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Gutierrez v. Stewart Title Co.

Court of Appeals of Texas, Fourteenth District

May 3, 2018


          On Appeal from the Probate Court Galveston County, Texas Trial Court Cause Nos. PR-0062112-E & PR-0062112-F

          Panel consists of Justices Christopher, Donovan, and Jewell.


          Kevin Jewell, Justice

         In 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.


         Enedina 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 Esteban.[1]

         Enedina's 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 restrictions.

         Olga refers to this paragraph as a "no-sale clause."

         In 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.

          In 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.

         As 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 prejudice.

         Olga 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.[2] This court dismissed both appeals in December 2016.

         The 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.


         Olga 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).

         A. Timeliness of the Notices of Appeal

         Stewart 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 herein.

         The 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, [3] and Olga's dismissal of the original appeals deprives this court of jurisdiction over the current appeals.

         Generally, 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.

         Olga 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.

         The 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.

         Stewart 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 ...

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