Dismiss and Opinion Filed February 16, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00829-CV
TIZIANA COSENTINO, Appellant V. FROST BANK, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF BRIAN M. ELLARD, DECEASED, Appellee
On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-20-00485-2
MEMORANDUM OPINION Before Justice Molberg, Justice Goldstein, and Justice Smith Opinion by Justice Molberg This is an appeal from an order compelling an ancillary probate matter to
arbitration. By motion and in jurisdictional briefing, appellee asserts the appeal
should be dismissed for want of jurisdiction because the arbitration order is neither
an interlocutory order authorized by statute to be appealed nor an appealable final
judgment under the general standard, see Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001), or standard for probate orders, see Crowson v. Wakeham, 897
S.W.2d 779, 783 (Tex. 1995). In response, appellant does not dispute the order is
not an appealable interlocutory order. She maintains, however, that the order is
appealable and final under either Lehmann, because the order “reduced” the probate court’s role “to nothing but the ministerial act of approving” the arbitration award,
or Crowson, because it ended the underlying ancillary proceeding.1 Agreeing with
appellee that the order is not final, we grant the motion and dismiss the appeal. See
TEX. R. APP. P. 42.3(a).
BACKGROUND
On June 30, 2019, Ornella Ellard and her husband perished in a private jet
crash. During the administration of Ellard’s and her husband’s estates, a dispute
arose concerning a premarital agreement (“PMA”) that limited Ellard’s interest in
her husband’s estate. The dispute centered on whether the PMA had been finalized
and an agreement existed at all, as the PMA had been signed in its entirety by Ellard
but it appeared her husband had failed to sign in certain designated places.
Seeking, in part, a declaration that the PMA was invalid because it did not
contain all necessary signatures, Ellard’s estate filed the proceeding underlying this
appeal as an ancillary proceeding to the estate. Appellee, the independent
administrator of Ellard’s husband’s estate, counterclaimed and appellant, Ellard’s
sister and sole heir, intervened. In her petition in intervention, appellant asserted the
same argument as Ellard’s estate and, in the event the probate court determined the
PMA was “sufficiently” executed and an agreement “existed[,]” that Ellard and her
husband did not intend to be bound by the PMA.
1 Appellant also argues the order is final under Crowson because the order adjudicated a substantive right. –2– A fully executed PMA was subsequently located, and Ellard’s estate
nonsuited its action. Asserting the fully executed PMA was not authentic or,
alternatively, had been revoked, appellant proceeded on her claim. Appellee also
proceeded on its counterclaim.
The PMA included a provision requiring that “any dispute or controversy
regarding [the PMA’s] validity, interpretation, or enforceability” be submitted to
binding arbitration before an arbitrator who would serve as a special master under
the rules of civil procedure and whose award could be “set forth” in a judgment
entered in “any court of competent jurisdiction.” See TEX. R. CIV. P. 171 (master in
chancery). On appellee’s motion and following a Tipps evidentiary hearing,2 the
probate court ordered the matter to arbitration.
DISCUSSION
An appellate court has jurisdiction over appeals from interlocutory orders as
authorized by statute as well as final judgments. Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 272 (Tex. 1992). Generally, a judgment is final if it (1) follows a
conventional trial on the merits; (2) actually disposes of every pending party and
claim; or, (3) “clearly and unequivocally” states it finally disposes of all parties and
2 See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (concluding that trial court must hold evidentiary hearing to determine whether to compel arbitration, rather than summarily rule, where material facts necessary to determination are controverted); see also TEX. CIV. PRAC. & REM. CODE ANN. § 171.021(b) (if party opposing motion to compel arbitration denies existence of agreement, court must summarily determine that issue); Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 119 (Tex. App.—El Paso 2018, no pet.) (trial court decides threshold issue of whether contract ever formed). –3– claims even if it does not actually do so. See Lehmann, 39 S.W.3d at 199, 205-06.
