Robert Halbert v. Judy Box ( 2003 )

NO. 12-02-00342-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

ROBERT HALBERT,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW NO. 3 OF

JUDY BOX, ET AL.,

APPELLEES

§ SMITH COUNTY, TEXAS

---

---

MEMORANDUM OPINION

PER CURIAM

This is a probate matter involving a will contest, during which the parties entered into a mediated settlement agreement. Subsequently, Appellees filed a petition in this same cause seeking to enforce the settlement agreement. The parties later filed competing motions for summary judgment. Thereafter, the trial court entered an order granting Appellees' partial motion for summary judgment. The order did not dispose of Appellees' claim for attorney's fees set forth in their third amended petition to enforce the mediated settlement agreement.

Appellant attempts to appeal the trial court's order granting partial summary judgment in favor of Appellees. Since the trial court's order does not dispose of the Appellees' claim against Appellant for recovery of attorney's fees, it is interlocutory in nature. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995); see also Villarreal v. Zukowsky, 54 S.W.3d 926, 929 (Tex. App.- Corpus Christi 2001, no pet.) (in probate action to construe will, order which did not dispose of party's claim for fair rental value or attorney's fees not final under rule in Crowson). Nevertheless, Appellant has attempted to appeal from that order.

The Texas Supreme Court has set forth the following test for determining the finality of orders in probate cases:

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. 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. For appellate purposes, it may be made final by a severance order, if it meets the severance criteria....

  Crowson, 897 S.W.2d at 783. The instant appeal is not authorized by statute. Furthermore, based on our review of the record, Appellees' claim for attorney's fees may logically be considered a part of Appellees' action to enforce the mediated settlement agreement. See Villarreal, 54 S.W.3d at 929; see also Crowson, 897 S.W.2d at 783. Thus, since the order granting partial summary judgment has not otherwise been made final by a severance order, we dismiss the appeal for want of jurisdiction.

Opinion delivered May 30, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)