In In the Estate of Brazda, the trial court found an administrator guilty of neglecting to timely distribute the property and ordered the administrator to pay one of the heir’s damages for the neglect. No. 01-18-00324-CV, 2019 Tex. App. LEXIS 5924 (Tex. App.—Houston [1st Dist.] July 11, 2019, no pet. history). The administrator moved for reconsideration of the damages order, the trial court later entered written orders reconsidering and removing the personal liability against the administrator. The complaining heir appealed. The court of appeals held that the trial court lacked jurisdiction to enter the orders reconsidering and removing the damages against the administrator because the original order awarding the damages was final and appealable in its own right and because the trial court lost plenary power over that order before the time that it entered the written reconsideration orders.

Regarding the finality of probate orders, the court held:

[P]arties generally may appeal only from final judgments. However, appeals from probate courts, which adjudicate estate administrations, involve an exception to the final-judgment rule because multiple final judgments or orders may be rendered on discrete issues before an entire probate-court proceeding is final. There are two categories of probate-court orders that are considered final, and therefore appealable, even if not every party and issue in the entire proceeding is disposed of by the order. First, statutes may declare certain orders to be final, appealable orders: “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.” Second, orders that dispose of all parties and issues “in a particular phase of the proceedings” are final, appealable orders: “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. . . . [U]nder Crowson, the trial court’s order was interlocutory because it did not dispose of all parties or issues in a particular phase of the proceedings.”

Id. The court held that the order was sufficiently final: “In reviewing the relevant portions of the record, the March 27, 2018 Orders resolved the entirety of Brazda’s live pleadings. Brazda had applied for a show-cause order against the Administrator and asked for relief under Section 360.301. The March 27, 2018 Orders resolved those requests. All of Brazda’s issues therefore were resolved.” Id.

The court then held that the trial court lacked jurisdiction to amend its order after its plenary power period ended:

[W]hether the Administrator’s motion for reconsideration was a motion for new trial or not, it certainly sought either to vacate, modify, correct, or reform the final and appealable October 31, 2017 Order. Undoing that order therefore should have been done by written order under Rule 329b before the rule operated to deny the motion by operation of law. The March 27, 2018 Orders post-dated even the extended 105-day period allowable under Rule 329b(c)-(g). Therefore, the trial court had lost plenary power over the October 31, 2017 Order before it entered the March 27, 2018 Orders.

Id. Further, although not addressed in the opinion, the administrator also failed to timely appeal the original order, so the administrator waived any challenge to the appeal.

Interesting Note. The area of finality for probate orders is a complex area. This case highlights the need for trial counsel to seek advice from an appellate attorney when trying to correct or overturn a trial court’s order. An appellate attorney would likely have analyzed whether the original order was final and what the timeline was for filing an appeal and seeking a hearing in the trial court to correct the order while the trial court still had plenary jurisdiction.

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Photo of David Fowler Johnson David Fowler Johnson

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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 The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

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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 The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

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 action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law