Dr. Glenn Martin Haluska, Individually and as Trustee of the Carolyn Ann Saylor Haluska Spouse's Trust and the Carolyn Ann Saylor Haluska Family Trust v. Elizabeth Ann Haluska-Rausch and William Andrew Haluska

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00312-CV

Dr. Glenn Martin Haluska, Individually and as Trustee of the Carolyn Ann Saylor
Haluska Spouse’s Trust and the Carolyn Ann Saylor Haluska Family Trust, Appellant

v.

Elizabeth Ann Haluska-Rausch and William Andrew Haluska, Appellees

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-10-001523, HONORABLE GUY S. HERMAN, JUDGE PRESIDING

MEMORANDUM OPINION

Appellees William Andrew Haluska and Elizabeth Haluska-Rausch (“the Haluska

children”) have filed a motion to dismiss the appeal, arguing that it is interlocutory and does not fall

within any exceptions to the general rule that appeals may only be taken from final judgments. We

agree and dismiss the appeal for want of jurisdiction.

This case arises out of a suit filed by the Haluska children against their father,

appellant Dr. Glenn Haluska (“Glenn”), seeking to have him removed as trustee of two trusts created

by their mother in her last will and testament. The Haluska children alleged that Glenn had breached

his fiduciary duties owed as trustee. They sought to have Glenn removed, to be appointed as

successor co-trustees, and to recover attorney’s fees under the Texas Trust Code. The trial court

signed an order “granting plaintiffs’ motion for partial summary judgment,” which removed Glenn

as trustee and appointed the Haluska children as successor co-trustees. The order did not address
the Haluska children’s claim for attorney’s fees. Glenn filed a notice of accelerated appeal, stating

that section 51.014(a)(1) of the civil practice and remedies code “authorizes an accelerated appeal

from an interlocutory order ‘appointing a trustee.’” See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(1) (West 2008). Several months later, the trial court held a hearing and heard argument

from the parties about whether the Haluska children had improperly administered the trusts’ accounts

or had “shown an inability to administer financial matters.” In response, the trial court signed

another order appointing an “interim trustee.”

The Haluska children contend in their motion to dismiss that they did not seek and

the trial court did not grant summary judgment on their claim for attorney’s fees and, therefore, an

issue remains live in the trial court. They further argue that although section 51.014(a)(1) allows for

an interlocutory appeal from an order appointing an original trustee, it does not permit an

interlocutory appeal from an order appointing a successor trustee. Glenn responds that the order

addressed the Haluska children’s substantive claims, which sought his removal and their

appointment. Because the only issue remaining is for attorney’s fees, he argues, we should consider

the trial court’s order to be final and appealable. He further argues that even if the order is

interlocutory, section 51.014 and the probate code allow for the appeal.

In McNally v. Guevara, the supreme court examined whether a document entitled

“judgment,” which granted the defendants’ motion for summary judgment “in all things” and

awarded costs against the plaintiff, should be considered final and appealable. 52 S.W.3d 195, 195-96

(Tex. 2001). The motion for summary judgment addressed only the defendants’ counterclaim for

an easement and did not address their claim for attorney’s fees; the court’s conclusion that the

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defendants should prevail on their easement claim necessarily addressed the plaintiff’s original

claim. See id. The court stated that nothing in the judgment, other than the costs award, suggested

that the trial court “intended to deny the defendants’ claim for attorney’s fees,” and concluded,

“[b]ecause the judgment does not appear final on its face, and because it did not dispose of the

defendants’ claim for attorney fees, it was not an appealable judgment.” Id. at 196.

