Mary Melinda Palacio AKA Melinda Palacio Dependent for the Estate of Luicio A. Palacio v. Paul Palacio and Mary Ann Palacio

• Court: Court of Appeals of Texas
• Decided: April 24, 2019
• Docket: 05-18-00357-CV
• Status: Published

Opinion

DISMISS and Opinion Filed April 24, 2019

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-18-00357-CV

MARY MELINDA PALACIO AKA MELINDA PALACIO DEPENDENT EXECUTRIX FOR THE ESTATE OF LUICIO A. PALACIO, DECEASED, Appellant V. PAUL PALACIO AND MARY ANN PALACIO, Appellees

On Appeal from the Probate Court No 2 Bexar County, Texas Trial Court Cause No. 2016-PC-2950

MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Whitehill

Because there is no appealable judgment in this case, we dismiss this appeal for lack of

appellate jurisdiction.

A few months before his death, Lucio Palacio1 allegedly signed a bank form adding

appellees to a checking account as joint owners and making the account a joint account with right

of survivorship. After Palacio died, his estate’s executrix (appellant) sued appellees and asserted,

among other things, that Palacio lacked capacity to execute the form.

1 Although Palacio’s first name is spelled “Luicio” in appellant’s trial-court pleadings’ style, and thus in our style, the record otherwise consistently shows that his first name was “Lucio.” Appellees counterclaimed for declaratory judgment and attorneys’ fees. They filed a

traditional summary judgment motion seeking judgment on the entire case and a separate no-

evidence summary judgment seeking judgment on appellant’s claims. The trial judge granted the

motions by separate orders. However, in the order granting the traditional motion the trial judge

struck out the provisions addressing appellees’ attorneys’ fees. Although the order contains a

Mother Hubbard clause, it does not purport to rule on appellees’ fee claims. See Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 203–04 (Tex. 2001) (defining “Mother Hubbard clause” and holding

that such a clause does not suffice to make a summary judgment final). Appellant then brought

this appeal.

We notified the parties that the record did not appear to contain a final, appealable

judgment, and we invited them to submit jurisdictional letter briefs within ten days. No letter

briefs were filed.

Generally, appeals may be taken only from final judgments. De Ayala v. Mackie, 193

S.W.3d 575, 578 (Tex. 2006). Probate cases are an exception to this rule. Id. In such cases,

multiple judgments that are final for appellate purposes can be rendered on certain discrete issues.

Id. An interlocutory order on a discrete issue is appealable if either (i) a statute expressly declares

that the particular phase of the proceeding is final and appealable or (ii) the order disposes of all

parties or issues for which the particular phase of the proceeding was brought. Id.; In re Barrera,

No. 05-17-00774-CV, 2017 WL 3614145, at *1 (Tex. App.—Dallas Aug. 23, 2017, no pet.) (mem.

op.).

We have found no statute on point. And because appellees’ claims for attorneys’ fees

remain pending, the summary judgment orders do not dispose of all parties and issues in this phase

of the probate case. Thus, there is no appealable order. See Youngblood & Assocs., P.L.L.C. v.

–2– Duhon, 57 S.W.3d 63, 65–66 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (lingering claim for

attorney’s fees prevented summary judgment from being final and appealable).

We dismiss the appeal. See TEX. R. APP. P. 42.3(a), (c).

/Bill Whitehill/ BILL WHITEHILL JUSTICE

180357F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARY MELINDA PALACIO AKA On Appeal from the Probate Court No 2, MELINDA PALACIO DEPENDENT Bexar County, Texas EXECUTRIX FOR THE ESTATE OF Trial Court Cause No. 2016-PC-2950. LUICIO A. PALACIO, DECEASED, Opinion delivered by Justice Whitehill. Appellant Justices Partida-Kipness and Pedersen, III participating. No. 05-18-00357-CV V.

PAUL PALACIO AND MARY ANN PALACIO, Appellees

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

It is ORDERED that appellees Paul Palacio and Mary Ann Palacio recover their costs of this appeal from appellant Mary Melinda Palacio AKA Melinda Palacio Dependent Executrix for the Estate of Luicio A. Palacio, Deceased.

Judgment entered April 24, 2019.

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