANN. § 202.202; TEX. R. CIV. P. 329b(d). And because no
motion for new trial or for reconsideration was filed, it appeared the probate court’s
plenary power over the heirship proceeding expired thirty days later, and the
appealed judgment, signed well over a year after the court’s plenary power expired,
was void. See TEX. R. CIV. P. 329b(d); Latty, 907 S.W.2d at 486.
Because an appellate court lacks jurisdiction over the merits of an appeal from
a void judgment, and may only vacate the judgment and dismiss the appeal, we
questioned our jurisdiction over the appeal. See Freedom Commc’ns, Inc. v.
Coronado, 372 S.W.2d 621, 623 (Tex. 2012) (per curiam); Latty, 907 S.W.2d at 486.
In jurisdictional briefing filed at our request, appellant does not dispute the judgment
–5– is void because it was signed outside the probate court’s plenary power3 and should
be vacated.4 Accordingly, because the probate court’s plenary power over the
heirship proceeding had expired when the judgment was signed, we vacate the
judgment as void and dismiss the appeal.5 See id.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN 230257F.P05 JUSTICE
3 Appellant asserts a second reason the judgment is void. Citing section 202.002 of the estates code, he argues the judgment is void because decedent’s will was admitted to probate. Although a proceeding to declare heirship is generally filed when a person dies intestate, an heirship proceeding may also be filed when, as here, a will has been probated but no final disposition of the property has been made in the administration. See TEX. EST. CODE § 202.002(1), (2)(B). 4 Appellee, though given an opportunity, did not respond to appellant’s jurisdictional brief. 5 This leaves intact the court’s January 2019 order denying appellant’s application and the October 2021 order dismissing appellee’s application and leaves the issue of whether appellee and decedent were married at the time of decedent’s death to be determined by appellant’s pending petition for declaratory judgment. See Latty, 907 S.W.2d at 486. –6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE ESTATE OF VICTORIA On Appeal from the Probate Court GOSWAMI, DECEASED No. 2, Dallas County, Texas Trial Court Cause No. PR-17-02806- No. 05-23-00257-CV 2. Opinion delivered by Justice Goldstein, Justices Garcia and Miskel participating.
In accordance with this Court’s opinion of this date, we VACATE the probate court’s December 20, 2022 judgment and DISMISS the appeal.
We ORDER that appellee Eduardo Renteria recover his costs, if any, of this appeal from appellant Martino Rivaplata.
Judgment entered November 14, 2023.
–7–