The order here is very similar. It is captioned, “Order Granting Plaintiffs’ Motion for

Partial Summary Judgment,” it does not address the Haluska children’s claim for attorney’s fees, and

does not contain any language showing that the trial court intended the order to be final and

appealable. See id. We conclude that the order Glenn seeks to appeal is interlocutory, and thus can

only be appealed if it falls within section 51.014 or another exception.1

Section 51.014(a)(1) allows for an interlocutory appeal from an order that “appoints

a receiver or trustee.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a). Courts that have addressed

the issue of whether this provision encompasses orders appointing successor receivers or trustees

have concluded that it does not, reasoning that appellate courts must strictly construe statutes

granting jurisdiction over interlocutory appeals. See Epstein v. Hutchinson, No. 01-03-00797-CV,

2004 Tex. App. LEXIS 6899, at *6 (Tex. App.—Houston [1st Dist.] July 23, 2004, pet. denied)

(mem. op.) (citing Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 688 (Tex. App.—Houston

[1st Dist.] 2003, no pet.)); In re Estate of Dillard, No. 07-00-00504-CV, 2001 Tex. App. LEXIS 775,

at *4 (Tex. App.—Amarillo Feb. 5, 2001, no pet.) (not designated for publication) (“Although the

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Our conclusion is further bolstered by the court’s later order appointing an interim trustee
to sort out whether the children had mismanaged the trusts since being named successor trustees.

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appointment of a trustee is an appealable interlocutory order pursuant to section 51.014(a)(1), the

grandchildren note that an order appointing a successor trustee, as here, is not appealable under

section 51.014(a).”); Swate v. Johnston, 981 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998,

no pet.) (“Texas courts have consistently held, when construing predecessor statutes with identical

language, that an interlocutory order appointing a successor to a permanent receiver is not

appealable.”).2 Thus, section 51.014(a)(1) does not bestow jurisdiction over this appeal.

Finally, we address Glenn’s argument that this should be considered an appealable

order because it disposes of all the issues in a particular phase of a probate proceeding. See Logan v.

McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied) (quoting Crowson v.

Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). In most kinds of trial proceedings, there is only one

final order or judgment rendered. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).

Probate proceedings are an exception to this general rule because a probate court must make a series

of decisions throughout the administration of an estate. See Logan, 21 S.W.3d at 688. However,

that exception does not apply here. First, this proceeding concerns the administration of trusts and

could have been brought in the district court as well as the probate court. See Tex. Prop. Code Ann.

§ 115.001 (West Supp. 2011). Second, even if the probate exception applied to this cause, the orders

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See also First Nat’l Bank v. First State Bank, 456 S.W.2d 173, 174 (Tex. Civ.
App.—Texarkana 1970, writ dism’d) (“Two Texas Civil Appeals Courts, considering language in
a predecessor statute that is identical with that of the first section of the present statute governing
appeals from interlocutory orders in receivership proceeding, concluded an order appointing a
successor to a permanent receiver is not appealable.”); Benningfield v. Benningfield, 155 S.W.2d 827,
828 (Tex. Civ. App.—Austin 1941, no writ) (“the right of appeal is given to test the validity of the
[original] order taking custody of the property by a receiver, not the propriety of the particular
selection of the receiver so appointed”).

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in place have not disposed of all of the issues raised by the children. See Logan, 21 S.W.3d at 688.

The children sought Glenn’s removal, their appointment, and attorney’s fees. As the case stands

now, the trial court has removed Glenn and appointed an interim trustee, leaving the children named

as trustees but without the actual authority to act as trustees; the issue of attorney’s fees has not been

addressed. Thus, even if the probate exception to the one-judgment rule applied here, the court has

not rendered a judgment disposing of all of the issues raised in this “phase” of the proceeding. See

Caroom v. Coleman, No. 03-10-00837-CV (Tex. App.—Austin July 22, 2011, n.p.h.). Thus, we

may not exercise jurisdiction under the probate exception to the one-judgment rule.

Because the order is interlocutory, not final and appealable, and because section

51.014(a)(1) does not permit us to exercise jurisdiction from interlocutory appeals of orders

appointing successor trustees or receivers, we must dismiss the appeal for want of jurisdiction.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Henson and Goodwin

Dismissed for Want of Jurisdiction

Filed: January 24, 2012

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