Opinion
No. 04-16-00351-CV
07-20-2016
IN THE ESTATE OF JESUS N. NAVARRO III, DECEASED
From the Probate Court No 2, Bexar County, Texas
Trial Court No. 2015-PC-1902
Honorable Tom Rickhoff, Judge Presiding
ORDER
On June 6, 2016, Jesus Navarro IV, Independent Executor, filed a notice of appeal stating he intends to appeal the trial court's "Order Setting Apart Exempt Property Before Approval of Inventory" signed on March 7, 2016. The order appears to be interlocutory, and therefore, does not appear to be a final, appealable order.
Generally, appeals may be taken only from final judgments. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006); In re Estate of Valdez, 04-13-00854-CV, 2014 WL 1233684, at *1 (Tex. App.—San Antonio Mar. 26, 2014, no pet.). Probate proceedings are an exception to the "one final judgment" rule. Mackie, 193 S.W.3d at 578. In probate cases, "multiple judgments final for purposes of appeal can be rendered on certain discrete issues." Id. (citation omitted). However, not every interlocutory order in a probate case is appealable. Id. In De Ayala, the Texas Supreme Court adopted the following test to determine whether appellate jurisdiction exists over an order arising from a probate proceeding:
If there is an express statute, 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.Id. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995)); In re Estate of Valdez, 2014 WL 1233684, at *1. Thus, if there is no express statute, a probate court order is final and appealable only if it disposes of all parties or issues in a particular phase of the proceedings. De Ayala, 193 S.W.3d at 579.
Further, it appears appellants' notice of appeal is not timely filed. If allowed, appellants' appeal from the trial court's "Order Setting Apart Exempt Property Before Approval of Inventory" is an accelerated, interlocutory appeal. The trial court signed the order on March 7, 2016. It appears the notice of appeal was due March 27, 2016. See TEX. R. APP. P. 26.1(b). A motion for extension of time to file the notice of appeal was not filed. See TEX. R. APP. P. 26.3. Appellant filed this notice of appeal on June 6, 2016.
A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997) (construing the predecessor to Rule 26). But "once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." Id.
We ORDER appellant to show cause on or before July 29, 2016: (1) why this appeal falls under the probate proceeding's exception to the final judgment rule, and therefore, should not be dismissed for lack of jurisdiction; and (2) why this appeal was timely filed, and therefore, should not be dismissed for lack of jurisdiction.
If appellant fails to respond to this order by the date ordered, this appeal will be dismissed. See TEX. R. APP. P. 42.3(c). The briefing schedule is suspended pending determination whether this Court holds jurisdiction over this appeal.
/s/_________
Jason Pulliam, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of July, 2016.
/s/_________
Keith E. Hottle
Clerk of Court