Are Orders In a Probate Proceeding Appealable ?
Guardianship proceedings are governed by the Probate Code and are generally conducted in county probate courts. See Tex. Prob. Code Ann. 605 (West Supp. 2000).
All final orders of any court exercising original probate jurisdiction are immediately appealable to the courts of appeals. See id. 5(f), 606(f).
To be deemed final and appealable, an order rendered in a probate proceeding need not finally dispose of the entire proceeding. See Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (Tex. 1945); Youngs v. Choice, 868 S.W.2d 850, 852 (Tex. App.--Houston [14th Dist.] 1993, writ denied).
A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based.
The need to review controlling, intermediate decisions before an error can harm later phases of the proceeding has been held to justify modifying the "one final judgment" rule. See Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex. App.--Fort Worth 1987, no writ); Tex. R. Civ. P. 301.
It has been held that an appealable order in a probate proceeding must adjudicate conclusively a controverted question or substantial right. See Kelley, 188 S.W.2d at 386.
The continued viability of the "substantial right" test is apparently in some doubt. See Estate of Navar v. Fitzgerald, 14 S.W.3d 378, 380 (Tex. App.--El Paso 2000, no pet.).
Be that as it may, barring a statute making an order in a particular phase of a probate proceeding final, the supreme court has cautioned that if pleadings in that phase raise other issues or parties that are not disposed of, the order is interlocutory. See Crowson, 897 S.W.2d at 783.
Regarding the appealability of a probate order, the supreme court has stated:
If there is an express statute . . . declaring the phase of the probate proceeding 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.Id. In Coleson v. Bethan, 931 S.W.2d 706, 712 (Tex. App.--Fort Worth 1996, no writ), the court of appeals held that an order continuing appointment of an attorney ad litem in a guardianship proceeding was a final and appealable order.
The Fort Worth court also noted that the same result could arise in a Rule 12 motion if someone questioned the "capacity" of a client to hire an attorney to defend against a guardianship proceeding. See id.