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In re Estate of Brown

Court of Appeals of Texas, Sixth District, Texarkana

March 30, 2017

IN THE ESTATE OF JOE DAN BROWN, DECEASED

          Date Submitted: December 8, 2016

          On Appeal from the County Court Rusk County, Texas Trial Court No. 15-062P

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess Justice

         Joe Dan Brown passed away on March 11, 2009. His last will and testament left all of his property to his wife, Gail Larue Brown, and named her as independent executrix of his estate. On March 29, 2009, Gail signed an affidavit of heirship and election not to probate Brown's will, but filed an application to probate Brown's will six years after his death. Pointing to the election and the four-year statute of limitations to probate a will, Brown's only child, Joe Frank Brown, contested Gail's application and filed traditional and no-evidence motions for summary judgment. The trial court granted Joe's summary judgment motions and denied and dismissed Gail's application to probate Brown's will. Gail appeals.

         After carefully reviewing the appellate record in this matter, we conclude that we are without jurisdiction to hear Gail's appeal because the trial court had previously entered a final, appealable order in this case, and Gail did not timely appeal from that order.

         I. Procedural History

         On April 1, 2015, Gail filed "an Application to Probate Will and for Issuance of Letters Testamentary and Motion to Withdraw Election not to Probate" (the original application). Based on the four-year statute of limitations, [1] Joe filed traditional and no-evidence motions for summary judgment, and a hearing on those motions was set for December 15, 2015. On December 14, 2015, one day prior to the hearing on Joe's motions for summary judgment, Gail filed an amended application to probate the will as a muniment of title (the amended application).[2]

         The next day, at the hearing on Joe's motions for summary judgment, the trial court noted that the amended application had been filed and asked Joe if he was prepared to go forward in light of that pleading. Although he objected to the amended application as being untimely filed, Gail responded that she did not object to the trial court granting Joe's motions for summary judgment as to the original application so long as it did not operate to dismiss the case in its entirety. Gail asserted that because the amended application superseded the original application, and because the motions for summary judgment did not address the amended application, the trial court's order granting summary judgment should be limited to the original application only.

         With that understanding, the trial court granted Joe's motions for summary judgment as to the original application based on the statute of limitations. The trial court then directed Joe's attorney to prepare a proposed order granting Joe's motions for summary judgment as to the original application based on the expiration of the statute of limitations, to forward a copy to Gail's attorney for review, and then to forward the proposed order to the trial court for signature. Accordingly, by order dated January 26, 2016, the trial court granted Joe's no-evidence and traditional motions for summary judgment based on the four-year statute of limitations as to the original application. The January 2016 order granting summary judgment states:

IT IS THEREFORE ORDERED ADJUDGED AND DECREED that summary judgment is GRANTED as to the Application to Probate Will and for Issuance of Letters Testamentary and Motion to Withdraw Election not to Probate filed by Gail Brown.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Application to Probate Will and for Issuance of Letters Testamentary and Motion to Withdraw Election not to Probate filed by Gail Brown be and is hereby dismissed in its' [sic] entirety, with res judicata and prejudice as to refiling of same.

         Subsequently, on February 11, 2016, Joe filed traditional and no-evidence motions for summary judgment, again based in part on the statute of limitations, with respect to the amended application. The trial court held a hearing on those summary judgment motions on April 27, 2016, and entered summary judgment in Joe's favor on April 27, 2016, as to the amended application. Gail subsequently filed her notice of appeal within thirty days of the trial court's order granting Joe's summary judgment as to the amended application.

         However, Gail's notice of appeal was filed more than thirty days after the trial court granted Joe's motions for summary judgment as to the original application. Because the language of the January 2016 order dismissing Gail's application with prejudice appeared to indicate that it was a final, appealable order, we notified the parties of our concern that we may not have jurisdiction to entertain an appeal from the April order. Specifically, we informed the parties that we believed Gail was required to file either a notice of appeal, a motion for reconsideration, or a motion for new trial within thirty days of January 26, 2016, and that the clerk's record did not ...


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