In the Estate of James Perry Allen, Jr. v. the State of Texas ( 2024 )

Opinion issued October 14, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-24-00002-CV
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NATALIYA ALLEN, Appellant
V.
VERABANK, N.A., AS SUCCESSOR DEPENDENT ADMINISTRATOR OF
THE ESTATE OF JAMES PERRY ALLEN, JR., DECEASED, Appellee
On Appeal from the County Court
Grimes County, Texas
Trial Court Case No. 8916
MEMORANDUM OPINION
Appellant Nataliya Allen appeals from two orders: the November 20, 2023
Order Approving the First Amended Inventory and List of Claims and the November
21, 2023 Order on First Amended Application to Sell Personal Property. Appellee
VeraBank, N.A., Successor Dependent Administrator of the Estate of James Perry
Allen, Jr., Deceased, filed a motion to dismiss for lack of jurisdiction. We grant the
motion and dismiss the appeal for lack of jurisdiction.
Background
On June 20, 2024, the Court dismissed this appeal because appellant Allen
had not paid the filing fee despite notice that the appeal was subject to dismissal.
After the appeal was dismissed, Allen paid the filing fee and filed a motion for
rehearing. Appellee VeraBank, the court-appointed Dependent Administrator of the
Estate of James Perry Allen, Jr., filed a response opposing Allen’s motion and urging
the Court to deny the motion. In the motion, VeraBank raised an argument about
jurisdiction.
On September 19, 2024, the Court granted Allen’s motion for rehearing
because the filing fee had been paid, withdrew its opinion and judgment, and
reinstated the case on the active docket. One day later, VeraBank filed an emergency
motion to dismiss the appeal based on lack of jurisdiction. We held this motion both
to permit Allen to file a response and for the filing of the clerk’s record so that the
Court could review whether it had jurisdiction. Allen has not filed a response to the
motion. The clerk’s record was not filed until October 7, 2024.
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Applicable Law
VeraBank argues that the two orders appealed in this case are interlocutory
and non-appealable. Generally, an appeal may be taken only from final judgments.
See Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385,
387 (Tex. 2020). Probate proceedings present an exception to the one-final-
judgment rule and in such cases, multiple judgments may be final for purposes of
appeal on certain discrete issues. See In re Guardianship of Jones, 629 S.W.3d 921,
924 (Tex. 2021). To determine if an order in a probate case is final for purposes of
appeal, we apply a two-part test:
If there is an express statute . . . 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.
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).
Order approving inventory is interlocutory and not appealable
VeraBank first argues that the order approving the first amended inventory is
not a final appealable order that disposes of all parties or issues.1 We agree. By
1
Allen stated in her notice of appeal that she is appealing from two orders, including
a November 20, 2023, Order Approving First Amended Inventory, Appraisement
and List of Claims. This order is not included in the clerk’s record but it is attached
to her notice of appeal.
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statute, an inventory may be amended or supplemented and, thus, does not dispose
of all parties and issues in a particular phase of the proceeding, but instead, merely
sets the stage for further proceedings in the resolution of the estate. See In re Arizola,
No. 04-11-00059-CV, 2011 WL 1852969, at *1 (Tex. App.—San Antonio May 11,
2011, no pet.) (mem. op.) (dismissing appeal for lack of jurisdiction because orders
appointing administrator, approving employment contract, and approving inventory
were interlocutory and not appealable); Brock v. Syslo, Nos. 04-08-00273-CV & 04-
08-00378-CV, 2008 WL 4519196, at *3 (Tex. App.—San Antonio Oct. 8, 2008, no
pet.) (mem. op.) (dismissing appeal for lack of jurisdiction because order approving
inventory and order denying application for sale of real property were interlocutory
and not appealable). Thus, the order approving the first amended inventory is
interlocutory and not an appealable order.
Order approving sale of property is interlocutory and not appealable
As for the November 21, 2023 order approving the sale of personal property,
VeraBank contends that this order is also interlocutory and not appealable because
there is an express statute providing for a final, appealable order under section
356.556 of the Estates Code. See Crowson, 897 S.W.2d at 783. Because the order
approving the sale of property is not a final judgment provided by statute in this
phase of the proceedings, VeraBank argues that the order approving the sale of
personal property is interlocutory.
