in the Matter of the Estate of William Eugene Gleghorn ( 2022 )

NO. 12-22-00266-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE MATTER OF THE ESTATE
§ COUNTY COURT AT LAW
OF WILLIAM EUGENE GLEGHORN
§ VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Connie Gleghorn Odic filed a petition to contest the validity of the will admitted to
probate and a request for a temporary injunction in the Estate of William Eugene Gleghorn.
Odic is Gleghorn’s granddaughter. She alleged that the will should be set aside due to
Gleghorn’s lack of testamentary capacity and, alternatively, undue influence exerted by
Jacqueline Moore Gleghorn, independent executor of the Estate, and Porfirio Herrera. She
further sought revocation of letters testamentary issued to Jacqueline. Jacqueline filed an
original answer and counterclaim, in which she sought (1) actual damages, given Odic’s bad
faith pursuit of appointment as Gleghorn’s guardian, (2) damages for malicious prosecution,
abuse of process, and inovation of privacy, and (3) a declaratory judgment confirming that Odic
“by her conduct forfeited any right she has under Decedent’s Will, together with reasonable
attorneys’ fees and costs.” On April 6, 2022, Odic filed an amended petition to contest the
validity and enforceability of the will, which she alleged was wrongfully admitted to probate,
along with a request for a temporary and permanent injunction. She listed Jacqueline, Porfirio
Herrera, Wynne & Wynne, B. Prater Monning, III, Tammie Harp, and Beatriz Gonzalez as
parties. Odic added a request for an accounting and appointment of an independent auditor, and
alleged a violation of the Texas Uniform Fraudulent Transfer Act, unjust enrichment,
conversion, and conspiracy.
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Wynne & Wynne, Monning, Harp, and Gonzalez subsequently filed a motion to dismiss
pursuant to the Texas Citizens Participation Act (TCPA), requested sanctions against Odic and
her counsel, Aamer Ravji, and sought additional sanctions in the form of dismissal of Odic’s
entire contested case. On September 2, the trial court granted the motion and found as follows:
The claims asserted against Defendants in this cause by Connie Odic (“Petitioner”), in filings by
Aamer Ravji (“Petitioner’s Counsel”), are based on and in response to Defendants’ exercise of the
right to petition. But Petitioner failed to establish by clear and specific evidence a prima facie case
for each essential element of her claims against Defendants. And Defendants established the
affirmative defense of attorney immunity on which they are entitled to judgment as a matter of
law. Furthermore, Petitioner’s claims were brought to deter or prevent Defendants from exercising
constitutional rights and were brought for an improper purpose, including to harass or to cause
unnecessary delay or to increase the cost of litigation, the factual contentions against Defendants
lacked evidentiary support, and Petitioner’s Counsel did not employ due diligence to determine
whether those claims indeed had evidentiary support.
The trial court found $45,912.24 to be a reasonable amount of attorney’s fees incurred for
responding to Odic’s claims and found that Odic’s application for guardianship was filed for an
improper purpose. The trial court (1) dismissed with prejudice all causes of action asserted
against Wynne & Wynne, Monning, Harp, and Gonzalez, (2) ordered Odic and Ravji to pay
$45,912.24 as reasonable attorney’s fees, plus court costs, pursuant to Chapters 10 and 27 of the
Texas Civil Practice & Remedies Code, (3) ordered Odic and Ravji to pay $21,318.78 in expert
witness fees, as additional sanctions, pursuant to Chapters 10 and 27, and (4) dismissed with
prejudice all Odic’s causes of action, “which the Court determines to be a sufficient sanction to
deter her from bringing similar actions in the future, pursuant to Section 27.009(a)(2)[.]” 1 Odic
and Ravji appealed.
