in the Matter of the Estate of Helen Gayle Wells

NO. 12-22-00046-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE ESTATE § APPEAL FROM THE

OF HELEN GAYLE WELLS, § COUNTY COURT AT LAW NO. 3

DECEASED § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
Appellant, Kelcey Melissa Wells, filed a notice of appeal from (1) an April 12, 2019
order excluding expert witness testimony, (2) a June 10, 2019 order granting a partial summary
judgment motion filed by Appellee, Karen Donnell Wells and denying Kelcey’s cross-motion for
partial summary judgment, (3) a September 28, 2021 order granting Karen’s motion for partial
summary judgment, (4) a September 28, 2021 order granting Karen’s no evidence summary
judgment motion on fraudulent inducement, (5) a February 8, 2022 order granting Karen’s
motion for partial summary judgment on lack of standing, (6) a February 8, 2022 order granting
Karen’s motion for partial summary judgment on limitations, and (7) a February 8, 2022 order
granting Karen’s no evidence summary judgment motion on the claim for distributions for
health, education, maintenance, and support. The notice states that the three February 8 orders
“purportedly dispose of all remaining claims and all parties in the case.”
Karen filed a motion to dismiss the appeal on grounds that the trial court has not entered
a final judgment and Kelcey cannot appeal the orders in question. According to Karen, the three
orders dispose of specific, identified claims alleged by Kelcey and contain no language
purporting to dispose of all parties and claims. Karen asserts that she has a pending claim for
declaratory judgment and attorney’s fees, but none of the challenged orders dispose of her
claims. In response, Kelcey denies Karen’s entitlement to attorney’s fees, but “agrees that the
trial court did not enter an order that specifically addresses and disposes of Appellee’s claim for

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attorney’s fees.” Accordingly, she does not object to the appeal being dismissed until the trial
court signs an order addressing Karen’s claim for attorney’s fees.
When “there has not been a conventional trial on the merits, an order or judgment is not
final for purposes of appeal unless it actually disposes of every pending claim and party or unless
it clearly and unequivocally states that it finally disposes of all claims and all parties.” Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “Probate proceedings are an exception to
the ‘one final judgment’ rule; in such cases, ‘multiple judgments final for purposes of appeal can
be rendered on certain discrete issues.’” De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)
(quoting Lehmann, 39 S.W.3d at 192). An interlocutory order on a discrete issue is appealable
if an express statute declares that phase of the proceeding to be final and appealable. Id.
Otherwise, a probate order is final if it disposes of “all parties or issues in a particular phase of
the proceedings.” Id. at 579. “[I]f 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,” the order is not final. Id. at 578 (quoting Crowson v. Wakeham, 897
S.W.2d 779, 783 (Tex. 1995)).
This Court is unaware of any statute that expressly renders the orders appealable as
interlocutory and the parties have identified no such statutes. Nor do the orders dispose of
Karen’s claim for attorney’s fees; consequently, the orders do not amount to a final judgment.
See Palacio for Estate of Palacio v Palacio, No. 05-18-00357-CV, 2019 WL 1785122, at *1
(Tex. App.—Dallas Apr. 24, 2019, no pet.) (mem. op.) (because claims for attorneys’ fees
remained pending, summary judgment orders did not dispose of all parties and issues in
particular phase of probate case). Because the orders do not qualify as appealable interlocutory
orders or a final judgment, we grant Karen’s motion to dismiss and we dismiss the appeal for
want of jurisdiction.
Opinion delivered April 29, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 29, 2022

NO. 12-22-00046-CV

IN THE MATTER OF THE ESTATE OF
HELEN GAYLE WELLS, DECEASED

Appeal from the County Court at Law No. 3
of Smith County, Texas (Tr.Ct.No. 42,565P)

THIS CAUSE came on to be heard on the motion of the Appellee to dismiss
the appeal herein, and the same being considered, it is hereby ORDERED, ADJUDGED and
DECREED by this Court that the motion to dismiss be granted and the appeal be dismissed for
want of jurisdiction, and that the decision be certified to the court below for observance. Each
party shall bear its own costs of appeal.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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