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In re Estate of Griffith

Court of Appeals of Texas, Fifth District, Dallas

January 10, 2020

IN RE: ESTATE OF WILLIAM GRIFFITH, DECEASED

          On Appeal from the Probate Court No. 1 Dallas County, Texas Trial Court Cause No. PR-19-00996-1

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          ROBBIE PARTIDA-KIPNESS, JUSTICE

         This interlocutory appeal arises from an application to probate a will filed by appellees in Dallas County. Appellants took issue with venue in Dallas County and filed a motion to transfer venue to Wichita County. The Dallas County probate court denied appellants' motion. Appellants filed this appeal seeking interlocutory review of the probate court's order denying the motion to transfer venue. We dismiss the appeal for want of jurisdiction.

         Background

         Long-time Dallas resident William L. Griffith executed a will in 2010 devising certain property to appellee Rodney Wauson and listing appellee Randall Wauson as contingent beneficiary. Griffith was diagnosed with dementia and Alzheimer's in 2014, and Rodney filed an application to be appointed Griffith's guardian in 2015. Appellants, Griffith's niece and nephew Frances D. Lenox and Gordon Griffith, contested Rodney's application. The parties executed a family settlement agreement in which Griffith's Dallas home would be sold and appellants would move Griffith to a memory care facility in Wichita Falls, where appellants live. Appellants moved Griffith to Wichita Falls, as agreed. He died there on March 14, 2019.

         Appellees filed an application to probate the 2010 will in Dallas County. Appellants filed an opposition to the application, claiming the 2010 will was revoked by a will Griffith executed in 2015. Appellants also filed a motion to transfer venue to Wichita County on the grounds that Griffith resided and was domiciled there at the time of his death.

         The probate court denied appellants' motion and concluded that venue was proper in Dallas County under Section 33.001(a) of the Texas Estates Code. Appellants seek review of the probate court's interlocutory venue determination.

         Analysis

         As a preliminary matter, we must determine whether this court has jurisdiction to hear this case as a direct interlocutory appeal. Generally, parties may only appeal from a final judgment. Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har- Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)); Fernandez v. Bustamante, 305 S.W.3d 333, 337 (Tex. App.-Houston [14th Dist.] 2010, no pet.); but see Tex. Civ. Prac. & Rem. Code Ann. 51.014(a) (listing interlocutory orders that are appealable). A trial court's venue determination is generally interlocutory and not reviewable until final judgment. See Civ. Prac. & Rem. § 15.064(a); Tex.R.Civ.P. 87(6). The Texas Supreme Court has construed Section 15.064 and Rule 87 together, holding that "once a venue determination has been made, that determination is conclusive as to those parties and claims." In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding).

         This is a proceeding to admit a will to probate. We recognize an exception to the general rule requiring a final judgment in probate proceedings because multiple judgments may be rendered on discrete issues before the entire probate proceeding is concluded. See Brittingham- Sada de Ayala, 193 S.W.3d at 578 (citing Lehmann, 39 S.W.3d at 192). But not all probate orders are appealable. Id. Unless there is an "express statute . . . declaring the phase of the probate proceedings to be final and appealable," Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995), the probate order must have "sufficient attributes of finality to confer appellate jurisdiction" by adjudicating a "substantial right" or disposing of "all issues in the phase of the proceeding for which it was brought." See Brittingham-Sada de Ayala, 193 S.W.3d at 578. (reviewing authorities); see also Grounds v. Lett, 718 S.W.2d 38, 39 (Tex. App.-Dallas 1986, no writ) (holding an order is not appealable if it does not adjudicate a substantial right but would lead to further hearings on the issue); In re Guardianship of Murphy, 1 S.W.3d 171, 173 (Tex. App.- Fort Worth 1999, no pet.) (same); see, e.g., Tex. Est. Code § 202.202 (permitting appeal from a judgment declaring heirship). Parties are urged "to seek severance orders to eliminate ambiguities about whether the order was intended to be final and appealable." Brittingham-Sada de Ayala, 193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 783).

         The Texas Estates Code establishes mandatory venue for "a probate proceeding to admit a will to probate or for the granting of letters testamentary or of administration." Est. § 33.001. There is no "express statute" allowing interlocutory appeal from a venue determination in such proceedings. See Crowson, 897 S.W.2d at 783 (generally requiring an express statute to make an interlocutory order appealable); Fernandez, 305 S.W.3d at 339 (holding that interlocutory appeal was not permitted under Section 6 of the Texas Probate Code, predecessor to Section 33.001 of the Estates Code); see also Chevriere v. Mitchell, No. 01-18-00761-CV, 2019 WL 1996498, at *2 (Tex. App.-Houston [1st Dist.] May 7, 2019, no pet.) (citing Fernandez and holding the same under section 33.001 of the Estates Code); In re Estate of Fears, No. 06-03-00139-CV, 2004 WL 111423, at *2 (Tex. App.-Texarkana Jan. 22, 2004, no pet.) ("[T]here is no specific provision allowing an interlocutory appeal of a probate venue determination."); In re Estate of Aguilar, 435 S.W.3d 831, 833 (Tex. App.-San Antonio 2014, no pet.) (dismissing appeal from probate court's venue transfer under Section 34.001 of the Estates Code for lack of jurisdiction).

         The probate court's order denying appellants' motion to transfer venue does not affect the substantial rights of any party and does not dispose of all issues and parties, thus it is not appealable. See Crowson, 897 S.W.2d at 783; Grounds, 718 S.W.2d at 39 (holding a probate court's denial of a motion to transfer venue is not final and appealable).

         Appellants argue that the probate court's venue determination is appealable under Section 15.003 of the Civil Practice and Remedies Code. Section 15.003 states, "In a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue." Civ. Prac. & Rem. § 15.003(a). If a plaintiff cannot independently establish venue in the case, that plaintiff's claims must be transferred to a proper venue unless certain criteria are met. Id. Section 15.003(b) permits interlocutory appeal of "a trial court's determination" of these criteria. Civ. Prac. & Rem. ยง 15.003(b). Thus, Section 15.003 provides an exception ...


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