“Respondent permitted the judgment to become final by his failure to invoke the right of appeal.”
How later courts described this case
- “Respondent permitted the judgment to become final by his failure to invoke the right of appeal.”
Written by the judges who cited it.
The opinion
Opinion issued December 31, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00701-CV
———————————
ANAHID PRIGMORE, Appellant
V.
TINA S. MANTOOTH, Appellees
On Appeal from the Probate Court No. 4
Harris County, Texas
Trial Court Case No. 449332
MEMORANDUM OPINION
This is a probate proceeding concerning the estate of Vahak A. Khoikan.
Appellant Anahid Prigmore is Khoikan’s sister. Appellee Tina S. Mantooth was
Khoikan’s common-law wife, and she is the mother of Khoikan’s only child, J.K.,
a minor. Mantooth argues that this court lacks jurisdiction over this appeal because
the notice of appeal was untimely filed. We agree, and we dismiss this appeal for
lack of jurisdiction.
Background and Procedural History
Vahak Khoikan died intestate on May 24, 2016, leaving an estate worth
approximately $10 million. He was survived by his common-law wife, Mantooth;
his son, J.K.; and his sister, Prigmore. Mantooth filed an application for
determination of heirship and for letters of administration. The trial court
appointed an attorney ad litem to represent the interest of any heirs who were
unknown or under a legal disability, including J.K.
Prigmore filed a cross-application for letters of administration, seeking to be
appointed administrator of the estate and asserting that, as J.K.’s paternal aunt, she
was a person “interested” in his welfare. See TEX. EST. CODE § 22.018. Prigmore
also filed an answer in “the interest of the decedent’s minor son and for his
protection as the sole heir” of Khoikan’s estate. She specifically denied that
Mantooth was Khoikan’s spouse, but she admitted that J.K. was Khoikan’s son and
that she had no pecuniary interest in her brother’s estate.
Mantooth filed a motion in limine challenging Prigmore’s standing. She
argued that Prigmore is not her brother’s legal heir and that Prigmore was not
otherwise an “interested person” because she did not represent J.K. in any capacity
and she had no pecuniary interest in the estate or in J.K.’s welfare. On April 6,
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2018, the trial court granted Mantooth’s motion, dismissed Prigmore’s cross-
application for letters of administration, and struck Prigmore’s pleadings from the
record.
Also on April 6, the trial court signed: (1) a judgment declaring heirship and
finding that Mantooth is Khoikan’s surviving spouse and J.K. is his son; (2) an
order approving a family settlement agreement and mutual release and appointing a
permanent dependent administrator; (3) an order setting aside J.K.’s house as his
homestead and ordering that it may not be used to satisfy any debts of the estate;
(4) an order denying Prigmore’s motion for discovery via subpoenas; and (5) an
order denying Prigmore’s motion for genetic testing of J.K.1 On April 19, 2018, the
trial court withdrew the April 6, 2018 judgment declaring heirship in order to
correct an error, and it signed a new judgment declaring heirship. On May 4, 2018,
Prigmore filed a motion for new trial, which was denied on May 15, 2018. On July
31, 2018, Prigmore filed a notice of appeal.
In her brief, Prigmore asserts that she is appealing from all the orders signed
on April 6, 2018, as well as the April 19, 2018 judgment declaring heirship and the
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In her brief, Prigmore asserts that she is appealing from the order granting
Mantooth’s motion in limine as well as the following orders: (1) order setting
aside homestead; (2) order denying motion for genetic testing; (3) order denying
motion for limited discovery via subpoenas; (4) order approving family settlement
agreement and mutual release and appointment of permanent dependent
administrator; (5) judgment declaring heirship; and (6) order denying motion for
new trial.
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May 15, 2018 denial of her motion for new trial. In her brief, Prigmore argues that
there is a disputed question of fact about whether Mantooth was Khoikan’s
common-law wife. Prigmore also argues that the trial court erred by holding that
she lacked standing, and by “holding categorically that a blood relative without a
pecuniary interest lacks standing” under section 22.018 of the Texas Estates Code.
Jurisdiction
Mantooth asserts that this court lacks jurisdiction because the notice of
appeal was untimely filed. In particular, Mantooth argues that the April 6, 2018
order granting the motion in limine, dismissing Prigmore’s claims, and striking her
pleadings was a final order for the purpose of appeal and that the July 31 notice of
appeal was untimely. We agree.
Ordinarily, appeals may be taken only from final judgments. Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “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.’” De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann, 39 S.W.3d at 192).
Because not every interlocutory order in a probate case is appealable, the Texas
Supreme Court has adopted the following test for determining finality:
If there is an express statute, such as the one for the 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
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a part, but one or more pleadings also part of that proceeding raise
issues or parties not disposed of, then the probate order is
interlocutory.
