in the Estate of Kristy Marie Turnbow ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00167-CV
___________________________
IN THE ESTATE OF KRISTY MARIE TURNBOW, DECEASED
On Appeal from Probate Court No. 2
Tarrant County, Texas
Trial Court No. 2018-PR00999-2-A
Before Birdwell and Walker, JJ.; and Gonzalez, J.1
Memorandum Opinion by Justice Birdwell
1
The Honorable Ruben Gonzalez, Judge of the 432nd District Court of Tarrant County,
sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h)
of the Government Code. See Tex. Gov’t Code Ann. § 74.003(h).
MEMORANDUM OPINION
Appellant Trevor Turnbow attempts to appeal the probate court’s order
holding him in contempt and sanctioning him $100,000 for violating its cease-and-
desist order “at least” ten times. We dismiss his appeal for want of jurisdiction.
Contempt orders are not appealable but are reviewable only by writ of
mandamus or habeas corpus. In re Janson, 614 S.W.3d 724, 727 (Tex. 2020) (orig.
proceeding). Accordingly, we lack jurisdiction to consider those portions of his
complaint.
Further, generally, a party may appeal only from a final judgment. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); In re Estate of Aguilar, No. 04-16-
00813-CV, 2018 WL 1176914, at *2 (Tex. App.—San Antonio Mar. 7, 2018, no pet.)
(mem. op.). A judgment is final for appellate purposes if it disposes of all pending
parties and claims in the record. Lehmann, 39 S.W.3d at 195.
Probate proceedings, however, are an exception to the one-final-judgment rule;
in such cases, a judgment disposing of certain discrete issues can be final for appellate
purposes. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (op. on reh’g); Aguilar,
2018 WL 1176914, at *2. The need to review controlling, intermediate decisions
before an error can harm later phases of the proceeding has been the justification for
this rule. De Ayala, 193 S.W.3d at 578. But not every interlocutory order in a probate
case is appealable, and determining whether a probate order is final for appellate
purposes has proven difficult. Id.
2
If there is an express statute declaring the phase of the probate proceedings to
be final and appealable, that statute controls. Id. Absent an express statute, a probate
court order is final and appealable only if it disposes of all parties or issues in a
particular phase of the proceedings. See id. at 579; Aguilar, 2018 WL 1176914, at *2. If
the order does not end a phase of the proceedings but, instead, is but a step toward
resolution of the proceedings, then the order is interlocutory. See De Ayala, 193
S.W.3d at 579; Aguilar, 2018 WL 1176914, at *2.
Sanction orders necessarily arise in the context of some other proceeding and
are not independently appealable until the trial court has rendered a final judgment.
See In re Casey, 589 S.W.3d 850, 855 (Tex. 2019) (orig. proceeding); 2 Vance v. Vance,
No. 10-10-00161-CV, 2010 WL 2523442, at *1 (Tex. App.—Waco June 23, 2010, no
pet.) (mem. op.); Elec. Data Sys. Corp. v. Tyson, 862 S.W.2d 728, 736 (Tex. App.—
Dallas 1993, orig. proceeding); see also Tex. R. Civ. P. 215.1(d), 215.2(b)(8), 215.3. This
is so because a sanction order disposes of neither parties nor claims. See In re Estate of
Hutchins, No. 05-12-01163-CV, 2012 WL 5503530, at *2 (Tex. App.—Dallas Nov. 13,
2012, no pet.) (mem. op.) (citing Kenseth v. Dall. Cnty., 126 S.W.3d 584, 600 (Tex.
App.—Dallas 2004, pet. denied), and Jobe v. Lapidus, 874 S.W.2d 764, 766 (Tex.
App.—Dallas 1994, writ denied)). “A sanctions order must be tied to the portion of
2
If, however, the order requires a party to pay the monetary sanctions before
the rendition of a final judgment and if complying with that order has a preclusive
effect on the sanctioned party’s access to the courts, mandamus potentially lies. See id.
at 851.
3
the proceedings in which the sanctionable conduct occurred.” Kenseth, 126 S.W.3d at
600.
In response to the concerns that we expressed during oral argument, both
parties filed post-submission jurisdictional letter-briefs. After reviewing these letter-
briefs, we hold that the sanction order is not appealable.
Turnbow asserts that the sanction order was the last remaining issue and that it
made the judgment final. We disagree. Because a sanction order disposes of neither
claims nor parties, Hutchins, 2012 WL 5503530, at *2, it cannot make an otherwise
interlocutory proceeding final. 3
Turnbow attached to his letter-brief a November 22, 2021 “Notice of
Settlement” to support his assertion that the sanctions were the last remaining issues
resolved in the trial court. 4 We are not persuaded. A “Notice of Settlement” is not an
3
Indeed, assuming a final judgment exists, Turnbow’s argument would raise
other concerns. A trial court has no authority to award sanctions after it loses its
plenary power. Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.
1996) (op. on reh’g); In re M.A.S., 233 S.W.3d 915, 925 (Tex. App.—Dallas 2007, pet.
denied) (op. nunc pro tunc). Motions for sanctions do not survive the expiration of
the trial court’s plenary jurisdiction. M.A.S., 233 S.W.3d at 925; Jobe, 874 S.W.2d at766–67. We are not, however, persuaded that a final judgment exists, so whether the
trial court signed the order after its plenary power expired does not appear to be an
issue.
4
Generally, an appellate court can review only the record as filed and cannot
review documents not included in the record or not considered by the trial court.
Healey v. Healey, No. 12-15-00047-CV, 2016 WL 4098750, at *3 n.3 (Tex. App.—Tyler
July 29, 2016, pet. denied) (mem. op. on reh’g); Burke v. Ins. Auto Auctions Corp., 169
S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied). However, an appellate court
4
order disposing of claims and parties. Hutchins, 2012 WL 5503530, at *2. And the
“Notice of Settlement” is not a judgment or order signed by the judge. See Tex. R.
App. P. 26.1. Furthermore, in appellee Shayla Turnbow Dunlap’s letter-brief, she
maintained that Turnbow later breached the settlement agreement, demonstrating that
the parties are still litigating various issues in the probate court.
Because contempt orders are not independently appealable and because
Turnbow has not shown that he is appealing an order disposing of a particular phase
of the probate proceedings, we dismiss his appeal for want of jurisdiction.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: July 7, 2022
can consider documents outside the record for the purpose of determining its own
jurisdiction over the case. See Sabine Offshore Serv. v. City of Port Arthur, 595 S.W.2d 840,
841 (Tex. 1979); Healey, 2016 WL 4098750, at *3 n.3; Harlow Land Co. v. City of Melissa,
314 S.W.3d 713, 716 n.4 (Tex. App.—Dallas 2010, no pet.).
5