In probate proceedings, however, a judgment may be final for purposes of appeal
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 v. Mackie, 193 S.W.3d 575, 578 (Tex.
2006) (quoting Crowson, 897 S.W.2d at 782-83). To determine whether the
judgment adjudicates a substantial right and disposes of all issues and parties in a
particular proceeding, an appellate court examines the parties’ live pleadings and
may consider whether the adjudicated claim could be properly severable. See id.;
Crowson, 897 S.W.3d at 783. A claim is properly severable if the controversy
involves more than one cause of action; the severed claim could be the proper subject
of an independently asserted lawsuit; and, the severed claim “is not so interwoven
with the remaining action that they involve the same facts and issues.” Guar. Fed.
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Although
Lehmann differs from Crowson “as to when an order becomes final and
appealable[—]upon the conclusion of a discrete phase of a [probate] proceeding or
with rendition of a single final judgment[,]” an order that actually disposes of all
issues and parties at the relevant stage of the proceedings is final under both
standards. In re Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021) (emphasis
in original).
–4– Appellant’s contention that the order compelling arbitration is final and
appealable under both Lehmann and Crowson is premised on the probate court’s
implied ruling that the PMA was properly executed and an agreement “existed.”3
Appellant notes that without a finding that the PMA, which contained the arbitration
provision, was finalized, the probate court could not compel the matter to arbitration.
See TEX. FAM. CODE ANN. § 4.002 (requiring premarital agreement be signed by
both parties); In re W. Dairy Transp., L.L.C., 574 S.W.3d 537, 546 (Tex. App.—El
Paso 2019, orig. proceeding) (arbitration cannot be ordered absent binding
agreement) (citing Freis v.
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Dismiss and Opinion Filed February 16, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00829-CV
TIZIANA COSENTINO, Appellant V. FROST BANK, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF BRIAN M. ELLARD, DECEASED, Appellee
On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-20-00485-2
MEMORANDUM OPINION Before Justice Molberg, Justice Goldstein, and Justice Smith Opinion by Justice Molberg This is an appeal from an order compelling an ancillary probate matter to
arbitration. By motion and in jurisdictional briefing, appellee asserts the appeal
should be dismissed for want of jurisdiction because the arbitration order is neither
an interlocutory order authorized by statute to be appealed nor an appealable final
judgment under the general standard, see Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001), or standard for probate orders, see Crowson v. Wakeham, 897
S.W.2d 779, 783 (Tex. 1995). In response, appellant does not dispute the order is
not an appealable interlocutory order. She maintains, however, that the order is
appealable and final under either Lehmann, because the order “reduced” the probate court’s role “to nothing but the ministerial act of approving” the arbitration award,
or Crowson, because it ended the underlying ancillary proceeding.1 Agreeing with
appellee that the order is not final, we grant the motion and dismiss the appeal. See
TEX. R. APP. P. 42.3(a).
BACKGROUND
On June 30, 2019, Ornella Ellard and her husband perished in a private jet
crash. During the administration of Ellard’s and her husband’s estates, a dispute
arose concerning a premarital agreement (“PMA”) that limited Ellard’s interest in
her husband’s estate. The dispute centered on whether the PMA had been finalized
and an agreement existed at all, as the PMA had been signed in its entirety by Ellard
but it appeared her husband had failed to sign in certain designated places.
Seeking, in part, a declaration that the PMA was invalid because it did not
contain all necessary signatures, Ellard’s estate filed the proceeding underlying this
appeal as an ancillary proceeding to the estate. Appellee, the independent
administrator of Ellard’s husband’s estate, counterclaimed and appellant, Ellard’s
sister and sole heir, intervened. In her petition in intervention, appellant asserted the
same argument as Ellard’s estate and, in the event the probate court determined the
PMA was “sufficiently” executed and an agreement “existed[,]” that Ellard and her
husband did not intend to be bound by the PMA.
