IN THE SUPREME COURT OF TEXAS

IN = THE SUPREME=20 COURT OF TEXAS

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No. = 04-0160

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Maria=20 Cristina Brittingham-Sada de Ayala, Petitioner

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 v.

Kevin=20 Michael Mackie, Adminstrator of the Ancillary Estate of Juan Roberto=20 Brittingham-McLean, Deceased, Respondent

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On Petition for = Review from=20 the

Court of = Appeals for the=20 Fourth District of Texas

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Argued March 22,=20 2005

Chief Justice Jefferson = delivered the=20 opinion of the Court.

Justice O=92Neill and Justice Green did not = participate in=20 the decision.

We = deny the=20 motion for rehearing. We withdraw our opinion of April 21, 2006 and = substitute=20 the following in its place.

Maria=20 Cristina Brittingham-Sada de Ayala (=93Ayala=94), defendant below, = alleged that the=20 trial court lacked subject matter jurisdiction over this ancillary = probate=20 proceeding involving the estate of her father, a Mexican testator whose = will was=20 probated in Mexico. The trial court denied Ayala=92s motion to dismiss, = and she=20 pursued an interlocutory appeal. The court of appeals concluded it had=20 jurisdiction over the appeal, and the parties now agree. Because we = disagree, we=20 reverse the court of appeals=92 judgment and dismiss the appeal.

Factual=20 Background

Juan Roberto=20 Brittingham McLean (=93Brittingham=94), a Mexican resident, died testate = in Mexico=20 on January 14, 1998. His will was admitted to probate in a Mexican = court, and=20 two executors, Raul Hernandez Garcia and Harold Turk, were named. = Brittingham=92s=20 wife, Ana Maria de la Fuente de Brittingham, sued his estate in that = proceeding=20 and asked that court to set aside their property agreement.[1] The Mexican = probate court=20 denied her request, and an appeal is pending in Mexico. The Mexican = probate=20 proceeding remains open.

Subsequently,=20 in August 2000, Ms. Brittingham filed an application to have = Brittingham=92s will=20 admitted to probate in Texas, as she alleged that he owned personal = property=20 (described as bank deposits, portfolio investments, and claims against = third=20 parties) in Webb County. Later that month, the trial court issued = ancillary=20 letters testamentary to Ms. Brittingham, naming her the independent = executor of=20 Brittingham=92s estate (the =93Estate=94). On behalf of the Estate, Ms. = Brittingham=20 sued Brittingham=92s daughters and grandchildren (who, pursuant to = Brittingham=92s=20 will, were the beneficiaries of ninety-five percent of his residuary = estate),=20 accusing them of pillaging the Estate=92s assets. Brittingham=92s only = son, John R.=20 Brittingham Aguirre (=93Aguirre=94), intervened, alleging an interest as = a creditor=20 of the Estate.[2]

Ayala moved=20 to dismiss the ancillary probate proceeding for lack of subject matter=20 jurisdiction or, alternatively, to have Ms. Brittingham removed as = executor. The=20 trial court denied the motion, and Ayala appealed.

The = Estate=20 and Aguirre moved to dismiss the appeal for lack of appellate = jurisdiction.=20 Citing Crowson v. Wakeham, they argued that, because = numerous=20 pleadings and issues remained pending in the trial court, the trial = court=92s=20 order was an unappealable interlocutory order. See Crowson, 897 = S.W.2d=20 779 (Tex. 1995). The court of appeals disagreed and concluded that it = had=20 jurisdiction. 131 S.W.3d 3, 7. Relying on Crowson, the court = noted that=20 the probate court order addressed all the relief requested by Ayala=92s = motion,=20 resolved the question of subject matter jurisdiction, and confirmed both = the=20 admission of the will to probate and the appointment of Ms. Brittingham = as=20 executor. Id. Thus, the court held that the probate court=92s = order=20 =93complete[d] the initial phase of the probate proceeding and [was] = final for=20 purposes of appeal.=94 Id. The court then held that the trial = court had=20 subject matter jurisdiction over the ancillary probate proceeding, but = that Ms.=20 Brittingham should be removed as executor due to a conflict of interest. = Id. at 8-9.

