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In re Estate of Brazda

Court of Appeals of Texas, First District

July 11, 2019


          On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Case No. 413, 348

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.



         This is an appeal from a probate court in an estate administration. The trial court ordered the dependent administrator to make a partial distribution of estate property to two heirs. The court later found the administrator guilty of neglecting to timely distribute the property and ordered the administrator to pay one of the heirs[1] damages for the neglect.[2] The administrator moved for reconsideration of the damages order, the trial court stated during a hearing on the motion that it would reconsider the damages order, and it later entered written orders reconsidering and removing the personal liability against the administrator.

         In a single issue, the complaining heir contends that the trial court lacked jurisdiction to enter the orders reconsidering and removing the damages against the administrator because the original order awarding the damages was final and appealable in its own right and because the trial court lost plenary power over that order before the time that it entered the written reconsideration orders. We agree with the heir and vacate and remand.


         Appellant Brooks Brazda ("Brazda") is one of the heirs of Robert Jerry Brazda. Appellee Keith Morris is the dependent administrator of Robert Jerry Brazda's estate (the "Administrator").

         The Administrator applied to the probate court handling the estate administration for an order for a partial distribution of estate property. The Administrator sought to distribute $244, 562.34 from a Vanguard account owned by the estate, to be split between Brazda and his brother. On March 30, 2017, the court ordered the requested partial distribution.

         Afterward, the Administrator prepared paperwork for Vanguard to change the ownership status of the account, seeking to avoid a taxable event on the distribution. Some time passed. By September 2017, the Administrator had not yet made the distribution ordered by the March 30, 2017 order. So Brazda's counsel sent a demand letter to the Administrator, seeking an immediate distribution. Twelve days later, the distribution still had not been made, so Brazda applied for a show-cause order and for relief under Estates Code section 360.301 for the Administrator's alleged neglect in failing to make the distribution timely. The court entered the show-cause order and set Brazda's application for relief under Section 360.301 for a hearing on October 24, 2017. The Administrator was served with citation for the hearing, informing him that it would take place on October 24.

         The probate court held a hearing on Brazda's application, but the Administrator did not appear. The next day, the Administrator responded to Brazda's application. However, on October 31, 2017, the court entered an order (1) requiring the Administrator to distribute immediately the funds from the Vanguard account previously ordered distributed and (2) holding him personally liable under Section 360.301 (the "October 31, 2017 Order"). Later that day, the Administrator moved for reconsideration of the October 31, 2017 Order, requesting that the court "modify" the order.

         Then, on November 14, 2017, the court held a hearing on the motion to reconsider. After announcements of counsel, the hearing began:

[Counsel for the Administrator]: Your Honor, this is our motion to reconsider the granting of a partial distribution of the Estate of Robert Jerry Brazda. I know the judge had signed the order. I know that we missed the show-cause hearing. I wanted to bring it to the Court's attention because I wasn't sure if the Court saw it before he signed the order on October 31st the response that was filed on October 25th, 2017. I don't believe this was ever delivered to the Court. It was filed after the-at the same time of the hearing or around the hearing. And so the purpose of the motion to reconsider is to get in front of the Court the actions taken by [the Administrator] in an attempt to distribute the-
The Court: What I'm going to do is grant the motion to reconsider and set it for hearing so I can hear testimony. I only heard testimony from [Brazda], didn't hear from-but rather than doing it based on things that are filed, could I have some evidence? So I'll grant the motion for reconsideration and come and set it for hearing so we can hear what's going on.

(Emphases added.) The trial court, however, did not then enter any written order reconsidering or modifying the October 31, 2017 Order awarding damages.

         In January 2018, the Administrator supplemented his earlier application for a partial distribution to notify the court that the partial distribution ordered to be made to Brazda and his brother was made in December 2017.

         On March 15, 2018, Brazda filed a contract action in the suit. He sued Suretec Insurance Company on the surety bond it had issued for the Administrator's administration of the estate. The contract claim was based solely on the Administrator's Section 360.301 liability under the October 31, 2017 Order and sought damages accrued through the date of distribution-$47, 300.33.

         On March 26, 2018, the Administrator filed a reply in support of his motion to reconsider and requested for the first time that Brazda's counsel be sanctioned under Rule of Civil Procedure 13 for filing an allegedly groundless lawsuit against Suretec Insurance despite the trial court's earlier oral statements that it had requested rehearing of the issue of Section 360.301 damages.