1 Appellant also argues the order is final under Crowson because the order adjudicated a substantive right. –2– A fully executed PMA was subsequently located, and Ellard’s estate
nonsuited its action. Asserting the fully executed PMA was not authentic or,
alternatively, had been revoked, appellant proceeded on her claim. Appellee also
proceeded on its counterclaim.
The PMA included a provision requiring that “any dispute or controversy
regarding [the PMA’s] validity, interpretation, or enforceability” be submitted to
binding arbitration before an arbitrator who would serve as a special master under
the rules of civil procedure and whose award could be “set forth” in a judgment
entered in “any court of competent jurisdiction.” See TEX. R. CIV. P. 171 (master in
chancery). On appellee’s motion and following a Tipps evidentiary hearing,2 the
probate court ordered the matter to arbitration.
DISCUSSION
An appellate court has jurisdiction over appeals from interlocutory orders as
authorized by statute as well as final judgments. Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 272 (Tex. 1992). Generally, a judgment is final if it (1) follows a
conventional trial on the merits; (2) actually disposes of every pending party and
claim; or, (3) “clearly and unequivocally” states it finally disposes of all parties and
2 See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (concluding that trial court must hold evidentiary hearing to determine whether to compel arbitration, rather than summarily rule, where material facts necessary to determination are controverted); see also TEX. CIV. PRAC. & REM. CODE ANN. § 171.021(b) (if party opposing motion to compel arbitration denies existence of agreement, court must summarily determine that issue); Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 119 (Tex. App.—El Paso 2018, no pet.) (trial court decides threshold issue of whether contract ever formed). –3– claims even if it does not actually do so. See Lehmann, 39 S.W.3d at 199, 205-06.
In probate proceedings, however, a judgment may be final for purposes of appeal
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 v. Mackie, 193 S.W.3d 575, 578 (Tex.
2006) (quoting Crowson, 897 S.W.2d at 782-83). To determine whether the
judgment adjudicates a substantial right and disposes of all issues and parties in a
particular proceeding, an appellate court examines the parties’ live pleadings and
may consider whether the adjudicated claim could be properly severable. See id.;
Crowson, 897 S.W.3d at 783. A claim is properly severable if the controversy
involves more than one cause of action; the severed claim could be the proper subject
of an independently asserted lawsuit; and, the severed claim “is not so interwoven
with the remaining action that they involve the same facts and issues.” Guar. Fed.
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Although
Lehmann differs from Crowson “as to when an order becomes final and
appealable[—]upon the conclusion of a discrete phase of a [probate] proceeding or
with rendition of a single final judgment[,]” an order that actually disposes of all
issues and parties at the relevant stage of the proceedings is final under both
standards. In re Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021) (emphasis
in original).
–4– Appellant’s contention that the order compelling arbitration is final and
appealable under both Lehmann and Crowson is premised on the probate court’s
implied ruling that the PMA was properly executed and an agreement “existed.”3
Appellant notes that without a finding that the PMA, which contained the arbitration
provision, was finalized, the probate court could not compel the matter to arbitration.
See TEX. FAM. CODE ANN. § 4.002 (requiring premarital agreement be signed by
both parties); In re W. Dairy Transp., L.L.C., 574 S.W.3d 537, 546 (Tex. App.—El
Paso 2019, orig. proceeding) (arbitration cannot be ordered absent binding
agreement) (citing Freis v. Canales, 877 S.W2d 283, 284 (Tex. 1994) (per curiam)).
Appellant asserts the sole claim before the probate court in the ancillary proceeding,
was whether the PMA was finalized and an agreement existed; whether the PMA
was otherwise valid and enforceable became issues only if the PMA was properly
signed and were, under the arbitration provision, issues for the arbitrator to decide.
