Opinion
No. 14-04-00021-CV
Memorandum Opinion filed August 12, 2004.
On Appeal from the Probate Court No. 1, Harris County, Texas, Trial Court Cause No. 330,587-402.
Dismissed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Georgette Taylor ("Georgette") appeals from the probate court's denial of her application for turnover relief and original petition. In addition to alleging a breach of contract claim, Georgette filed in her petition an application asking the trial court to order Michelle Taylor, the administratrix of her exhusband's estate, to turnover corporate stock securing a debt created by the couple's divorce decree. We dismiss for want of jurisdiction.
As part of Gary and Georgette's divorce decree, Gary Taylor was granted all of the common stock shares of the "Taylor Upholstery Supply Company." In exchange, Georgette received an equitable judgment against Gary for $225,000.00, which represented her interest in the corporation, i.e., the value of 49% of the common stock. To ensure payment of the judgment, Gary received the shares subject to Georgette's security interest. At the time of Gary's death, a portion of the judgment remained unpaid.
After Gary's death, Georgette and Michelle, Gary's new wife, entered into a Rule 11 agreement with regard to the administration of the estate. Subsequently, Georgette filed a matured secured claim on August 9, 2002, under section 306 of the Probate Code seeking payment of the judgment's outstanding balance. This claim was rejected because it contained defects of form. A second claim was filed in late September 2002. It was rejected by operation of law. A third claim was filed in April 2003, outside of the 90-day statute of limitations provided by section 313 of the Probate Code. Georgette then filed her application for turnover relief and original petition on May 28, 2003. In her original petition, Georgette (1) alleged a breach of contract cause of action based upon Gary's failure to make payments on the judgment created by the divorce decree, and (2) sought a turnover order of 49% of the common stock shares which secured the debt. The trial court held a hearing on October 16, 2003, where the parties argued the merits of Georgette's application for turnover relief. The following day, October 17, 2003, Georgette filed a first amended petition. In addition to seeking turnover relief, Georgette asserted new causes of action for breach of the Rule 11 agreement and conversion, sought a declaratory judgment, and prayed for attorney fees. On November 24, 2003, the trial court entered an "order denying plaintiff's original petition and application for turnover relief."
We do not decide whether the amended petition was timely filed, whether appellant was required to request leave to file, or whether the trial court was required to consider the same.
Georgette presents four points of error on appeal. Under points of error one, two, and three, Georgette argues that section 313 of the Probate Code does not bar her claim. First, she asserts that her claim falls within an exception to the Probate Code. Second, Georgette argues she is entitled to the stock because she holds superior title. As such, Georgette asserts that a claim based on superior title need not be presented to the probate court, and even if presented, it is not subject to the 90-day statute of limitations found in section 313. In her final point of error, Georgette complains the trial court disposed of her breach of a Rule 11 agreement without hearing evidence on the claim.
After reviewing the legal issues presented, we conclude this appeal is not properly before us for lack of a final appealable judgment. While a defendant may utilize a number of devices to defeat a plaintiff's claim for relief without having to resort to trial, none of them were utilized here. See Ulloa v. Davila, 860 S.W.2d 202, 204 (Tex. App.-San Antonio 1993, no writ) (listing written motion for summary judgment, special exceptions, plea in abatement, or other motion seeking dismissal or similar relief). The trial court denied the plaintiff's original petition without the benefit of a trial, motion for summary judgment, or other dispositive proceeding. While a turnover order may be a final appealable order, here appellant's original petition contained an unresolved breach of contract claim. While such claim may or may not be barred by limitations, the trial court is not authorized to dismiss it sua sponte. See id. at 203. Moreover, the trial court's order regarding appellant's request for a turnover order was not severed from the breach of contract claim. Accordingly, unresolved claims remain before the trial court and there is no final appealable judgment.
Accordingly, the appeal is dismissed for want of jurisdiction.