John H. Roach, Individually and as Sole True Trustee of the Credit Shelter Trust and the Marital Trust v. Patricia S. Roach, Individually and as Putative Co-Executor of the Estate of Richard H. Roach, as Putative Co-Trustee of the Credit Shelter Trust

DISMISS and Opinion Filed February 15, 2022

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00754-CV

JOHN H. ROACH, INDIVIDUALLY AND AS SOLE TRUE TRUSTEE OF
THE CREDIT SHELTER TRUST AND THE MARITAL TRUST, Appellant
V.
PATRICIA S. ROACH, INDIVIDUALLY AND AS PUTATIVE CO-
EXECUTOR OF THE ESTATE OF RICHARD H. ROACH, DECEASED,
AS PUTATIVE CO-TRUSTEE OF THE CREDIT SHELTER TRUST AND
THE MARITAL TRUST, AND AS ADMITTED GENERAL PARTNER OF
THE FLP, PATRICIA ROACH TACKER, INDIVIDUALLY AND AS
PUTATIVE CO-EXECUTOR OF THE ESTATE OF RICHARD H. ROACH,
DECEASED, AS PUTATIVE CO-TRUSTEE OF THE CREDIT SHELTER
TRUST AND THE MARITAL TRUST, AND AS ADMITTED GENERAL
PARTNER OF THE FLP, AND TRF GP, LLC, TITULAR GENERAL
PARTNER OF THE FLP, Appellees

On Appeal from the Probate Court No. 1
Dallas County, Texas
Trial Court Cause No. PR-21-00540-1

MEMORANDUM OPINION
Before Justice Molberg, Justice Goldstein, and Justice Smith
Opinion by Justice Goldstein
This is an appeal from the trial court’s August 2, 2021 interlocutory order in

an ancillary probate proceeding initiated by appellant. Before the Court is appellees’

motion to dismiss the appeal for lack of jurisdiction and appellant’s response.

Although we disagree with appellees’ reasons for dismissal, we nonetheless dismiss
the appeal because appellant fails to demonstrate in his response that we have

jurisdiction.

Background

Appellant filed an ancillary proceeding to a pending probate case alleging

numerous causes of action against appellees. In addition to such causes of action

as breach of fiduciary duty, breach of a family partnership agreement, and

negligence, appellant alleged and sought a declaratory judgment that appellees

engaged in an alleged scheme with the decedent’s attorney to manipulate the

decedent into modifying two codicils to his will after the decedent had become

cognitively impaired. The decedent’s attorney drafted the modified codicils. The

challenged portions of the codicils were modified to replace appellant with the

decedent’s attorney as successor independent co-trustee of the trusts, as successor

independent co-executor, and as limited purpose fiduciary of the marital trust with

the power to direct distributions of the trust principal.

Viewing appellant’s challenges to the codicils as a will contest, appellees

filed a motion for partial summary judgment asserting that appellant’s declaratory

judgment claim related to the codicils was barred by the two-year statute of

limitations. Appellant then filed a cross-motion for summary judgment on his

claim for declaratory judgment that the challenged provisions in the codicils and

the probate court’s order admitting them to probate were void from the beginning.

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In an order signed on August 2, 2021, the trial court granted appellees’ motion and

denied appellant’s. Appellant filed a notice of appeal on August 31.

Appellees assert we lack jurisdiction over the appeal because (1) appellant did

not obtain permission to appeal the interlocutory order, see TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(d), and (2) did not timely file his notice of appeal, see TEX. R.

APP. P. 26.1(b) (notice of appeal in accelerated appeal due within twenty days of

date of order). In his response to the motion to dismiss, appellant asserts that this is

an ordinary appeal pursuant to special rules relating to probate proceedings and asks

that we retain jurisdiction over the appeal. For reasons stated below, we conclude

the appealed order is interlocutory and not subject to appeal under the special rules

for probate proceedings.

The Law

Generally, this Court has jurisdiction only over final judgments or

interlocutory orders as permitted by statute. See Lehmann v. Har–Con, 39 S.W.3d

191, 195 (Tex. 2001). However, a probate order on a discrete issue is appealable

before the entire proceeding is concluded if an express statute declares that phase of

the proceeding from which the order arises to be final and appealable or if the order

disposes of all the parties or issues for which the particular part of the proceeding

was brought. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)

(quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). To lessen the

inherent difficulties in applying this test, appellate courts may consider whether the

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adjudicated claim could be properly severable. See Crowson, 897 S.W.2d. at 783.

A claim is properly severable if (1) the controversy involves more than one cause of

action, (2) the severed claim is one that would be the proper subject of a lawsuit if

independently asserted, and (3) the severed claim is not so interwoven with the

remaining action that they involve the same facts and issues. See In re State, 355

S.W.3d 611, 614 (Tex. 2011) (orig. proceeding).

