in the Estate of Friley S. Davidson
05-15-00432-CV
| Tex. App. | May 5, 2015Background
- Davidson served as Independent Co-Executor of Friley S. Davidson's estate; Gremm was a named beneficiary and later administrator with will annexed.
- Probate Court issued two orders: (i) Feb. 22, 2013 partial summary judgment removing the independent co-executors, and (ii) Jan. 30, 2015 judgment on verdict/JNOV.
- Co-executors were Mississippi residents; Texas attorney David Bell designated as registered agent in Texas.
- Gremm filed a petition to remove the co-executors on May 25, 2011; discovery was limited to a narrow scope.
- The appellate issue concerns whether the Feb. 22, 2013 order is appealable and how probate/nonprobate and severance principles affect review; Davidson appeals March 30, 2015, after appellee moved to dismiss the appeal portion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Feb. 22, 2013 order appealable? | Order is interlocutory but subject to immediate review under probate/appeal rules. | Order is interlocutory and not a final judgment; Lehmann/Willett bar immediate appeal. | Yes, the order is appealable. |
| Does the probate exception bar appellate review of removal orders? | Removal orders are reviewable to prevent harm in administration. | Probate exception should preclude immediate appeal of such orders. | No; probate exception does not bar appeal of removal order. |
| Does lack of severance defeat appellate review of the removal order? | Partial summary judgment with removal is sufficiently final for appeal. | Severance rules apply; interlocutory nature remains. | No fatal severance bar; appellate review permitted. |
| Should the appeal be limited by finality rules like the One Final Judgment Rule? | Ongoing administration does not prevent review of removal order. | One final judgment rule limits review to final orders. | Probate context permits review of the interim removal order. |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (partial summary judgments lack presumed disposition treatment)
- In re Estate of Washington, 262 S.W.3d 903 (Tex. App.—Texarkana 2008) (removal order after hearing distinguished from mere summary pleadings)
- Pine v. Deblieux, 360 S.W.3d 45 (Tex. App.—Houston 2011) (implied finality for certain executor-related orders)
- In re Estate of Vigen, 970 S.W.2d 597 (Tex. App.—Corpus Christi 1998) (settling rights of an executor often final; context of removal/assignment matters)
- Spies v. Milner, 928 S.W.2d 317 (Tex. App.—Fort Worth 1996) (finality considerations in probate-related proceedings)
- Vineyard v. Irvin, 855 S.W.2d 208 (Tex. App.—Corpus Christi 1993) (finality rationale in ongoing estate administration)
- Willett, In re Estate of, 211 S.W.3d 364 (Tex. App.—San Antonio 2006) (partial summary judgment in probate context and finality concerns)