Fourth Court of Appeals
San Antonio, Texas
September 2, 2021
No. 04-21-00150-CV
IN THE ESTATE OF MARIA LUISA AGUILAR,
From the County Court At Law No 1, Webb County, Texas
Trial Court No. 2020PB5000085-L1
Honorable Hugo Martinez, Judge Presiding
ORDER
Sitting: Rebeca C. Martinez, Chief Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
This appeal arises from a probate proceeding. On April 16, 2021, Appellant Roberto
Aguilar, Jr., filed a notice of appeal. His notice of appeal did not “state the date of the judgment
or order appealed from” and was thus defective. See TEX. R. APP. P. 25.1(d)(2). On May 18,
2021, Appellee Karla Belen Garcia moved to dismiss this appeal for lack of jurisdiction. On June
18, 2021, we ordered Aguilar to show cause why his appeal should not be dismissed.
On July 1, 2021, Aguilar filed “Appellant’s First Amended Notice of Appeal and
Response to the Motion to Dismiss.” He amended his notice of appeal to state that he was
appealing the following orders by the probate court:
1. The probate court’s September 16, 2020 order appointing Garcia Dependent
Administratrix of the Estate of Maria Luisa Aguilar;1
2. The probate court’s February 9, 2021 order that granted Garcia’s motion to enforce
the Rule 11 Settlement Agreement with Aguilar;
3. The probate court’s order that “allowed Appellee [Garcia] to sell the real property of
Maria Luisa Aguilar,” which we assume is referring to the probate court’s February
19, 2021 Order of Sale of Real Property;
4. The probate court’s “refusal to have Appellant’s claim to his homestead pursuant to
the Texas Constitution”;2
5. The probate court’s “order that evicted Appellant from his homestead”;3
1
A signed copy of this order does not appear in the clerk’s record.
2
No order relating to this issue appears in the clerk’s record.
3
No order evicting Appellant Aguilar appears in the clerk’s record.
6. The probate court’s “order denying Appellant’s objection to the inventory and
appraisement of the Estate of Maria Luisa Aguilar.”4
Pursuant to Texas Rule of Appellate Procedure 25.1(g), an “amended notice of appeal
correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any
time before the appellant’s brief is filed.” TEX. R. APP. P. 25.1(g). We note that at the time
Aguilar filed his amended notice of appeal, his appellant’s brief was not due and had not been
filed. We conclude that Rule 25.1(g) applies as his amended notice was correcting “a defect or
omission” in his original notice of appeal.
As Aguilar points out in his responses to Appellant Garcia’s motion to dismiss for lack of
jurisdiction, probate cases are an exception to the “one final judgment” rule. De Ayala v. Mackie,
193 S.W.3d 575, 578 (Tex. 2006). In such cases, “multiple judgments final for purposes of
appeal can be rendered on certain discrete issues.” Id. (quotations omitted). “The need to review
controlling, intermediate decisions before an error can harm later phases of the proceeding has
been held to justify this rule.” Id. (quotations omitted). However, not every interlocutory order in
a probate case is appealable. Id. The Texas Supreme Court has noted that “determining whether
an otherwise interlocutory probate order is final enough to qualify for appeal has proved
difficult.” Id. In the past, courts relied on a “substantial right” test to determine whether an
interlocutory probate order should be appealable: under that test, once the probate court
adjudicated a “substantial right,” the order was appealable. Id. In 1995, the supreme court
attempted to clarify this test, noting that “while adjudication of a ‘substantial right’ was one
factor to be considered, equally important” was “earlier precedent requiring that the order
dispose of all issues in the phase of the proceeding for which it was brought.” Id. Thus, “[t]o
sidestep ‘potential confusion’ about the appropriate test for jurisdiction,” the court adopted the
following test:
If there is an express statute, such as one for complete heirship
judgment, declaring the phase of the probate proceedings to be
final and appealable, that statute controls. Otherwise, if 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, then the probate
court order is interlocutory.
