Opinion
Appellate case number: 01-17-00228-CV
07-11-2017
Darla Lexington v. T. Gerald Treece, Independent Executor of the Estate of John M. O'Quinn, Deceased, John M. O'Quinn & Associates, PLLC, Gibbs & Brims, LLP, Needmore River Ranch, LLC, Greg LaMantia and Joseph V. LaMantia, III, SCI Texas Funeral Services, Inc. d/b/a Geo. H. Lewis & Sons Funeral Directors
ORDER OF ABATEMENT Trial court case number: 392247-419 Trial court: Probate Court No. Two of Harris County
Appellant, Darla Lexington, filed a first amended notice of appeal on March 31, 2017, attempting to appeal from six orders from the probate court. Two of the defendants, T. Gerald Treece, Independent Executor of the Estate of John M. O'Quinn, Deceased, and John M. O'Quinn & Associates, PLLC, were dismissed for lack of standing, under TEX. R. CIV. P. 91a. Appellant noted that the notice of appeal may be premature because only final orders from the probate court are appealable, and it is unclear whether all of the orders are final orders for purposes of appeal.
On June 28, 2017, appellant filed a motion to abate the appeal, asking that this Court abate this appeal and remand to permit the probate court to render a final order regarding its Rule 91a orders. Appellant's motion contains a certificate of conference indicating that, while appellees SCI Texas Funeral Services, Inc. and The John M. O'Quinn Foundation and the non-party 91a defendants do not oppose this motion, appellees Gibbs & Bruns, LLP, Needmore River Ranch, LLC, and the LaMantias did not state whether they oppose the motion or not. See TEX. R. APP. P. 10.1(a)(5). Although appellant's motion has been on file with the Court for more than 10 days, no party has responded to it. See id. 10.3(a)(2).
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception to the "one final judgment" rule, in that it is possible to have more than one final, appealable order. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Further, there may be appeals from interim orders rendered on discrete issues before the entire proceeding is concluded. Id. However, not every interlocutory order in a probate case is appealable. Id. An order that merely "sets the stage" for the resolution of proceedings is interlocutory and not appealable. Id. at 579. "If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court." Lehmann, 39 S.W.3d at 206 (citing TEX. R. APP. P. 27.2); see also Markovsky v. Kirby Tower, L.P., No. 01-13-00516-CV, 2015 WL 8942528 at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem. op.) (citing McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001)) (noting appellate court granted appellant's motion to abate appeal to permit trial court to render final judgment on all claims, including attorney's fees).
Accordingly, the Court grants the appellant's motion, abates the appeal, and remands to permit the probate court to render a final and appealable order, disposing of all claims and parties in the underlying suit. See TEX. R. APP. P. 27.2. A supplemental clerk's record containing any final judgment or order shall be filed within 30 days of the date of this order. If a supplemental clerk's record is not filed with this Court within 30 days of the date of this order, appellant shall notify this Court of the status of the proceedings.
This appeal is abated, treated as a closed case, and removed from this Court's active docket. This appeal will be reinstated on this Court's active docket after a supplemental clerk's record that complies with this Order is filed in this Court.
It is so ORDERED. Judge's signature: /s/ Laura C. Higley
[ ] Acting individually [ ] Acting for the Court Date: July 11, 2017