in the Estate of William F. Trimble ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00030-CV
IN THE ESTATE OF WILLIAM F.
TRIMBLE, DECEASED
----------
FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
TRIAL COURT NO. CIV-13-0523
----------
MEMORANDUM OPINION1
----------
Following the death of William F. Trimble, Appellant Anthony Trimble
sought to probate a will that William executed on January 20, 1992. On
September 10, 2013, the probate court signed an order admitting that will to
probate and issuing letters testamentary to Appellant. On April 4, 2014, Appellee
Christopher Dell Trimble filed an application to set aside the probate court’s order
1
See Tex. R. App. P. 47.4.
admitting the January 20, 1992 will to probate and to revoke the letters
testamentary that had been issued to Appellant, alleging that Appellant had acted
fraudulently in applying to admit that will to probate. On September 29, 2016, the
probate court signed an order (1) finding that the January 20, 1992 will had been
revoked and (2) revoking the letters testamentary that it previously issued to
Appellant (Revocation Order). After the trial court signed the Revocation Order,
the record shows that Appellee filed a second amended answer to application for
probate and counterclaims against Appellant, in which Appellee asserted breach
of fiduciary duty, fraud, and tortious interference with inheritance claims against
Appellant.2 On November 1, 2016, the probate court signed an order bifurcating
Appellee’s claim for revocation from all other claims pending in the suit
(Bifurcation Order).
Appellant attempts to appeal from the probate court’s Revocation Order
and Bifurcation Order. On February 1, 2017, we notified Appellant of our
concern that we lacked jurisdiction over this appeal because it did not appear
that the Revocation Order and the Bifurcation Order were final judgments or
appealable interlocutory orders. We informed Appellant that unless he or any
party desiring to continue the appeal filed a response showing grounds for
continuing the appeal by February 13, 2017, we would dismiss this appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. Appellant filed a
2
Our record does not contain an original or first amended answer to
application for probate and counterclaims against Appellant.
2
response stating that although he does not believe that the Bifurcation Order is a
severance that would make the Revocation Order final and appealable, he
nevertheless filed this appeal in an abundance of caution in the event that it was.
A separate trial and a severance are two different procedures. See In re
Ben E. Keith Co., 198 S.W.3d 844, 850 (Tex. App.—Fort Worth 2006, orig.
proceeding). A severance divides a lawsuit into two or more separate and
independent causes, and a judgment that disposes of all parties and issues in
one of the severed causes is a final and appealable order. Hall v. City of Austin,
450 S.W.2d 836, 837–38 (Tex. 1970); e.g., Ben E. Keith Co., 198 S.W.3d at 850
(citing Hall, 450 S.W.2d at 837–38). An order for a separate trial, by contrast,
leaves the lawsuit intact but enables the court to hear and determine one or more
issues without trying all controverted issues at the same hearing, and an order
entered at the conclusion of a separate trial is often interlocutory because no final
and appealable judgment can properly be rendered until all of the controlling
issues have been tried and decided. Hall, 450 S.W.2d at 838; e.g., Ben E. Keith
Co., 198 S.W.3d at 850 (citing Hall, 450 S.W.2d at 837–38).
Generally, appeals may be taken only from final judgments or interlocutory
orders that are authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195, 200 (Tex. 2001). A judgment or order is final if it disposes of every
pending claim and party. Id. at 205. Neither the Bifurcation Order itself nor
anything else in the record before this court shows that the probate court severed
Appellee’s revocation claim from his other claims and assigned the revocation
3
claim a different cause number than Appellee’s other claims. See Hall,
450 S.W.2d at 838 & n.2 (stating that nothing in the record could be construed as
ordering a severance and distinguishing cases involving orders that expressly
severed claims and/or assigned new cause numbers to the severed claims).
Thus, the Revocation Order is not a final judgment. Id. And Appellant has not
cited any statute that authorizes an interlocutory appeal from the Revocation
Order and the Bifurcation Order. Accordingly, we dismiss this appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, SUDDERTH, and KERR, JJ.
SUDDERTH, J., concurs without opinion.
DELIVERED: April 6, 2017
4