in Re: Estate of Margaret Virginia Fears

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00139-CV ______________________________ IN RE: ESTATE OF MARGARET VIRGINIA FEARS, DECEASED On Appeal from the County Court at Law No. 1 Gregg County, Texas Trial Court No. 2003-0097-P Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION This appeal challenges an order transferring venue of a pending probate matter from Gregg County to Rusk County. Appellee, Bob Ballard, moves to dismiss the appeal for want of jurisdiction. After considering the matter on full briefing from both sides, we grant Ballard's motion. The sole question before us on this motion is whether a venue determination in a probate proceeding is immediately appealable. The Texas Probate Code states simply that "final orders" may be appealed. Tex. Prob. Code Ann. § 5 (Vernon 2003 & Supp. 2004). The Texas Probate Code, however, contains neither a definition of a "final order" nor any provision specifically addressing appealability of a venue order. The leading authority concerning appeals in probate proceedings, generally, is Crowson v. Wakeham, 897 S.W.2d 779, 782 (Tex. 1995). In that case, the court recognized that a final order of a court that exercises original probate jurisdiction is appealable. See Tex. Prob. Code Ann. §§ 5(f), 606(f) (Vernon Supp. 2004). The court also held an order need not fully dispose of the entire proceeding in order to be final and, thus, appealable. Instead, it instructed reviewing courts to apply the following test to determine whether the order is final and appealable: 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. For appellate purposes, it may be made final by a severance order, if it meets the severance criteria . . . . A severance order avoids ambiguities regarding whether the matter is appealable. Litigants can and should seek a severance order either with the judgment disposing of one party or group of parties, or seek severance as quickly as practicable after the judgment. Crowson, 897 S.W.2d at 783; see In re Guardianship of Murphy, 1 S.W.3d 171, 172 (Tex. App.—Fort Worth 1999) (orig. proceeding) (guardianship proceeding under Section 612); see also A & W Indus. v. Day, 977 S.W.2d 738, 740 (Tex. App.—Fort Worth 1998, no pet.). In accordance with Crowson, Ballard suggests we focus on whether the order is severable in determining whether it is sufficiently final to allow the appeal to continue. Attempting to support his argument, appellant makes every effort to distinguish the Murphy opinion cited above. In that case, the Fort Worth court applied the standard set out above and concluded that the transfer of a guardianship under the Texas Probate Code was not appealable because it did not dispose of any parties or issues in any particular phase of the guardianship, but "just changed the venue in which those issues and parties will be decided." Murphy, 1 S.W.3d at 172. Appellant correctly points out that the Fort Worth court relied in part on the general prohibition against appealing venue rulings in reaching its decision. That court, however, also relied on two prior decisions, Forlano v. Joyner, 906 S.W.2d 118 (Tex. App.—Houston [1st Dist.] 1995, no writ); and Grounds v. Lett, 718 S.W.2d 38 (Tex. App.—Dallas 1986, no writ). In both of those cases, the courts were asked to review rulings on motions to transfer venue. In both, the appeals were held improper. The appellate court in Forlano, finding no express statute and holding the order not appealable, noted that the transferred proceeding was part of a lawsuit for breach of contract—not the guardianship itself—and that there were issues not disposed of by the transfer. The court added that such a transfer order could never by itself be appealable because, unlike the partial summary judgment order in Crowson, a transfer order could not be subject, by its nature, to an order of severance. By definition, an order that does not resolve a "claim" at all cannot be severed from the main action. Forlano, 906 S.W.2d at 120. In Grounds, the Dallas court reviewed three orders of a probate court concerning venue and jurisdiction of the probate court in an action affecting title to land. The Dallas court concluded all were interlocutory and dismissed the appeal. The court applied the general rule that venue orders were interlocutory and noted that orders overruling pleas to the jurisdiction are also interlocutory. Citing Tex. State Bd. of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 243 (1961). The Dallas court quoted pre-Crowson caselaw that "an order is appealable if it adjudicates a substantial right as opposed to one leading to further hearings on the issue." Estate of Wright, 676 S.W.2d 161, 163 (Tex. App.—Corpus Christi 1984, writ ref'd n.r.e.). The Dallas court held that no order adjudicated the substantial rights of any party—further hearings would be necessary before adjudication of the disputed title—and thus no final, appealable, order was shown. An appeal may generally be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). That category also includes concluded matters that are severed, because those matters are then final. See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex. 2003). Accordingly, in typical cases, appellate courts have jurisdiction over appeals of interlocutory orders only if a statute explicitly allows it. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). Thus, in probate matters as in other situations, appeals can be properly taken only from final orders. A venue determination by a court, in civil cases generally, is expressly not subject to an interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002). Tex. R. Civ. P. 87 sets out the procedure to be followed in determining questions of venue, and concludes in subsection 6, "There shall be no interlocutory appeals from such determination." "The Texas Rules of Civil Procedure govern proceedings in probate matters except in those instances in which a specific provision has been made to the contrary. Tex. R. Civ. P. 2." Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); see In the Estate of Foster, 3 S.W.3d 49, 52 (Tex. App.—Amarillo 1999, no pet.). Section 6 of the Texas Probate Code, which specifies where venue lies for probate matters, contains no language about the appealability of such a determination. Tex. Prob. Code Ann. § 6 (Vernon 2003). In fact, there is no specific provision allowing an interlocutory appeal of a probate venue determination. Therefore, Tex. R. Civ. P. 87 requires us to dismiss the appeal. We dismiss the appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: January 21, 2004 Date Decided: January 22, 2004