in the Guardianship of Clarence Lamar Norsorthy, an Incapacitated Person
05-16-00683-CV
| Tex. App. | Feb 15, 2017Background
- Appellant Jeanette Norsworthy (individually and as guardian) appealed five Probate Court rulings concerning management of Clarence Norsworthy’s trust: (1) April 12, 2016 order requiring court approval for disbursements > $2,500; (2) May 4, 2016 oral denial of motions to stay/vacate that order; (3) May 4, 2016 interim budget order for May 1–Sept 30, 2016; (4) May 4, 2016 oral denial of motion to compel ex parte communications; and (5) May 20, 2016 order denying recusal.
- The contested rulings followed review of the trustee’s 2008–2013 accountings and the trustee’s petition to make regular distributions to Jeanette for recurring expenses.
- The parties filed letter briefs addressing the Court of Appeals’ concern about appellate jurisdiction because no final judgment had been signed and some orders were not reduced to writing.
- Appellant and trustee argued the April 12 disbursement order and May 4 interim budget order were appealable as independent, final “phases” of the probate proceeding.
- The guardian ad litem and appellee argued the orders were not appealable: oral rulings were not reduced to writing; the orders did not finally resolve the overall trust-management issues; and denial of recusal is reviewable only on appeal from final judgment.
- The Court of Appeals concluded none of the challenged orders were appealable and dismissed the appeal; appellee Turtle Creek Trust Company was awarded costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of April 12 disbursement-approval order | Order was entered sua sponte, not requested by a party, so it finally resolved that phase and is appealable | Order is part of ongoing trust-management proceedings and did not finally resolve the overall issue; not appealable | Not appealable; too intertwined with ongoing trust-management proceedings |
| Appealability of May 4 interim budget order | Budget fixes amounts for a defined period and will not be revisited, so it is a final phase order and appealable | Order merely governs an interim period and sets the stage for further proceedings; not final | Not appealable; does not finally decide the overall management issue |
| Appealability of May 4 oral denials (stay/vacate; motion to compel) | Appellant seeks review of trial court’s denials | Oral rulings have not been reduced to a signed written order, so they are not ripe for appellate review | Not appealable; rulings not reduced to writing and thus not ripe |
| Appealability of May 20 recusal-denial order | Appellant seeks interlocutory review of recusal denial | Denial of recusal is reviewable only on appeal from a final judgment; because no final order exists, not appealable | Not appealable; reviewable only after final judgment |
Key Cases Cited
- De Ayala v. Mackie, 193 S.W.3d 575 (Tex. 2006) (probate orders can be appealable if entered in a statute-declared final phase or when no issues remain)
- Fed. Underwriters Exch. v. Bailey, 175 S.W.2d 618 (Tex. Civ. App.—Dallas 1943) (judgment becomes appealable when reduced to writing, signed, and entered in minutes)
- Loper v. Hosier, 148 S.W.2d 889 (Tex. Civ. App.—Dallas 1941) (same principle on reduction to writing and signature for appealability)
- Ganesan v. Reeves, 236 S.W.3d 816 (Tex. App.—Waco 2007) (appellate court not required to hold appeal open until appealable order is signed)
- In re Guardianship of Hart, 460 S.W.3d 742 (Tex. App.—Fort Worth 2015) (order denying recusal in guardianship case not appealable absent final order)