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Chapter 356 of the Estates Code concerns the sale of estate property, and this
statute sets out a “comprehensive statutory scheme governing estate administration
proceedings to sell estate property and orders authorizing such sales.” In re Est. of
Bendtsen, 229 S.W.3d 845, 848 (Tex. App.—Dallas 2007, no pet.). This chapter
includes sections concerning various types of sales, including sales of personal and
real property. See TEX. EST. CODE ch. 356. This statute provides for a variety of
orders including orders for sale of personal property that might deteriorate if a sale
were delayed, see id. § 356.051, orders for sale of personal property, see id.
§ 356.101, orders for sale of livestock, see id. § 356.153, orders concerning sales of
mortgaged property, see id. § 356.203, and orders for sale of real property. See id.
§ 356.256. In section 356.556, the statute provides that “[t]he court’s action in
approving or disapproving a report under Section 356.5512 has the effect of a final
judgment.” Id. § 356.556(c). This section further states that any person interested
in the estate or in the sale may have an order under section 356.556 “reviewed as in
other final judgments in probate proceedings.” Id.
A number of courts have dismissed appeals for lack of jurisdiction where the
orders appealed were not final judgments under section 356.556. See Rawlins v.
Weaver, 317 S.W.3d 512, 514 (Tex. App.—Dallas 2010, no pet.) (dismissing appeal
2
Section 556.551 requires a report to the court after a successful bid is made for the
sale of estate real property. See TEX. EST. CODE §356.551.
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of order authorizing sale of estate real property because it was not order expressly
authorized to be final and appealable under statutory scheme); Okumu v. Wells
Fargo Bank, N.A., No. 02-09-00384-CV, 2010 WL 87735, at *3 (Tex. App.—Fort
Worth Jan. 7, 2010, no pet.) (mem. op.) (dismissing appeal because order granting
application to sell real and personal property was not final judgment under section
356.556(c); Bendtsen, 229 S.W.3d at 848 (dismissing appeal of order authorizing
sale of estate’s interest in real property because statutory scheme provided that order
confirming or disapproving report of sale of real property was final and appealable);
In re Guardianship of Landgrebe, No. 13-20-00476-CV, 2020 WL 7294613, at *2–
3 (Tex. App.—Corpus Christi-Edinburgh Dec. 10, 2020, pet. denied) (mem. op.)
(dismissing appeal for lack of jurisdiction because order granting application to sell
real property was interlocutory based on statutory scheme providing for appeal only
of order approving or disapproving report of sale of real property); In re Est. of Hill,
09-13-00022-CV, 2013 WL 6044404, at *2 (Tex. App.—Beaumont Nov. 14, 2013,
no pet.) (mem. op.) (dismissing appeal for lack of jurisdiction because order
approving sale of real property was not final, appealable order set out in statutory
scheme concerning sale of estate real property).
Although none of these cases concerned orders solely for the sale of personal
property, such as the one in this appeal, we do not find this to be a relevant
distinction. Orders concerning sales of personal property are one of many types of
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orders in the comprehensive statutory scheme for sales of estate property. Because
there is an express statute declaring which phase of the proceeding is appealable, the
statute controls. See In re Est. of Smith, No. 07-23-00160-CV, 2024 WL 1298031,
at *3 (Tex. App.—Amarillo March 26, 2024, no pet.) (mem. op.). The amended
inventory in this case indicates that the estate contains real property, stocks and
bonds, mortgages, notes and cash, and other miscellaneous property. Nothing in the
clerk’s record indicates that the real property has been sold or that the trial court has
entered an order under section 356.556. Thus, no final judgment concerning the sale
of estate property has been entered by the trial court and the order approving the sale
of personal property is therefore interlocutory and not appealable. See Crowson, 897
S.W.2d at 783.
Because we have determined that both orders appealed in this case are
interlocutory and not appealable, the Court lacks jurisdiction over Allen’s attempted
appeal of these orders. See Pena v. Flexsteel Pipeline Technologies Inc., No. 01-24-
00405-CV, 2024 WL 3940827, at *1 (Tex. App.—Houston [1st Dist.] Aug. 27,
2024, no pet.) (mem. op.) (citing In re M.G., No. 01-05-00426-CV, 2006 WL
1549754, at *1 (Tex. App.—Houston [1st Dist.] June 8, 2006, no pet.) (mem. op.)
which held that when party appeals non-appealable interlocutory order, appellant
court has jurisdiction only to dismiss appeal). We grant VeraBank’s motion to
dismiss.
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We dismiss this appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a),
43.2(f). The stay granted on September 19, 2024 is lifted. Any pending motions are
dismissed as moot.
PER CURIAM
Panel consists of Justices Hightower, Rivas-Molloy, and Gunn.
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