J. Michael Epstein, Ind., and as Trustee v. John Hutchison, Successor Guardian

Order issued July 23, 2004  

In The  

Court of Appeals  

For The  

First District of Texas  

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NO. 01-03-00797-CV

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J. MICHAEL EPSTEIN, INDIVIDUALLY AND AS REMOVED TRUSTEE UNDER THE WILL OF JULIUS EPSTEIN, Appellant

V.

JOHN A. HUTCHISON III, SUCCESSOR GUARDIAN OF THE ESTATE OF ALTA EPSTEIN, AN INCAPACITATED PERSON, Appellee

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On Appeal from Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 233,112-401

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MEMORANDUM OPINION

          Appellant, J. Michael Epstein (“Michael”), appeals from six interlocutory orders. Michael has moved this Court to consider five of the six orders under Rule of Appellate Procedure 29.6. See Tex. R. App. P. 29.6(a)(2). Appellee, John A. Hutchison III, has responded to Michael’s motion and moved to dismiss the appeal. Michael has responded to Hutchison’s motion to dismiss the appeal.

          Michael sued Alta J. Epstein (“Alta”), his mother, alleging that she had committed various wrongful acts as trustee of testamentary trusts established under the will of Julius Epstein, Michael’s father and Alta’s husband. Alta was later declared incapacitated. Michael became the sole trustee of the testamentary trusts. Appellee, John A. Hutchison, became the guardian of Alta’s estate.

          Hutchison filed a counterclaim against Michael, accusing him of improperly having withheld disbursements to Alta from the trusts and requesting his removal as trustee. Upon Hutchison’s motion for partial summary judgment, the trial court removed Michael as trustee and, by separate order, appointed Howard Reiner as successor trustee.

          Michael’s notice of interlocutory appeal specifies six orders:

1.Order granting Hutchison’s motion for leave to file additional materials (June 24, 2003);

2.Order granting in part and denying in part Hutchison’s objections to Michael’s affidavits (June 24, 2003);

3.Order granting Hutchison’s motion for partial summary judgment and removing Michael as trustee (July 1, 2003);

4.Order appointing successor trustee and granting other relief (July 23, 2003);

5.Order overruling Michael’s special exceptions to Hutchison’s first supplemental counterclaim (July 23, 2003);

6.Order denying Michael’s motion to strike hearing (July 23, 2003).

Hutchison moves for dismissal of Michael’s appeal from each of the six orders.  

A.      July 23 Order Appointing Reiner as Successor Trustee

          Hutchison first challenges our jurisdiction to consider Michael’s appeal from the order appointing Reiner as successor trustee.

          For one to appeal an order in a probate matter, it is not always necessary that the order finally and fully dispose of the entire probate proceeding. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). Rather, when a probate order finally disposes of, or is conclusive on, the issue for which that particular part of the probate proceeding was brought, the order is final and appealable. See id. Conversely, “if there is a [probate-court] 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. Here, the proceeding of which the order may logically be considered a part is at least the matter raised by Hutchison’s counterclaim, if not also Michael’s suit against his mother for breach of her fiduciary duties and accounting. The counterclaim sought damages for Michael’s breach of fiduciary duties toward Alta for withholding trust distributions from her, demanded an accounting for the trusts, sought removal of Michael as trustee and appointment of a successor trustee, sought declaratory judgment that Alta properly administered Julius’s estate and breached no fiduciary duties, sought reimbursement and set-off for funds that Alta had expended for the benefit of the trusts or the properties claimed by the trusts, sought an injunction requiring that distributions be made to Alta, and sought attorney’s fees for Alta’s guardian. The order appointing a successor trustee adjudicated only some of the issues and claims asserted in Hutchison’s counterclaim, and it adjudicated none of Michael’s claims. Because the order appointing successor trustee did not dispose of all of the issues involved in the particular proceeding, the order was interlocutory.

