In re Estate of Loveless

• Decision Date: 07 December 2001
• Docket Number: No. 06-00-00057-CV.,06-00-00057-CV.
• Citation: 64 S.W.3d 564
• Parties: In re ESTATE OF James Donald LOVELESS, Deceased.
• Court: Texas Court of Appeals

64 S.W.3d 564

In re ESTATE OF James Donald LOVELESS, Deceased.

No. 06-00-00057-CV.

Court of Appeals of Texas, Texarkana.

Submitted November 8, 2001.

Decided December 7, 2001.

Robert D. Bennett, Robert D. Bennett & Associates, PC, Gilmer, James W. Wallace Jr., Attorney At Law, Pittsburg, for appellant.

James R. Dunnam, Thomas C. West, Dunnam & Dunnam, LLP, Waco, Allen D. Place Jr., Attorney At Law, Gatesville, Kirk T. Garner, Attorney At Law, Winnsboro, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

ROSS, Justice.

Rosa Loveless appeals the summary judgment granted in favor of Wanda Loveless in an action to determine the heirs of James Donald Loveless, who died intestate in a traffic accident. Rosa filed an application to determine heirship in which she claimed she was married to James at the time of his death. Wanda filed a counter-application to determine heirship in which she claimed that Rosa was divorced from James in April 1990 and that she and James were married in July 1995.

The case was transferred from the County Court of Franklin County to the Eighth Judicial District Court to resolve this issue.¹ See TEX. PROB. CODE ANN. § 5(b) (Vernon Supp.2002). Rosa moved for summary judgment, but later withdrew her motion. Wanda also moved for summary judgment under TEX. R. CIV. P. 166a(b), (i). The trial court granted Wanda's motion.

Rosa contends the trial court erred in granting summary judgment because (1) much of Wanda's summary judgment proof was inadmissible, making the evidence insufficient to support the summary judgment (2) Rosa's evidence raises a genuine issue of material fact; (3) Wanda lacked standing to raise an estoppel defense; and (4) Wanda failed to address the issue of a common-law marriage.

Though neither party raises the issue, we must first address our jurisdiction to consider this appeal.² The general rule is that an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). In general, a judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, though an order in a probate case that does not dispose of all pending parties and claims may also be final for purposes of appeal in some instances. Id.

In Estate of Wright, 676 S.W.2d 161, 162 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.), the appellants filed petitions for declaration of heirship after the appellee was granted letters of administration for the decedent's estate. The trial court granted the appellants' motions for summary judgment, and the appellee did not appeal. Id. at 163. Some time later, the appellee filed a motion for rehearing of the summary judgment, and the trial court reversed its previous decision. Id. On appeal, the appellants contended the trial court had no jurisdiction to reverse its previously granted summary judgment because it was a final judgment. Id. The court of appeals held the trial court's initial summary judgment was final because it fully adjudicated the heirship rights of all the parties. Id. at 164.

In Crowson v. Wakeham, 897 S.W.2d 779, 780 (Tex.1995), the appellant contended she was the decedent's common-law wife. The appellees intervened, claiming they were the decedent's relatives and challenging the appellant's contention. Id. at 780-81. The appellees moved for summary judgment based on deemed admissions that the appellant was not the decedent's common-law wife. Id. at 781. The trial court granted the appellees' motion for summary judgment and two months later severed the partial summary judgment from the appellees' other heirship claims. Id.

Relying on Wright, the court of appeals held that the order granting summary judgment adjudicated all of the appellant's substantial rights. Id. at 781 n. 2. Therefore, the court held the severance order was unnecessary to make the order appealable and the appellant's notice of appeal was untimely. Id. at 781-82.

In reversing, the Texas Supreme Court noted that, in determining whether an order is appealable, it is important that a party's substantial rights be adjudicated, as the court of appeals held. Id. at 782-83. However, the Texas Supreme Court also concluded that of equal importance is the requirement that the order dispose of all issues in the phase of the proceeding for which it was brought. Id. at 783. The court went on to outline the following standard for determining finality of an order in a probate case:

If there is an express statute, such as the one for the complete heirship judgment [see TEX. PROB. CODE ANN. §§ 54, 55(a) (Vernon 1980) ], 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. For appellate purposes, it may be made final by a severance order, if it meets the severance criteria ....