Id.
In De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006), the supreme court held that the
trial court’s order denying a plea to the jurisdiction and refusal to remove an executor was not
appealable. The supreme court explained that “an order denying a motion to dismiss an entire
proceeding for want of subject-matter jurisdiction is more like a prelude than a finale.” Id. “It
certainly does not dispose of a claim that, if asserted independently, would be the proper subject
of a lawsuit.” Id. It noted further that under Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995),
“the trial court’s order was interlocutory because it did not dispose of all parties or issues in a
particular phase of the proceedings.” De Ayala, 193 S.W.3d at 579. According to the supreme
court, “[b]ecause an order denying a plea to the jurisdiction and refusing to remove an executor
does not end a phase of the proceedings, but sets the stage for the resolution of all proceedings,
the order is interlocutory.” Id.
4
The probate court’s order approving inventory does not appear in the clerk’s record.
In considering the orders that Appellant Aguilar lists in his amended notice of appeal, we
note that the clerk’s record does not include (1) an order denying Aguilar’s homestead claim; (2)
an order evicting him; or (3) an order approving inventory. Further, the clerk’s record does not
include a signed copy of the probate court’s order appointing Appellee Garcia as dependent
administratrix.5
The clerk’s record does include the probate court’s February 9, 2021 order granting
Appellee Garcia’s motion to enforce Rule 11 Settlement Agreement and the probate court’s
February 19, 2021 order granting Garcia’s application to sale real property. In reviewing the
substance of the February 9, 2021 order, the probate court concluded the Rule 11 Settlement
Agreement was enforceable and ordered Aguilar to do the following:
1. Sign the Assignment of Interest by February 12, 2021, which assigned “any interest
in any property which [Aguilar] may be entitled to receive through the estate of Maria
Luisa Aguilar” to his “mother in law Maria Magdalena Garcia”;
2. Remove specified items from the real property at issue; and
3. Sign the Family Settlement Agreement and Release Agreement by February 12, 2021.
The probate court’s February 9, 2021 order further stated that upon performing the above items,
Aguilar would receive a check in the amount of $30,000. We conclude that this February 9, 2021
order enforcing the Rule 11 Agreement ended a phase of the proceedings and was thus
appealable. See De Ayala, 193 S.W.3d at 579.
Aguilar filed a timely motion for new trial on February 11, 2021. His motion for new trial
argued the Rule 11 Settlement Agreement should be set aside. Aguilar then filed a timely notice
of appeal on April 16, 2021. Thus, we conclude Aguilar has invoked this court’s jurisdiction to
hear his appeal.
Appellee Garcia argues that any appeal by Aguilar of the February 19, 2021 order
regarding the sale of real property (which was signed after the February 9, 2021 order) should be
dismissed for lack of jurisdiction. For support, Garcia cites Rainbow Group, Ltd. v. Wagoner,
219 S.W.3d 485, (Tex. App.—Austin 2007, pet. denied), which we find inapplicable to the
present facts. Wagoner relates to interlocutory orders in a non-probate context. In our view, it
would be a waste of judicial resources to disallow Appellant Aguilar in this case to amend his
notice of appeal to include a later signed order in the same probate proceeding. Thus, we decline
to grant Appellee Garcia’s request to dismiss any appeal by Aguilar relating to the February 19,
2021.
For the reasons stated above, we DENY Appellee Garcia’s motion to dismiss. We further
note that both Appellant Aguilar and Appellee Garcia have requested sanctions be assessed
against the other side. Both motions for sanctions are DENIED.
Having determined that we have jurisdiction over this appeal, we REINSTATE appellate
deadlines. The reporter’s record is due on October 4, 2021.
_________________________________
Liza A. Rodriguez, Justice
5
If Appellant Garcia intends to appeal these orders, need to request a supplemental clerk’s record and show that we
have jurisdiction to hear any such appeal.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of September, 2021.
___________________________________
MICHAEL A. CRUZ, Clerk of Court