         Then, on March 27, 2018, the probate court held a hearing on the motion to reconsider the October 31, 2017 Order. Later that day, the court entered two orders (the "March 27, 2018 Orders"). The first was styled an "Order Granting Motion to Reconsider" and said: "On this day, the Court considered the Motion to Reconsider the [October 31, 2017 Order] brought by Respondent, Keith Morris, requesting that the Court modify the [October 31, 2017 Order] to remove the personal liability. IT IS ORDERED that the Motion to Reconsider is Granted." The second was styled an "Order on Partial Distribution and Damages Pursuant to Texas Estates Code §360.301 and Request for Sanctions Under Tex. R. Civ. Pro. §13" and said:

On this day, the Court considered the [October 31, 2017 Order] filed by Brooks Brazda and Request for Sanctions under Tex. R. Civ. Pro. §13. IT IS ORDERED that the [October 31, 2017 Order] filed by Brooks Brazda is hereby DENIED. The Court ORDERS execution to issue including such writs and processes as may be necessary in the enforcement and collection of this ORDER.

The order also included stricken-through text related to the Administrator's request for sanctions against Brazda's counsel, indicating that no sanctions were awarded.[3]Brazda then noticed this appeal of the March 27, 2018 Orders. This table summarizes the above-recounted events:



Mar. 7, 2017

The Administrator pleads for a partial distribution.

Mar. 23, 2017

The Administrator amends his pleading requesting a partial distribution.

Mar. 30, 2017

The trial court orders the partial distribution.

Sept. 26, 2017

Brazda applies for the show-cause order.

Oct. 2, 2017

The trial court orders the Administrator to show cause for failure to timely distribute.

Oct. 24, 2017

The hearing on the show-cause request takes place, but the Administrator does not appear.

Oct. 25, 2017

The Administrator responds to the show-cause application.

Oct. 31, 2017

The trial court enters the October 31, 2017 Order.

Oct. 31, 2017

The Administrator moves for reconsideration.

Nov. 14, 2017

An oral hearing on the motion to reconsider takes place.

Jan. 3, 2018

The Administrator notifies the court of the December 2017 distribution.

Mar. 15, 2018

Brazda sues the Administrator's surety.

Mar. 27, 2018

An oral hearing on the motion to reconsider takes place.

Mar. 27, 2018

The trial court enters the March 27, 2018 Orders.

Apr. 24, 2018

Brazda notices this appeal.

          Appellate Jurisdiction and Finality of Orders in Estate-Administration Proceedings

         Brazda's sole issue implicates our jurisdiction over this appeal. He contends that the October 31, 2017 Order was a final order in its own right, such that the trial court had lost the plenary power to reconsider that order or to enter any further orders inconsistent with that order before the March 27, 2018 Orders were entered. In response, the Administrator argues that the October 31, 2017 Order is interlocutory and that the trial court therefore retained plenary power to reconsider it at the time of the March 27, 2018 Orders. The Administrator also argues that the March 27, 2018 Orders are interlocutory and that we therefore lack jurisdiction over this appeal. We will first address whether the March 27, 2018 Orders were final orders because that issue would be determinative our jurisdiction. See, e.g., Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623-24 (Tex. 2012); Harris v. Taylor, No. 01-15-00925-CV, 2016 WL 4055688, at *3 (Tex. App.- Houston [1st Dist.] July 28, 2016, no pet.) (mem. op.); Churchill v. Mayo, 224 S.W.3d 340, 344 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).

         I. Standard of review and applicable law

         It is a party's timely filed notice of appeal that invokes our appellate jurisdiction. See Tex. R. App. P. 25.1, 26.1; Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., 540 S.W.3d 577, 581-82 & n.27 (Tex. 2018) (per curiam). Unless specifically authorized by statute, we lack jurisdiction when a party notices an appeal from an interlocutory order or judgment. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012).

         Said another way, parties generally may appeal only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001). However, appeals from probate courts, which adjudicate estate administrations, involve an exception to the final-judgment rule because multiple final judgments or orders may be rendered on discrete issues before an entire probate-court proceeding is final. See Trevino v. Reese, No. 01-10-00717-CV, 2011 WL 2436523, at *2 (Tex. App.-Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.); Young v. First Cmty. Bank, N.A., 222 S.W.3d 454, 456 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         There are two categories of probate-court orders that are considered final, and therefore appealable, even if not every party and issue in the entire proceeding is disposed of by the order. First, statutes may declare certain orders to be final, appealable orders: "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." See Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006); Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995); Young, 222 S.W.3d at 457. Second, orders that dispose of all parties and issues "in a particular phase of the proceedings" are final, appealable orders:

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. . . . [U]nder Crowson, the trial court's order was interlocutory because it did ...

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