Jacqueline, Herrera, Monning, Gonzalez, Harp, and Wynne & Wynne (Appellees) filed a
motion to dismiss the appeal, arguing that the dismissal order does not dispose of all parties or
issues because Jacqueline’s counterclaims remain pending and the TCPA does not permit an
interlocutory appeal of an order granting a TCPA motion to dismiss. They ask this Court to
dismiss the appeal, find the appeal frivolous, and award sanctions. In response, Odic and Ravji
assert that this is a probate case, the Estates Code governs jurisdiction, and their appeal arises
from a final order per the Estates Code. Specifically, they contend that:
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If the trial court orders dismissal of a legal action under the TCPA, the court “may award to the moving
party sanctions against the party who brought the legal action as the court determines sufficient to deter the party
who brought the legal action from bringing similar actions described in this chapter.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.009(a)(2) (West 2020).
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…a determination of the person entitled to serve as the executor of the estate is a final appealable
order. The trial court’s order dismissing Appellant Connie Gleghorn Odic’s will contest and
challenge to the appointment of Jacqueline Gleghorn as executor concludes “the phase of the
proceeding for which it was brought’”. The remaining issues before the trial court are Jacqueline
Gleghorn’s claims asserted in her capacity as executor, which are necessarily dependent on the
trial court’s decision that Ms. Jacqueline Gleghorn is the executor based on the will that is
contested. If (as Appellants contend) the trial court’s conclusion regarding the executor and
applicable will is erroneous, then all further proceedings in the trial court on the remaining issues
would likewise be erroneous. The order being appealed here is, thus, precisely the sort of
“controlling, intermediate decision” where “an error can harm later phases of the proceeding” that
explains why there is no “one final judgment rule” in the probate context.
A final order issued by a probate court is appealable to the court of appeals. TEX. EST.
CODE ANN. § 32.001(c) (West 2020). In probate appeals, if there is an express statute declaring
the phase of the probate proceedings to be final and appealable, that statute controls. Crowson v.
Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). “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.” Id.However, this case is unique in that Appellees moved for dismissal in the trial court
under Chapter 27 of the Texas Civil Practice and Remedies Code, i.e., the TCPA, and the trial
court dismissed Odic’s will contest under the TCPA. Thus, the order from which Odic and Ravji
appeal is an order granting a TCPA motion to dismiss, not an order ruling on the will contest.
Accordingly, the TCPA’s provisions govern our jurisdiction over this appeal. A party may file
an interlocutory appeal from the denial of a TCPA motion to dismiss. See TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(a)(12) (West Supp. 2022) (emphasis added). “If the trial court
timely grants the motion to dismiss, an order disposing of the entire case is appealable to the
same extent as any other final judgment.” In re Panchakarla, 602 S.W.3d 536, 538 (Tex. 2020)
(per curiam) (orig. proceeding). “But if granting the motion does not resolve the entire
controversy, the order is interlocutory and unappealable unless made final by severance.” Id.The dismissal order does not dispose of Jacqueline’s counterclaim for a declaratory
judgment that Odic “by her conduct forfeited any right she has under Decedent’s Will[.]” Nor is
there any indication that the trial court granted a severance. Therefore, we conclude that the
order granting Appellees’ motion to dismiss under the TCPA is interlocutory and not appealable
at this juncture. See Panchakarla, 602 S.W.3d at 538; see also Hodge v. Carter, No. 03-21-
00675-CV, 2022 WL 14989763, at *1 (Tex. App.—Austin Oct. 27, 2022, no pet.) (mem. op.)
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(dismissing for want of jurisdiction appeal from order granting TCPA motion to dismiss
appellant’s petitions against independent administrator of the estate, one of which included as a
defendant the purchaser of land sold by the estate administrator with the probate court’s
permission); In re Estate of Calkins, 580 S.W.3d 287, 294-96 (Tex. App.—Houston [1st Dist.]
2019, no pet.) (in appeal from denial of TCPA motion to dismiss filed in probate proceeding,
declining to address appellants’ first two issues, including application to probate will, because
they fell outside limited scope of interlocutory jurisdiction). For this reason, we grant
Appellees’ motion to dismiss and we dismiss the appeal for want of jurisdiction. We overrule
Appellees’ request for sanctions.
Opinion delivered November 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 9, 2022
NO. 12-22-00266-CV
IN THE MATTER OF THE ESTATE OF
WILLIAM EUGENE GLEGHORN
Appeal from the County Court at Law
of Van Zandt County, Texas (Tr.Ct.No. 15,557)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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