Mary Melinda Palacio AKA Melinda Palacio Dependent for the Estate of Luicio A. Palacio v. Paul Palacio and Mary Ann Palacio ( 2019 )

DISMISS and Opinion Filed April 24, 2019
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-00357-CV
MARY MELINDA PALACIO AKA MELINDA PALACIO DEPENDENT EXECUTRIX
FOR THE ESTATE OF LUICIO A. PALACIO, DECEASED, Appellant
V.
PAUL PALACIO AND MARY ANN PALACIO, Appellees
On Appeal from the Probate Court No 2
Bexar County, Texas
Trial Court Cause No. 2016-PC-2950
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Whitehill
Because there is no appealable judgment in this case, we dismiss this appeal for lack of
appellate jurisdiction.
A few months before his death, Lucio Palacio1 allegedly signed a bank form adding
appellees to a checking account as joint owners and making the account a joint account with right
of survivorship. After Palacio died, his estate’s executrix (appellant) sued appellees and asserted,
among other things, that Palacio lacked capacity to execute the form.
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Although Palacio’s first name is spelled “Luicio” in appellant’s trial-court pleadings’ style, and thus in our style, the record otherwise
consistently shows that his first name was “Lucio.”
Appellees counterclaimed for declaratory judgment and attorneys’ fees. They filed a
traditional summary judgment motion seeking judgment on the entire case and a separate no-
evidence summary judgment seeking judgment on appellant’s claims. The trial judge granted the
motions by separate orders. However, in the order granting the traditional motion the trial judge
struck out the provisions addressing appellees’ attorneys’ fees. Although the order contains a
Mother Hubbard clause, it does not purport to rule on appellees’ fee claims. See Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 203–04 (Tex. 2001) (defining “Mother Hubbard clause” and holding
that such a clause does not suffice to make a summary judgment final). Appellant then brought
this appeal.
We notified the parties that the record did not appear to contain a final, appealable
judgment, and we invited them to submit jurisdictional letter briefs within ten days. No letter
briefs were filed.
Generally, appeals may be taken only from final judgments. De Ayala v. Mackie, 193
S.W.3d 575, 578 (Tex. 2006). Probate cases are an exception to this rule. Id. In such cases,
multiple judgments that are final for appellate purposes can be rendered on certain discrete issues.
Id. An interlocutory order on a discrete issue is appealable if either (i) a statute expressly declares
that the particular phase of the proceeding is final and appealable or (ii) the order disposes of all
parties or issues for which the particular phase of the proceeding was brought. Id.; In re Barrera,
No. 05-17-00774-CV, 2017 WL 3614145, at *1 (Tex. App.—Dallas Aug. 23, 2017, no pet.) (mem.
op.).
We have found no statute on point. And because appellees’ claims for attorneys’ fees
remain pending, the summary judgment orders do not dispose of all parties and issues in this phase
of the probate case. Thus, there is no appealable order. See Youngblood & Assocs., P.L.L.C. v.
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Duhon, 57 S.W.3d 63, 65–66 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (lingering claim for
attorney’s fees prevented summary judgment from being final and appealable).
We dismiss the appeal. See TEX. R. APP. P. 42.3(a), (c).
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
180357F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARY MELINDA PALACIO AKA On Appeal from the Probate Court No 2,
MELINDA PALACIO DEPENDENT Bexar County, Texas
EXECUTRIX FOR THE ESTATE OF Trial Court Cause No. 2016-PC-2950.
LUICIO A. PALACIO, DECEASED, Opinion delivered by Justice Whitehill.
Appellant Justices Partida-Kipness and Pedersen, III
participating.
No. 05-18-00357-CV V.
PAUL PALACIO AND MARY ANN
PALACIO, Appellees
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that appellees Paul Palacio and Mary Ann Palacio recover their costs of
this appeal from appellant Mary Melinda Palacio AKA Melinda Palacio Dependent Executrix for
the Estate of Luicio A. Palacio, Deceased.
Judgment entered April 24, 2019.
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