White v. Pope

664 S.W.2d 105, 1983 Tex. App. LEXIS 4655
CourtCourt of Appeals of Texas
DecidedJune 23, 1983
Docket13-82-109-CV
StatusPublished
Cited by18 cases

This text of 664 S.W.2d 105 (White v. Pope) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Pope, 664 S.W.2d 105, 1983 Tex. App. LEXIS 4655 (Tex. Ct. App. 1983).

Opinion

OPINION

NYE, Chief Justice.

This is an appeal from an order of the County Court at Law 3 of Nueces County, sitting in Probate. Appellant, Bonnie M. White, is the administratrix of the estate of Jody Martin Parr, deceased. Appellee, attorney A.J. Pope, is a former legal counsel to the appellant as administratrix. The administration of this estate has been long and complicated. Three different trial judges have been involved.

In the course of, and as a result of, his service to the appellant administratrix, the appellee attorney filed claims against the estate totaling $90,000.00. All of these claims were allowed by the appellant in her capacity as administratrix and were eventually approved by the probate court. The orders approving such claims were entered in 1974, 1976 and 1978 are all final and unappealed. In fact, the appellant adminis-tratrix has not challenged the validity of the appellee’s claims. However, the appellant has apparently paid only a fraction of the total amount claimed by appellee, failing and refusing to pay the remainder.

In an effort to force payment, appellee made applications with the probate court for the sale of certain personal and real property alleged to be owned by the estate. See TEX.PROB.CODE ANN. §§ 334, 338 (Vernon 1980). In the first application, ap-pellee petitioned the court to order the sale of an unspecified number of shares of stock in Teledyne Corporation. Appellee’s second application was for the sale of four parcels of residential real estate located in the City of Corpus Christi. The appellant opposed the applications for reasons that included the following: 1) the administration was incomplete in that there were lacking final determinations as to the total amount of approved claims and proper classification of the same, and of the total funds available in the estate to pay such claims; and 2) the real property named in the appellee’s application was not the property of the estate, but belonged to the appellant individually.

After hearing arguments from the parties and apparently taking judicial notice of the contents of its files in the matter, the trial court entered its order commanding the appellant to liquidate immediately all shares of Teledyne Corporation held in the estate of Jody Martin Parr and to use the proceeds to satisfy, to the extent possible, the claims against the estate of appellee *107 and another attorney, Mike Westergren. The trial court further ordered the appellant to convey into the estate of Jody Martin Parr the four parcels of real estate described in the order and in appellee’s application.

At the outset, we must first determine whether this is an appealable order of the probate court. All “final orders” of the probate court are appealable to the Court of Appeals. TEX.PROB.CODE ANN. § 5(e) (Vernon 1980). A probate order is final if it finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceedings was brought. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210 (1960); Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex.Civ.App.— Houston [1st Dist.] 1980, writ ref’d n.r.e.); Parr v. White, 543 S.W.2d 445, 449 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r. e.); Cherry v. Reed, 512 S.W.2d 705, 706 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). In other words, “an order is appealable if it finally adjudicates some substantial right, whereas if it merely leads to further hearings on the issue, it is interlocutory.” Parr v. White, supra, at 449; Meek v. Hart, 611 S.W.2d 162, 163 (Tex.Civ. App.—El Paso 1981, no writ). An order may be final and appealable even though the decision does not fully and finally dispose of the entire probate proceeding. Kelly v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945); Mossler v. Johnson, 565 S.W.2d 952, 954 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.); Cherry v. Reed, supra.

In the case before us, the trial court’s order purports to divest the adminis-tratrix of her title to real property. In addition, it commands her to liquidate an asset of the estate and pay the proceeds to the appellee. As far as these commands are concerned, the order is conclusive and it adjudicates substantial rights. No further hearing on these matters is called for. Therefore, we conclude that the trial court’s order was final and therefore appealable.

Turning to the merits of this appeal, appellant’s first complaint is of the trial court’s failure to file findings of fact and conclusions of law. The record discloses that the trial court did fail to file requested findings of fact and conclusions of law, despite the timely request and remainder as required by TEX.R.CIV.P. 296 and 297. Having just determined that the trial court’s order is final and appealable, we must next determine whether the failure of the trial court to comply with appellant’s timely request for fact-findings and conclusions of law is error that would cause a reversal of this case. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944); Fine v. Scott, 592 S.W.2d 56 (Tex.Civ.App.—Eastland 1979, writ ref’d n.r.e.). This is the type of error that may be corrected by the trial court by specific remand and instructions. It should not be made the sole basis for a reversal. TEX.R.CIV.P. 434; Labar v. Cox, 635 S.W.2d 801, 803 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.); McShan v. Pitts, 538 S.W.2d 266 (Tex.Civ.App.—San Antonio 1976, no writ). Our review of the record leads us to conclude that a remand solely for the purpose of compelling the trial court to file findings of fact and conclusions of law would serve no useful purpose in this appeal, as we shall presently see.

Appellant’s main complaint is that the trial court’s order appealed from divests her of real property without a proper determination of title. We are forced to agree with this contention. There was no testimony taken at the hearing in the court below, and there were no exhibits introduced. The only basis for equitable ownership of the property in question in the estate is contained in the transcript before this Court which shows an inventory filed by the appellant and approved by the probate court which lists the real property in question as an asset of the estate. It is true that the trial court could take judicial notice of this item in its file.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

the Estate of Leah Rita Tillotson
Court of Appeals of Texas, 2022
in the Estate of Rickey Ray Allen
Court of Appeals of Texas, 2020
in the Estate of Robert Jerry Brazda
Court of Appeals of Texas, 2019
in the Matter of the Estate of Arletta Turner
Court of Appeals of Texas, 2014
Riley v. Riley
972 S.W.2d 149 (Court of Appeals of Texas, 1998)
Brooks v. Housing Authority of the City of El Paso
926 S.W.2d 316 (Court of Appeals of Texas, 1996)
Crowson v. Wakeham
897 S.W.2d 779 (Texas Supreme Court, 1995)
Vineyard v. Irvin
855 S.W.2d 208 (Court of Appeals of Texas, 1993)
Nelkin v. Panzer
833 S.W.2d 267 (Court of Appeals of Texas, 1992)
Huston v. Federal Deposit Insurance Corp.
800 S.W.2d 845 (Texas Supreme Court, 1990)
In Re Estate of Lewis
749 S.W.2d 927 (Court of Appeals of Texas, 1988)
Goodwin v. Kent
745 S.W.2d 466 (Court of Appeals of Texas, 1988)
Anzaldua v. Anzaldua
742 S.W.2d 782 (Court of Appeals of Texas, 1987)
Christensen v. Harkins
740 S.W.2d 69 (Court of Appeals of Texas, 1987)
Joseph v. Joseph
731 S.W.2d 597 (Court of Appeals of Texas, 1987)
Kay v. Sandler
718 S.W.2d 872 (Court of Appeals of Texas, 1986)
Estate of Wright
676 S.W.2d 161 (Court of Appeals of Texas, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
664 S.W.2d 105, 1983 Tex. App. LEXIS 4655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-pope-texapp-1983.