After the=20 court of appeals issued its opinion, Ms. Brittingham resigned as = representative=20 of the ancillary estate and withdrew from the litigation. Subsequently, = Roberto=20 Tijerina, the Mexican estate=92s successor independent executor, applied = to be=20 named Ms. Brittingham=92s successor in the Texas case. On April 14, = 2004, the=20 trial court denied Tijerina=92s application and appointed Kevin Michael = Mackie as=20 the Estate=92s successor administrator. Mackie has entered an appearance = on behalf=20 of the Estate in this matter.

Appellate=20 Jurisdiction

We = first=20 consider whether the court of appeals had jurisdiction over Ayala=92s = appeal, even=20 though respondents apparently no longer contest that jurisdiction.[3] See Univ. of = Tex. Med.=20 Branch v. Barrett, 159 S.W.3d 631, 633 n.8 (Tex. 2005). Generally, = appeals=20 may be taken only from final judgments. Lehmann v. Har‑Con = Corp., 39=20 S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception to the = =93one=20 final judgment=94 rule; in such cases, =93multiple judgments final for = purposes of=20 appeal can be rendered on certain discrete issues.=94 Id. at 192. = The need=20 to review =93controlling, intermediate decisions before an error can = harm later=20 phases of the proceeding=94 has been held to justify this rule. Logan = v.=20 McDaniel, 21 S.W.3d 683, 688 (Tex.App.‑Austin 2000, pet. = denied). Not every=20 interlocutory order in a probate case is appealable, however, and = determining=20 whether an otherwise interlocutory probate order is final enough to = qualify for=20 appeal, has proved difficult.

In = the past,=20 courts relied on the =93substantial right=94 test to decide whether an = ostensibly=20 interlocutory probate order had sufficient attributes of finality to = confer=20 appellate jurisdiction. See, e.g., Huston v. F.D.I.C., 800 S.W.2d = 845,=20 848 (Tex. 1990); Estate of Wright, 676 S.W.2d 161, 163 (Tex. = App.=96Corpus=20 Christi 1984, writ ref=92d n.r.e.). Under that standard, once the = probate court=20 adjudicated a =93substantial right,=94 the order was appealable. That = phrase soon=20 became a fruitful source of litigation as appellate courts struggled to=20 delineate its parameters. Eleven years ago, we attempted to clarify = appellate=20 jurisdiction in this complex area. See Crowson v. Wakeham, 897 = S.W.2d=20 779, 783 (Tex. 1995) (acknowledging that =93our language heretofore has = been=20 somewhat ambiguous=94). We noted that, while adjudication of a = =93substantial right=94=20 was one factor to be considered, equally important was our earlier = precedent=20 requiring that the order dispose of all issues in the phase of the = proceeding=20 for which it was brought. Id. at 782-83. To sidestep =93potential = confusion=94 about the appropriate test for jurisdiction, we adopted = this=20 test:

If there=20 is an express statute, such as the one for the complete heirship = judgment,=20 declaring the phase of the probate proceedings to be final and = appealable, that=20 statute controls. Otherwise, if there is a proceeding of which the order = in=20 question may logically be considered a part, but one or more pleadings = also part=20 of that proceeding raise issues or parties not disposed of, then the = probate=20 order is interlocutory.

Id. at=20 783. Recognizing the inherent difficulties in applying any test to = determine=20 appealability, we urged parties to seek severance orders to eliminate=20 ambiguities about whether the order was intended to be final and = appealable.=20 Id. at 783 (explaining that =93[l]itigants can and should seek a = severance=20 order either with the judgment disposing of one party or group or = parties, or=20 seek severance as quickly as practicable after the judgment=94).

The = parties=20 in this case did not seek a severance before appealing the order. They = could=20 hardly be faulted, however, as an order denying a motion to dismiss an = entire=20 proceeding for want of subject matter jurisdiction is more like a = prelude than a=20 finale. It certainly does not dispose of a claim that, if asserted=20 independently, would be the proper subject of a lawsuit. See Guar. = Federal=20 Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. = 1990);=20 see also Crowson, 897 S.W.2d at 783 (urging severance of a claim = only =93if=20 it meets the severance criteria=94); see, e.g., Forlano v. = Joyner, 906=20 S.W.2d 118, 120 (Tex.App.‑Houston [1st Dist.] 1995, no writ) = (=93The [venue]=20 transfer order, on the other hand, does not resolve a =91claim=92 at = all, and is=20 thus not severable.=94); H.E. Butt Grocery Co. v. Currier, 885 = S.W.2d 175,=20 177 (Tex.App.=96Corpus Christi 1994, no writ) (holding that an order = granting a=20 motion to compel discovery could not be severed because it =93does not = address a=20 =91claim=92 that may be severed under the rules=94).