Discussion

Appellant asserts we do have jurisdiction. He relies on a somewhat factually

similar case. See In re Estate of Florence, 307 S.W.3d 887, 889 (Tex. App.—Fort

Worth 2010, no pet.). Florence involved a dispute among heirs as to the meaning

of a term in a will. The appellant asserted a statute of limitations defense and the

parties filed cross-motions for summary judgment. The probate court denied the

appellant’s motion for summary judgment and granted the appellees’ cross-motion.

Id. at 889-90. The trial court’s ruling on the competing motions for summary

judgments left unresolved the meaning of the disputed term. Although the trial court

in Florence did not finally resolve the heirs’ dispute, the court of appeals reached

the merits of the interlocutory appeal. In doing so, it did not provide any analysis of

De Ayala and Crowson to demonstrate its jurisdiction.1 Appellant asks this Court to

reach the merits as the court did in Florence but provides no argument for how we

1
The court of appeals addressed its jurisdiction only in a footnote stating “This is an interlocutory
appeal of a summary judgment and cross-summary judgment in a probate case.” with cites to De Ayala and
Crowson.
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have jurisdiction to do so. Applying the standards set forth in those cases to the facts

here, however, we conclude the order is not an appealable probate order.

There is no express statute declaring the underlying ancillary probate

proceeding final and appealable and appellant does not contend otherwise.

Accordingly, we turn to the criteria for severance to the facts in this case to determine

whether we have jurisdiction over the interlocutory summary judgment order. See

Crowson, 897 S.W.2d. at 783.

The factual underpinnings of appellant’s declaratory judgment claim are so

interwoven with many of the claims still pending. The decedent’s attorney and the

alleged scheme between him and appellees is the focus of that claim and is also a

factor in many of appellant’s other claims. For example, the alleged scheme between

appellees and the decedent’s attorney leading to the modified codicils is a significant

factor to appellant’s breach of fiduciary duty claim, breach of a family partnership

agreement claim, and negligence claim, among others. Because of the

interrelatedness of appellant’s numerous claims, we hold the order addressing only

one of those claims is not subject to severance. See In re State, 355 S.W.3d at 614.

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 Conclusion

Having concluded for the reasons stated above that the interlocutory order is

not an appealable probate order, we dismiss the appeal for want of jurisdiction. See

TEX. R. APP. P. 42.3(a).

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE

210754F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN H. ROACH, On Appeal from the Probate Court
INDIVIDUALLY AND AS SOLE No. 1, Dallas County, Texas
TRUE TRUSTEE OF THE CREDIT Trial Court Cause No. PR-21-00540-
SHELTER TRUST AND THE 1.
MARITAL TRUST, Appellant Opinion delivered by Justice
Goldstein. Justices Molberg and
No. 05-21-00754-CV V. Smith participating.

PATRICIA S. ROACH,
INDIVIDUALLY AND AS
PUTATIVE CO-EXECUTOR OF
THE ESTATE OF RICHARD H.
ROACH, DECEASED, AS
PUTATIVE CO-TRUSTEE OF THE
CREDIT SHELTER TRUST AND
THE MARITAL TRUST, AND AS
ADMITTED GENERAL PARTNER
OF THE FLP, PATRICIAL ROACH
TACKER, INDIVDUALLY AND
AS PUTATIVE CO-EXECUTOR
OF THE ESTATE OF RICHARD H.
ROACH, DECEASED, AS
PUTATIVE CO-TRUSTEE OF THE
CREDIT SHELTER TRUST AND
THE MARITAL TRUST, AND AS
ADMITTED GENERAL PARTNER

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OF THE FLP, AND THE TRF GP,
LLC, TITULAR GENERAL
PARTNER OF THE FLP, Appellees

In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.

It is ORDERED that appellees PATRICIA S. ROACH, INDIVIDUALLY
AND AS PUTATIVE CO-EXECUTOR OF THE ESTATE OF RICHARD H.
ROACH, DECEASED, AS PUTATIVE CO-TRUSTEE OF THE CREDIT
SHELTER TRUST AND THE MARITAL TRUST, AND AS ADMITTED
GENERAL PARTNER OF THE FLP, PATRICIAL ROACH TACKER,
INDIVDUALLY AND AS PUTATIVE CO-EXECUTOR OF THE ESTATE OF
RICHARD H. ROACH, DECEASED, AS PUTATIVE CO-TRUSTEE OF THE
CREDIT SHELTER TRUST AND THE MARITAL TRUST, AND AS
ADMITTED GENERAL PARTNER OF THE FLP, AND THE TRF GP, LLC,
TITULAR GENERAL PARTNER OF THE FLP recover their costs of this appeal
from appellant JOHN H. ROACH, INDIVIDUALLY AND AS SOLE TRUE
TRUSTEE OF THE CREDIT SHELTER TRUST AND THE MARITAL TRUST.

Judgment entered February 15, 2022

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