Id. at 578 (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). An
order that dismisses a probate application because the applicant lacks standing “is
in no sense interlocutory.”2 Womble v. Atkins, 331 S.W.2d 294, 298 (1960). An
order dismissing a party because she is not an interested person and therefore lacks
standing is a final, appealable order. Id. at 297; see In re Estate of Adams, No. 14-
12-00064-CV, 2013 WL 84925, at *2 (Tex. App.—Houston [14th Dist.] Jan. 8,
2013, no pet.) (mem. op.) (holding that order granting plea to the jurisdiction was
2
To file or contest a probate proceeding, a person must be “a person interested in
the estate.” Womble v. Atkins, 331 S.W.2d 294, 297–98 (Tex. 1960). A person
who is not interested in the estate would be “an interloper” or a “mere
meddlesome intruder,” whose presence could “deprive real parties at interest of
the right of partitioning their estates and of compromising and settling their
controversies in or out of court.” Logan v. Thomason, 202 S.W.2d 212, 217
(1947); see In re Estate of Adams, No. 14-12-00064-CV, 2013 WL 84925, at *3
(Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.) (mem. op.) (“In the
absence of such an interest, a contestant is a mere meddlesome intruder, and it is
not the policy of the State of Texas to permit those who have no interest in a
decedent’s estate to intermeddle therein.”).
The Estates Code defines “interested person” or “person interested” as “(1) an
heir, devisee, spouse, creditor, or any other having a property right in or claim
against an estate being administered; and (2) anyone interested in the welfare of an
incapacitated person, including a minor.” TEX. EST. CODE § 22.018. The Texas
Supreme Court has held that for a person to have standing in a probate matter, she
must have a “pecuniary interest” in the estate that will be affected by the outcome
of the proceeding. See Ferreira v. Butler, 575 S.W.3d 331, 334–35 (Tex. 2019);
Logan, 202 S.W.2d at 216; Estate of Adams, 2013 WL 84925, at *3 (“[T]he only
interest that confers standing to contest a will is a pecuniary one that will be
affected by the probate or the defeat of the will.”).
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an appealable order); In re Estate of Chapman, 315 S.W.3d 162, 164 (Tex. App.—
Beaumont 2010, no pet.) (“An order dismissing a will contest because the
contestant lacks standing is generally considered an appealable order.”); Rosin v.
Berco & Leja Rosin Tr., No. 04-08-00601-CV, 2009 WL 1956386, at *2 (Tex.
App.—San Antonio July 8, 2009, pet. denied) (mem. op.); Cunningham v. Fox,
879 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“A
determination that the applicant lacks interest in the estate ‘is in no sense
interlocutory,’ and is a final judgment.”).
Prigmore argues that her notice of appeal was timely because the trial court
finally adjudicated her claims on April 19, 2018. We disagree. The trial court
granted the motion in limine, which determined that Prigmore lacked standing
because she was not interested in Khoikan’s estate, on April 6, 2018. That was a
final judgment for the purposes of appeal. Within 30 days, Prigmore filed a motion
for new trial, which extended the appellate deadline to 90 days from the date of the
trial court’s judgment, or Thursday, July 5, 2018. See TEX. R. CIV. P. 329b(a) (time
for filing motion for new trial); TEX. R. APP. P. 26.1(a) (extending time for filing
notice of appeal). Under Verburgt v. Dorner, 959 S.W.2d 615, 615 (Tex. 1997), we
imply a motion for extension of time, which extended the time for filing the notice
of appeal to Friday, July 20, 2018. See TEX. R. APP. P. 26.3 (authorizing 15-day
extension of time to file a notice of appeal). Prigmore filed a notice of appeal on
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July 31, 2018, eleven days after the latest date on which she could have timely
filed her notice of appeal. Our appellate jurisdiction was, therefore, not invoked to
challenge the motion in limine.
Prigmore maintains that she is challenging the April 19, 2018 judgment
declaring heirship in addition to the orders entered on April 6, 2018. She contends
that her notice of appeal was timely based on the April 19 judgment date.
Prigmore’s notice of appeal was filed 103 days after April 19, which is within the
period of 90 days plus a 15-day extension. But the order granting the motion in
limine was not timely appealed, and therefore the trial court’s judgment that
Prigmore lacked standing became final and conclusive. See French v. Brown, 424
S.W.2d 893, 895 (Tex. 1967) (“Respondent permitted the judgment to become
final by his failure to invoke the right of appeal.”); Kendrick v. Tidewater Oil Co.,
387 S.W.2d 122, 126 (Tex. Civ. App.—Tyler 1965, writ ref’d n.r.e.) (“The portion
of a judgment awarding a recovery to one party from which no appeal is taken is
final on the appeal and all subsequent litigation.”); Shamburger v. Glenn, 255 S.W.
815, 816 (Tex. Civ. App.—Amarillo 1923, no writ) (failure to appeal renders
judgment final as to all parties not appealing). Although the notice of appeal was
timely as to the April 19 judgment, Prigmore lacked standing to challenge it.
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Conclusion
We conclude that we lack jurisdiction over Prigmore’s appeal of the April 6,
2018 order granting the motion in limine because she failed to timely appeal, and
we further conclude that we lack jurisdiction over any challenge she has raised to
orders or judgments entered after April 6, 2018 because she lacked standing to
appeal.
Accordingly, we dismiss this appeal for lack of jurisdiction.
Peter Kelly
Justice
Panel consists of Chief Justice Radack and Justices Lloyd, and Kelly.
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