Moreover,=20 under Crowson, the trial court=92s order was interlocutory = because it did=20 not dispose of all parties or issues in a particular phase of the = proceedings.=20 Because an order denying a plea to the jurisdiction and refusing to = remove an=20 executor does not end a phase of the proceedings, but sets the stage for = the=20 resolution of all proceedings, the order is interlocutory. See, e.g., = Fischer=20 v. Williams, 331 S.W.2d 210, 213-14 (Tex. 1960) (=93Since the order = overruling=20 respondents=92 motion to dismiss [in a probate proceeding] failed to = finally=20 dispose of the controverted issue [whether will contestants had shown an = interest in the case], it, therefore, amounts to no more than an = interlocutory=20 order, inconclusive in its nature, made in the progress of the trial, = and,=20 therefore, not appealable.=94); In re O=92Bryant, No. = 04-04-00359-CV, 2004=20 Tex. App. LEXIS 7147, at *2-*3 (Tex. App.=96San Antonio Aug. 11, = 2004, no=20 pet.) (dismissing appeal for lack of jurisdiction, as order denying plea = to the=20 jurisdiction in probate case was interlocutory); Mobil Oil Corp. v.=20 Shores, 128 S.W.3d 718, 721 (Tex. App.=96Fort Worth 2004, no pet.) = (court of=20 appeals lacked jurisdiction to review probate court=92s denial of plea = to the=20 jurisdiction).

The = court of=20 appeals did not reach Ayala=92s other alleged basis for appellate = jurisdiction[4]: that the trial = court=92s=20 failure to remove Ms. Brittingham as executor was immediately appealable = as an=20 order that =93overrules a motion to vacate an order that appoints a = receiver or=20 trustee.=94 Tex. Civ. Prac. = & Rem.=20 Code =A7 51.014(a)(2). Accordingly, we must decide whether the = Legislature=20 intended by that language to give appellate courts jurisdiction over all = orders=20 refusing to remove estate executors. To support her contention, Ayala = relies on=20 our statement in Bailey v. Cherokee County Appraisal District, = that =93the=20 administrator is designated the trustee of the estate property.=94 = Bailey,=20 862 S.W.2d 581, 584 (Tex. 1993).

The = Legislature enacted the statute permitting interlocutory appeal of = orders=20 overruling motions to vacate orders appointing receivers or trustees in = 1917,=20 and the provision remains substantially unchanged today. See Act = of March=20 30, 1917, 35th Leg., R.S., ch. 168, =A7 1, 1917 Tex. Gen. Laws 379, 379 = (now=20 codified at Tex. Civ. Prac. = & Rem.=20 Code =A7 51.014(a)(2)). At no time during the statute=92s almost = ninety-year=20 history have we held that it applies to a motion to remove an estate=92s = executor.=20 Our statement in Bailey=97that an administrator is designated = trustee of=20 estate property=97referred to the administrator=92s obligation, as = holder of legal=20 title to the estate=92s property, to pay ad valorem taxes accruing = during=20 administration. Bailey, 862 S.W.2d at 583, 586. It did not equate = an=20 executor to a trustee for all purposes, and there is no evidence that = the=20 Legislature intended to permit immediate appeals of orders refusing to = remove=20 estate executors. Accordingly, we conclude that section 51.014(a)(2) = does not=20 permit Ayala to pursue an interlocutory appeal of the trial court=92s = order.[5]

Conclusion

Because the=20 court of appeals was without jurisdiction, we reverse the court of = appeals=92=20 judgment and dismiss the appeal. Tex. R.=20 App. P. 60.2(c).

______________________________

Wallace B.=20 Jefferson

Chief Justice=20

OPINION=20 DELIVERED: June 9,=20 2006 &nb= sp; &nbs= p; = ; =20