OLGA GUTIERREZ, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR WITH WILL ANNEXED FOR THE ESTATE OF ENEDINA GUTIERREZ, DECEASED, Appellant
STEWART TITLE COMPANY, Appellee
Appeal from the Probate Court Galveston County, Texas Trial
Court Cause Nos. PR-0062112-E & PR-0062112-F
consists of Justices Christopher, Donovan, and Jewell.
these consolidated appeals from a probate proceeding, a
beneficiary under her mother's will challenges the
probate court's summary judgments in favor of the title
company for two contested conveyances of the testator's
properties. The title company moved for summary judgment on
the ground that the beneficiary's claims were barred by
the statute of limitations. On appeal, the title company
reasserts this affirmative defense, but also questions the
jurisdictional timeliness of these appeals and the
beneficiary's standing to pursue her claims. We conclude
that we have jurisdiction to consider the appeals in both
regards, but we agree with the title company that the
beneficiary's claims are barred by limitations.
Accordingly, we affirm the trial court's judgments.
Gutierrez owned two pieces of property in Galveston
County-the "Church Street Property" and the
"Winnie Street Property." Enedina died on April 4,
1998. Enedina had six children during her lifetime, five of
whom survived her death: Olga Gutierrez (appellant), Jose
Angel, Maria Julia, Maria Rosalia, and Jose
will was admitted to probate on February 12, 1999, and Jose
Esteban served as executor. The will devised the Church
Street Property and Winnie Street Property to Jose Angel and
Jose Esteban "in equal shares." The will also
included a paragraph providing:
None of the real property is to be sold or mortgaged, all
property is to be kept in the Gutierrez family. When one of
my children dies, that individual's property is to be
divided equally among the survivors. When the last of my
children is the only one remaining, then the property can be
sold or do whatever that individual desires, without
refers to this paragraph as a "no-sale clause."
2000, Jose Angel and Jose Esteban conveyed (1) the Church
Street Property to Armando Orellana and (2) the Winnie Street
Property to Don and Judy Lorenz. Stewart Title Company was
the title company for both transactions. Jose Angel died in
2011. In 2014, Olga, as part of a mediated settlement arising
out of a prior suit against Jose Esteban, became executrix of
her mother's estate.
2015, Olga filed a petition for declaratory judgment against
Orellana, the Lorenzes, and Stewart Title, alleging the sales
of the Church Street Property and Winnie Street Property were
void because Jose Angel and Jose Esteban had no authority to
sell the properties in 2000 under the "no-sale
clause" in Enedina's will. Olga purported to sue
individually and as representative of Enedina's estate.
The probate court severed Olga's claims regarding the
Winnie Street Property from Olga's claims regarding the
Church Street Property.
relevant here, Olga alleged in both suits that Stewart Title
misrepresented to Jose Angel and Jose Esteban that they had
authority to sell the properties. Stewart Title moved for
summary judgment on Olga's claims in each suit, asserting
a limitations defense as the sole ground for summary
judgment. On August 31, 2016, the trial court signed an order
granting the motions for summary judgment in both suits and
dismissing Olga's claims against Stewart Title with
appealed the summary judgments to this court, but
subsequently filed a document titled "Motion for
Non-Suit Without Prejudice, " contending that the
probate court had not entered an appealable final judgment in
either suit. This court dismissed both appeals in
probate court severed Olga's claims against Stewart Title
from the remaining claims among Olga, Orellana, and the
Lorenzes, in the respective lawsuits. Post-severance, Olga
appealed the August 31, 2016 summary judgments.
contends the trial court erred in granting both summary
judgments based on Stewart Title's limitations defense.
Before addressing Olga's arguments on the merits,
however, we consider Stewart Title's two arguments
challenging our jurisdiction. First, Stewart Title contends
that Olga's notices of appeal are untimely. Second,
Stewart Title argues that Olga lacks standing. Because
Stewart Title's arguments implicate our jurisdiction to
consider the appeals, we address them first. See,
e.g., In re R.A., 465 S.W.3d 728, 733 (Tex.
App.-Houston [14th Dist.] 2015, pet. denied).
Timeliness of the Notices of Appeal
Title filed a motion to dismiss these appeals on the grounds
that the notices of appeal were untimely. We denied that
motion on June 1, 2017. We state the reasons for our denial
deadlines for filing a notice of appeal are jurisdictional,
and, absent a timely filed notice of appeal, we must dismiss
an untimely appeal. See Tex. R. App. P. 25.1(b);
Tran v. Nguyen, No. 14-03-00766-CV, 2003 WL
22253631, at *1 (Tex. App.-Houston [14th Dist.] Oct. 2, 2003,
no pet.) (mem. op.) (per curiam). Stewart Title argues that
Olga's second notices of appeal are untimely.
Specifically, Stewart Title contends that the summary
judgments were final and appealable when first signed on
August 31, 2016, not when the probate court later severed
Olga's claims against Stewart Title. According to Stewart
Title, Olga's first notices of appeal were timely because
they were filed within thirty days of the summary judgment
orders,  and Olga's dismissal of the original
appeals deprives this court of jurisdiction over the current
with few, mostly statutory exceptions, a party may appeal
only from a final judgment. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). When, as here, a
conventional trial on the merits has not occurred, an order
or judgment is not final for purposes of appeal unless it
actually disposes of all parties and all claims, or unless
the order clearly and unequivocally states that it finally
disposes of all parties and all claims. Id. at 205.
sought declarations that the conveyances were void and that
Orellana and the Lorenzes have no interest in the Church
Street Property or Winnie Street property, respectively.
Alternatively, Olga sought a declaration as to the rights of
all parties with respect to each property. Olga asserted a
claim for damages against Stewart Title for
misrepresentations allegedly made prior to the conveyances.
In their respective suits, Orellana and the Lorenzes each
filed a combined counterclaim and third-party petition, in
which they: sought to quiet title; asserted a claim of
adverse possession; requested a judgment for the value of
improvements to their respective properties; and asserted a
claim for breach of warranty against third-party defendants.
August 31, 2016 summary judgments at issue dismissed
Olga's claims against Stewart Title with prejudice.
However, the judgments did not dispose of Olga's claims
against Orellana and the Lorenzes, nor of the property
owners' counterclaims against Olga. The judgments also
did not state with unmistakable clarity that they disposed of
all parties and all claims. Accordingly, applying
Lehmann, the summary judgments were not final and
appealable as of August 31, 2016 but would have become so
when the trial court signed severance orders on February 8,
2017. Only then would the summary judgments finally and fully
dispose of all parties and all claims in those severed cases.
Olga filed her second notices of appeal in both proceedings
thirty days later on March 10, 2017.
Title acknowledges Lehmann's general rule of
finality, but observes correctly that the rule does not apply
in probate proceedings. See, e.g., De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) ("Probate
proceedings are an exception to the 'one final
judgment' rule."). In part, this exception exists in
probate proceedings because controlling, intermediate issues
may need appellate review to prevent an error from harming
later phases of the proceeding. Id. "A probate
proceeding consists of a continuing series of events, in
which the probate court may make decisions at various points
in the administration of the estate on which later decisions
will be based." In re Estate of Adams, No.
14-12-00064-CV, 2013 WL 84925, at *2 (Tex. App.-Houston [14th
Dist.] Jan. 8, 2013, no pet.) (mem. op.). De Ayala
reaffirmed the court's test announced in Crowson v.
Wakeham, 897 S.W.2d 779, 783 (Tex. 1995), for
determining appellate jurisdiction of an "ostensibly
interlocutory probate order":
If there is an express statute, such as the one for the
complete heirship judgment, 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 ...