Court Holds That Order Allowing A Successor Trustee And Reinstating A Prior Trustee Is Appealable

Originally published by David Fowler Johnson.

In In re Tipps, an elderly woman’s son became trustee of a trust due to her incompetency, and the son and his brother went to a mediation concerning a guardianship proceeding and other issues. No. 05-14-01495-CV, 2016 Tex. App. LEXIS 4014 (Tex. App.—Dallas April 15, 2016, no pet. history). The parties agreed that a corporate trustee would be a successor trustee, and the court entered an order approving of same. Later, disputes arose, and the successor corporate trustee filed a motion to resign and to reappoint the son as a successor trustee. After a hearing, the trial court granted the motion, and the brother appealed.

The first issue the court of appeals addressed was its jurisdiction to review the order. The son argued that no statute makes the order a final judgment or grants the court of appeals jurisdiction to review the order and that the trial court’s order failed to dispose of the brother’s claim for reimbursement of ongoing expenses related to his visits to his mother’s nursing home and the repair of her car. The court stated:

Generally, appeals may be taken only from final judgments. 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.” Not every interlocutory order in a probate case is appealable, however, and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal has proved difficult.

Id. The court then considered whether any statute granted an immediate right of appeal from the discharge of a successor trustee and the reinstatement of a trustee. The court noted that “Section 51.014(a)(1) of the Texas Civil Practice & Remedies Code allows for interlocutory appeal from an order that ‘appoints a receiver or trustee.’ However, appellate courts have consistently held the statute does not apply to orders appointing successor trustees.”  Id. The court agreed, and turned to whether the order in this case was final enough to qualify for appeal.

The court looked at the brother’s claims for reimbursement and held that:

Steven’s remaining requests that were not addressed by the trial court do not raise any issue on which he could have filed a separate claim. We also note that no legal authority provides Steven with the right of such reimbursement as a person authorized pursuant to a medical power of attorney, nor does the medical power of attorney Doris executed, although Steven references the common law right of quantum meruit in his appellate brief. Under these circumstances, we conclude no remaining parties or issues remain to be disposed of by the trial court’s orders.

Id.  The court then turned to the merits of the brother’s claims, and disagreed with the brother.  The court affirmed the order in all things.

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