          “Generally, we have jurisdiction to hear an appeal from an interlocutory order only if a statute explicitly makes the order appealable.” Ahmed v. Shimi Ventures, 99 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)); cf. Crowson, 897 S.W.2d at 783 (“If there is an express statute . . . declaring the phase of the probate proceedings to be final and appealable, that statute controls.”). Michael argues that we have jurisdiction to review this interlocutory order because it “appoints a receiver or trustee.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1) (Vernon Supp. 2004). “A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (1) appoints a receiver or trustee. . . .” Id.

          Hutchison argues, among other things, that section 51.014(a)(1) does not apply to an order appointing a successor trustee. We agree. This court has previously held that section 51.014(a)(1) does not apply to successor receivers. See Swate v. Johnston, 981 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (“Texas courts have consistently held, when construing predecessor statutes with identical language, that an interlocutory order appointing a successor to a permanent receiver is not appealable.”) (citations omitted). The Amarillo Court of Appeals has followed our reasoning in Swate to reach the same conclusion regarding successor trustees. See In re Estate of Dillard, No. 07-00-0504-CV, 2001 WL 139082, at *2 (Tex. App.—Amarillo Feb. 5, 2001, no pet.) (not designated for publication) (following our reasoning in Swate to hold that section 51.014(a) does not allow appeals of order appointing successor trustee). Section 51.014(a)(1) mentions only trustees and receivers, rather than successor trustees and receivers. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1). The holdings in Swate and Dillard thus comport with the rule that we must strictly construe statutes that grant jurisdiction to review interlocutory orders because such statutes create a narrow exception to the general rule that only final judgments are appealable. See Ahmed, 99 S.W.3d at 688.

          Michael responds that the July 23 order appointing Reiner as successor trustee was tantamount to an initial order appointing a trustee because it was the first court order concerning appointment of a trustee. The record shows that Michael became trustee under the testamentary trust’s terms, not by court order, and that the first order concerning the appointment of any trustee was the court’s July 23 order appointing Reiner as Michael’s successor. However, the July 23 order was still one appointing a successor trustee, not one appointing an initial trustee. This was the exact situation before the Dillard court, and it nonetheless held that no appellate jurisdiction lay over the order appointing successor trustee. See Dillard, 2001 WL 139082, at *2. Michael points to no authority to the contrary.

          We hold that 51.014(a)(1) does not allow interlocutory appeal of an order appointing a successor trustee. See Dillard, 2001 WL 139082, at *2; see also Swate, 981 S.W.2d at 925. Accordingly, we hold that we lack subject-matter jurisdiction over Michael’s interlocutory appeal of the order appointing Reiner as successor trustee. See id.

B.      The Remaining Five Orders

          Hutchison next challenges our jurisdiction to review the five remaining orders that Michael appeals. Although Michael admits that the five orders are not appealable under section 51.014, he argues that we can nonetheless review them under Rule of Appellate Procedure 29.6, which states:

(a)While an appeal from an interlocutory order is pending, on a party’s motion or on the appellate court’s own initiative, the appellate court may review the following:

(1)a further appealable interlocutory order concerning the same subject matter; and

(2)any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.

Tex. R. App. P. 29.6(a). Michael appears to be relying on rule 29.6(a)(2), reasoning that the allegedly “erroneous” rulings would “impair the effectiveness of the relief” that we could grant if we reverse the order appointing Reiner as successor trustee. Michael is thus arguing that we must consider the five additional rulings along with the order appointing Reiner as successor trustee.

          Having held that we have no jurisdiction to consider the July 23 order appointing Reiner as successor trustee, we conclude that we have no jurisdiction over the remaining orders of which Michael complains because none of them could “impair the effectiveness of the relief sought or that may be granted on appeal” of the successor-trustee order. See Tex. R. App. P. 29.6(a)(2). Simply put, no trial court order can impair our granting relief that we have no jurisdiction to grant in the first place.

          Accordingly, we grant Hutchison’s motion to dismiss the appeal, we deny Michael’s motion under rule 29.6, we dismiss Michael’s appeal, and we overrule any other pending motions as moot. See Tex. R. App. P. 42.3.

          It is so ORDERED.

PER CURIAM

Panel consists of Judges Taft, Jennings, and Hanks.