One of the most difficult areas for probate litigation is determining when a party has an order that is appealable. There have been several recent cases that discuss this important area of probate litigation. In In re Estate of Mims, a party attempted to appeal an order denying his motion to remove an executor. No. 06-21-00005-CV, 2021 Tex. App. LEXIS 1650 (Tex. App.—Texarkana March 4, 2021, no pet. history). The court of appeals dismissed the appeal for lack of jurisdiction. Regarding general principals of finality, the court stated:

“It is well settled that appellate courts have jurisdiction over final judgments and interlocutory orders made appealable by statute.” “A judgment is final for purposes of appeal if it disposes of all pending parties and claims.” “Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.” “Probate proceedings are an exception to the ‘one final judgment’ rule.” “A final order issued by a probate court is appealable to the court of appeals.” The Texas Supreme Court has adopted the following test to determine when a court order in a decedent’s estate is 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.” There is no statute that declares an order refusing to remove an executor to be final and appealable.

Id. The court held that because this was an order denying a motion to remove an executor and because the trial court did not rule on requests for attorney’s fees, the order was not final for appealable. Courts commonly hold that an unadjudicated claim for attorney’s fees means that a judgment or order is not final, and this case uses that concept in the context of a probate order.

In In the Estate of Harris, a party appealed an order of a trial court order authorizing payment of an attorney ad litem’s fees and terminating the ad litem’s representation. No. 02-19-00333-CV, 2021 Tex. App. LEXIS 1632 (Tex. App.—Fort Worth March 4, 2021, no pet. history). The court of appeals first held that the probate court’s order was appealable: “There is not an express statute declaring a probate order authorizing payment of an attorney ad litem’s fees or terminating the ad litem’s representation to be final and appealable. But such an order concludes a discrete phase of the probate proceeding and has been held to be appealable under De Ayala.” Id. The court then held that the probate court had authority to reappoint the ad litem even though an earlier order was appealable. The court held:

Harris’s reiteration of his plenary-power challenge demonstrates the lingering confusion surrounding the finality of appealable orders in the probate context. Specifically, Harris continues to rely on the understandable assumption that all appealable probate orders necessarily trigger the thirty-day expiration of plenary power under Rule 329b. This is not so. While probate proceedings are an exception to the one-final-judgment rule and may give rise to multiple appealable orders, such orders do not necessarily deprive the probate court of plenary power. Although an interlocutory order issued in a probate proceeding may be sufficiently final to permit appellate review under De Ayala, the interlocutory order remains just that—interlocutory. The probate court retains authority over the probate proceeding—including the authority to modify its prior orders—despite the appealability of certain interlocutory orders that conclude discrete phases of the proceeding. Harris’s challenge is thus misguided. Despite the appealability of the probate court’s March 2018 order awarding Cooper attorney’s fees and terminating her representation as attorney ad litem, the probate court did not lose plenary power to reinstate or to reappoint Cooper in her former role. We overrule Harris’s first issue.

Id. This case presents an interesting issue in Texas. The case holds that even though a probate order is sufficiently final for appeal, that a trial court has continuing jurisdiction over the order until the entire probate proceeding is terminated. In Texas, probate proceedings are rarely terminated as parties normally just leave them open in case some future event occurs. So, can a party file a motion to modify an order that was entered twenty, thirty, or fifty years ago where the probate is still pending? This opinion would support a “yes” answer to that question.

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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…

[email protected]

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