August 10, 2020

Volume X, Number 223

August 10, 2020

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Court Dismissed Appeal From Order Denying Motion To Remove Executor Because Attorney’s Fees Claim Was Still Unresolved

In Bethany v. Bethany, a party filed a motion to remove his brother as executor of their mother’s estate. No. 03-19-00532-CV, 2020 Tex. App. LEXIS 2350 (Tex. App.—Austin March 20, 2020, no pet.). The movant also sought costs and expenses incurred by him incident to removal, including reasonable attorney’s fees. In his response to the motion, the respondent similarly moved for costs and expenses in defending against removal, including reasonable attorney’s fees. Following a hearing, the trial court denied the motion but did not address the issue of attorney’s fees. The movant appealed, and the respondent filed a motion to dismiss the appeal because the order was not a final judgment.

The court of appeals noted that appeals may generally be taken only from final judgments. “Probate proceedings are an exception to the ‘one final judgment’ rule; in such cases, ‘multiple judgments final for purposes of appeal can be rendered on certain discrete issues.’” Id. However, “[n]ot every interlocutory order in a probate case is appealable.” Id. The test is whether the order “dispose[s] of all parties or issues in a particular phase of the probate proceedings.” Id. The court agreed with the respondent and dismissed the appeal:

This phase of the probate proceedings involved Paul’s motion to remove Stephen as independent executor. That motion and Stephen’s response to the motion included claims for costs and expenses, including reasonable attorney’s fees, incident to the removal proceedings. However, the trial court’s written judgment did not dispose of those claims or address them in any manner. It is well established that an order that does not dispose of all pending claims, including attorney’s fees, is not a final order. Accordingly, we grant Stephen’s motion to dismiss the appeal and dismiss the appeal for want of jurisdiction.


© 2020 Winstead PC.National Law Review, Volume X, Number 119


About this Author

David Johnson Financial Litigator Winstead Law Firm

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...