Id. The Texas Supreme Court held the summary judgment was interlocutory until it was severed because it did not dispose of the appellees' heirship claims. Id. at 782-83.

This case is governed by the first part of the test outlined in Crowson because there is an express statute governing heirship proceedings. Section 54 of the Probate Code requires that a judgment in a proceeding to determine heirship declare the names and places of residence of the decedent's heirs, and their respective shares and interests in the decedent's real and personal property. TEX. PROB. CODE ANN. § 54 (Vernon 1980). Such a judgment is final and may be appealed within the same time limits and in the same manner as other judgments in probate matters. TEX. PROB. CODE ANN. § 55(a) (Vernon 1980).

The judgment in the present case adjudicates Rosa's and Wanda's heirship claims by declaring Wanda as James' heir and sole surviving spouse. The judgment further recites:

[T]his matter was transferred pursuant to Section 5 of the Texas Probate Code from the Franklin County Court for this Court to determine and resolve disputes between WANDA LOVELESS ... and ROSA LOVELESS regarding each's claim to be the sole surviving spouse of JAMES DONALD LOVELESS, Deceased. As this judgment resolves all of those issues in favor of WANDA LOVELESS... and against ROSA LOVELESS, the Court ORDERS that this Judgment be referred back to the Franklin County Court for further proceedings not inconsistent with this Court's rulings and findings contained herein.

It does not declare the names and places of residence of James' heirs, and their respective shares and interests in James' real and personal property, as Section 54 requires. Wanda's own pleadings demonstrate there are other potential heirs at issue in this case. Therefore, this is not a final judgment.

This case is more like Crowson than Wright. In Crowson, the judgment did not adjudicate the appellees' heirship claims; therefore, it was not final. Crowson, 897 S.W.2d at 782-83. In Wright, the judgment specified the names of the decedent's heirs and their respective shares of her estate. Wright, 676 S.W.2d at 163-64.

Arguably, Crowson is distinguishable from the present case in that here the only parties were Wanda and Rosa; the other purported heirs did not intervene, as they did in Crowson. Further, these proceedings were separate and distinct, and intended to resolve only Wanda's and Rosa's competing claims. These are distinctions without difference in light of Crowson's requirement that the statute governing the heirship judgment controls its finality. That statute requires an heirship judgment to declare the names and places of residence of the decedent's heirs, and their respective shares and interests in the decedent's real and personal property. TEX. PROB. CODE ANN. § 54.

In any event, even under the second part of the Crowson test, the judgment is interlocutory. The second part of the Crowson test requires that, 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. The order in the present case may logically be considered a part of the proceeding to determine all of James' heirs, and Wanda's pleadings identify other heirs, the rights of whom the judgment does not address.

Neither party has contested the finality of the judgment, and both sides contended at oral argument the judgment is final. Because this action meets the requirements for severance, see Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996), and in the interest of judicial efficiency, we sever this action from the probate action in the County Court of Franklin County.

We now turn to the merits of Rosa's appeal. In her motion for summary judgment, Wanda alleged the following: James was married to Rosa from 1979 to 1990; this marriage ended by decree of divorce on June 1, 1990; under the terms of the divorce decree, James was responsible for paying child support, and did so until his death; and Wanda married James in 1995.

In 1992, Rosa filed a motion to enforce the divorce decree, to increase child support, and to obtain permission to change the child's school and residence. In the course of that proceeding, James filed a statement with the court in which he referred to Rosa as his "former wife." At a hearing to ratify a settlement agreement in that case, Rosa's attorney referred to James as her "ex-husband," the man "who was your husband," and her "husband at that time."

In 1993, James was involved in litigation stemming from an automobile accident. In response to an interrogatory requesting his marital status and spouse's name, he responded he was divorced. He also gave a sworn statement in which he stated he was divorced.

On income tax filings with the Internal...