Once the court determined an agreement existed and compelled the matter to
arbitration, appellant argues, the ancillary proceeding was concluded. Appellant
maintains that, because the arbitrator’s decision is binding on the parties under the
3 As mentioned, appellant also argues the order is final under Crowson because it adjudicated a substantive right. The court’s implied ruling is also the premise for this argument. Appellant contends that, in determining the PMA was properly executed, the probate court not only determined that the underlying proceeding would “all go[] to arbitration[,]” but also that the PMA, rather than Texas community property laws, would inform what assets Ellard’s estate owned, resulting in a significant decrease in the value of the estate. See TEX. FAM. CODE ANN. § 3.003 (“Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.”). An order adjudicating a substantive right without also adjudicating all issues and parties in the phase of the proceeding for which the proceeding was brought, however, is not final under Crowson. See De Ayala, 193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 782-83). –5– PMA, the probate court’s remaining role, if any, is to confirm the arbitrator’s
decision, a ministerial act that renders the order final under Lehmann. Appellant
further maintains that because the order ended the “contract formation/existence”
phase of the ancillary proceeding, the order was final under Crowson.
In making these arguments, however, appellant misconstrues the applicable
standards. Whether an order disposes of every party and claim in a suit or disposes
of all issues and parties in the phase of the proceeding for which the proceeding was
brought is not determined by who effectuates the disposition or the extent of the
court’s role in the suit or proceeding but by language adjudicating the claim and
issues. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per
curiam) (appellate timetable begins to run upon signing of written order that disposes
of parties and issues before court, even when signing of order is “purely
ministerial”). And “phase of the proceeding for which the [proceeding] was
brought” refers to the basis for the proceeding—the claim(s) or cause(s) of action
asserted—not an issue within the claim(s) or action(s). See Crowson, 897 S.W.2d
at 783 (probate order rendered in proceeding in which “one or more pleadings . . .
raise issues or parties not disposed of” is interlocutory but can be made final by
severance order if severance criteria met); Guar. Fed. Sav. Bank, 793 S.W.2d at 658
(claim is properly severable if controversy involves more than one cause of action,
severed claim could be independently asserted in separate lawsuit, and severed claim
and remaining action do not involve same facts and issues); MICHOL O’CONNOR,
–6– O’CONNOR’S TEXAS CAUSES OF ACTION, ch.1, § 1 (2022 ed.) (“A cause of action is
simply the basis for a lawsuit. . . . In ordinary legal usage, the term ‘cause of action’
is synonymous with ‘claim.’”).
Although appellant asserts the ancillary proceeding ended upon the probate
court’s determination that the PMA was properly executed and arbitration should be
compelled, it did not. As reflected in the parties’ live pleadings, the ancillary
proceeding was brought as a declaratory judgment action concerning the validity and
enforceability of the PMA. The order compelling arbitration determined a
preliminary issue within that cause of action—that the PMA was properly executed
such that an agreement to arbitrate existed and arbitration of those issues could be
compelled—not a cause of action in itself that could be asserted independently as its
own lawsuit. See Guar. Fed. Sav. Bank, 793 S.W.2d at 658; see also In re Gulf
Expl., LLC, 289 S.W.3d 836, 842 (Tex. 2009) (order compelling arbitration
reviewable on final appeal).
Because the arbitration order is not final under Lehmann or Crowson, we grant
appellee’s motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a).
/Ken Molberg// 210829f.p05 KEN MOLBERG JUSTICE
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TIZIANA COSENTINO, Appellant On Appeal from the Probate Court No. 2, Dallas County, Texas No. 05-21-00829-CV V. Trial Court Cause No. PR-20-00485- 2. FROST BANK, AS INDEPENDENT Opinion delivered by Justice ADMINISTRATOR OF THE Molberg, Justice Goldstein and ESTATE OF BRIAN M. ELLARD, Justice Smith participating. DECEASED, Appellee
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee Frost Bank, as Independent Administrator of the Estate of Brian M. Ellard, Deceased, recover its costs, if any, of this appeal from appellant Tiziana Cosentino.
Judgment entered this 16th day of February, 2022.
–8–