in Re Mary Blanchard

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REHEARING
NO. 03-14-00511-CV
Mary Blanchard, Appellant
v.
Grace McNeill, in her Capacity as Successor Trustee and Beneficiary of the
Dixie Lee Hudlow Living Trust; Harold McNeill as Beneficiary of the Dixie Lee Hudlow
Living Trust; and the Dixie Lee Hudlow Living Trust, Appellees
FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-13-001179, HONORABLE GUY S. HERMAN, JUDGE PRESIDING
NO. 03-15-00048-CV
In re Mary Blanchard
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
We withdraw the opinion and judgment dated January 23, 2015, and substitute
the following opinion and judgment in their place. We deny Blanchard’s motion for en banc
reconsideration.
The appellees have moved to dismiss this appeal. For the following reasons, we
grant the motion and dismiss the appeal, dismiss appellant’s motion to stay as moot, and deny
appellant’s alternative petition for writ of mandamus.
Appellant Mary Blanchard seeks review of the Travis County Probate Court’s order
transferring a suit to itself. Blanchard filed suit in Harris County District Court against the same
parties who are appellees in this case to contest the disposition of property through the Dixie Lee
Hudlow Living Trust and to impose a constructive trust against Dixie Lee Hudlow’s property based
on Blanchard’s allegation that the property was promised to her by Dixie Lee Hudlow in exchange
for lifetime care of Dixie Lee Hudlow. Blanchard’s suit in Harris County was filed after Hudlow
died and after her will had been probated in Travis County Probate Court Number One, but while
the probate proceeding was still pending.
When the Probate Court probated the will, it appointed Grace McNeill as independent
executor of Hudlow’s estate. McNeill, as executor, filed in the Probate Court a motion to transfer
the Harris County suit to the Probate Court and to consolidate the Harris County suit with a pending
declaratory judgment action filed by McNeill in the Probate Court to declare the validity of the
Living Trust and its Third Amendment. See Tex. Est. Code § 34.001 (allowing statutory probate
court judge to “transfer to the judge’s court from a district, county, or statutory court a cause of
action related to a probate proceeding pending in the statutory probate court” and to “consolidate
the transferred cause of action” with other pending related proceedings). The Probate Court granted
the motion, and this appeal followed.
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The appellees assert that the Probate Court’s transfer order is a non-appealable
interlocutory order, and therefore, this Court lacks jurisdiction to consider Blanchard’s appeal. In
response, Blanchard filed a motion for temporary stay of the transfer order and all proceedings in the
Probate Court pending the resolution of her appeal, responded to appellees’ arguments for dismissal,
and in the alternative, requested that we treat her appeal as a mandamus.
Unless a statute authorizes an interlocutory appeal, the jurisdiction of this Court
is limited to the review of final judgments. See Tex. Civ. Prac. & Rem. Code §§ 51.012, .014;
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception
to this rule because “‘multiple judgments final for purposes of appeal can be rendered on certain
discrete issues.’” De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann, 39
S.W.3d at 192). But not every interlocutory order in a probate case is appealable. The Texas
Supreme Court has adopted a test for determining whether an order in a probate proceeding is
interlocutory or final and appealable:
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.
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). Courts that have considered whether
orders granting or denying a transfer of a case to probate court are final and appealable
have determined that they are not. See, e.g., State v. Fernandez, 159 S.W.3d 678, 682 (Tex.
App.—Corpus Christi 2004, no pet.); Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.—Houston
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[1st Dist.] 1995, no writ). No express statute declares a decision to grant or deny a transfer of a case
to probate court to be final and appealable. Forlano, 906 S.W.2d at 120. In this case, the transfer
order did not dispose of any parties or issues in any particular phase of the proceedings. See id.
Instead, the order only changes the venue in which the issues raised in Blanchard’s Harris County
suit will be decided. See In re Guardianship of Murphy, 1 S.W.3d 171, 172 (Tex. App.—Fort Worth
1999, no pet.). Under Crowson, a transfer order standing alone can never be appealable because the
order does not resolve a severable claim. See Forlano, 906 S.W.2d at 120.
We conclude that the transfer order is not final and appealable. Accordingly, we grant
appellees’ motion and dismiss the appeal for want of jurisdiction, and we dismiss Blanchard’s
motion for temporary stay of the transfer order and the probate proceedings as moot. See Tex. R.
App. P. 42.3.
Because we conclude that we lack jurisdiction to consider the transfer order on direct
appeal, we will consider Blanchard’s alternative petition for writ of mandamus. See CMH Homes
v. Perez, 340 S.W.3d 444, 452 (Tex. 2011) (holding that party invoked appellate court’s original
jurisdiction by specifically requesting that its appeal be treated as mandamus petition). Having
reviewed Blanchard’s filings, McNeill’s response, and the record provided, we conclude that the
trial court did not abuse its discretion by transferring the Harris County suit to the statutory probate
court under the authority of Estates Code Section 34.001.1 See Tex. Estates Code §§ 31.002(c)(1)
(defining “matter related to a probate proceeding” as including “the interpretation and administration
1
Travis County Probate Court No. 1 is a statutory probate court. See Tex. Gov’t Code
§ 25.2291(c).
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of an inter vivos trust created by a decedent whose will has been admitted to probate in the court”),
34.001 (providing statutory probate court with discretionary authority to transfer from another
court “a cause of action related to a probate proceeding pending in the statutory probate court”).
Therefore, we deny Blanchard’s petition for mandamus relief. See Tex. R. App. P. 52.8(a).
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
No. 03-14-00511-CV Dismissed for Want of Jurisdiction on Rehearing
No. 03-15-00048-CV Denied on Rehearing
Filed: April 1, 2015
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