William Scott Feagan, as Independent of the Estate of Patty Lou Feagan v. Patricia Dianne Wilson and Stephen Wynne Feagan, Jr.

Order filed May 13, 2021

In The

Eleventh Court of Appeals
__________

No. 11-21-00059-CV
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WILLIAM SCOTT FEAGAN, AS INDEPENDENT EXECUTOR
OF THE ESTATE OF PATTY LOU FEAGAN, DECEASED,
ET AL., Appellants
V.
PATRICIA DIANNE WILSON AND STEPHEN WYNNE
FEAGAN, JR., Appellees

On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 023710

ORDER
On April 20, 2021, Appellants, who are the plaintiffs below, filed a petition
for permissive appeal in this court. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(d) (West Supp. 2020); TEX. R. APP. P. 28.3. In the petition, Appellants ask
this court to review an April 6, 2021 interlocutory order in which the trial court
granted Appellees’ motion for partial summary judgment. Appellees, who are the
defendants below, oppose this court’s granting of the petition for permissive appeal.
 We conclude, however, that Appellants have met the requirements for a
permissive appeal under Section 51.014(d) of the Civil Practice and Remedies Code,
Rule 28.3 of the Texas Rules of Appellate Procedure, and Rule 168 of the Texas
Rules of Civil Procedure. Specifically, the trial court granted permission for the
appeal of the interlocutory order, identified a controlling question of law as to which
there is a substantial ground for difference of opinion, and explained why an
immediate appeal may materially advance the ultimate termination of the litigation.
See TEX. R. CIV. P. 168; see also CIV. PRAC. & REM. § 51.014(d); TEX. R.
APP. P. 28.3(d)(4). Furthermore, we agree with the trial court and Appellants that
the order to be appealed appears to involve a controlling question of law as to which
there is a substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the litigation. See
CIV. PRAC. & REM. § 51.014(d). Accordingly, we grant the petition for permissive
appeal on the issue specified in the trial court’s order. In its order, the trial court
stated:
1. The Court identifies the application of res judicata in this case
as a question of law over which there is a substantial ground for
disagreement. The application of res judicata would effectively bar
Plaintiffs from challenging that the ownership of Feagan Brothers
partnership was fully resolved in Cause No. 20,244 in this Court, and
from challenging the binding effect of the stipulations and judgment
entered in Cause No. 20,244 in this Court. The existence of Feagan
Brothers partnership is the major dispute in this case.
2. An immediate appeal of the granting of the res judicata
defensive use and the res judicata offensive use will materially advance
the ultimate termination of this litigation because:
a. The existence and ownership of Feagan Brothers
partnership is the central question to Defendants’ causes
of action to quiet title and declaratory judgment;
b. The existence and ownership of Feagan Brothers
partnership is a central question to Plaintiffs’ various
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 causes of action for breach of fiduciary duty, self-dealing,
fraud, and negligence; and,
c. A long and expensive retrial may be avoided.
3. Furthermore, an immediate appeal will materially advance the
ultimate termination of this litigation by determining the application of
res judicata before proceeding further with the remaining issues in this
case. If the granting of partial summary judgment on the ground of res
judicata is not sustainable on appeal, that decision should be made
before a trial on the remaining issues takes place. Otherwise, a
complete retrial of this case may become necessary if an appellate court
determines, on appeal after trial, that res judicata should not bar
Plaintiffs from challenging the existence and ownership of Feagan
Brothers partnership.
Pursuant to Rule 28.3(k), Appellants’ notice of appeal is deemed to have been
filed under Rule 26.1(b) on the date of this order, May 13, 2021. See TEX. R.
APP. P. 26.1(b). The appeal will be governed by the rules applicable to accelerated
appeals. See TEX. R. APP. P. 28.3(k). The appellate record is due to be filed in this
court within ten days after the date of this order. See TEX. R. APP. P. 26.1(b), 35.1(b).

PER CURIAM

May 13, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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