## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00015

- CV

IN THE ESTATE OF BILLY WAYNE PHILLIPS, DECEASED

On Appeal from the County Court at Law No. 2

Hunt County, Texas Trial Court No. 18697

Before Mo rriss, C. J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
The Last Will and Testament of Billy Wayne Phillips devised all of his estate to two of his children, Sheila Juanit a Smith and Billie Kimberly Hu dson

. After S mith was appointed independent executrix of Phillips ’ s estate , she sought to take possession of certain real proper ty occupied by Hudson that was included in Phillips ’ s estate

. In this appeal, Hudson challenges the probate court ’ s order grantin g possessi o n of the property to the Executrix. 1 Because we find that the Executrix had a superior right of possession, we will affirm the probate court ’ s order. 2
I. Background Phillips di ed on April 17, 2019

. On the date of his death , Phillips owned , inter alia , a n
ap proximately four teen

- acre tract of land in Hunt County 3 (the Property)

. Phillips ’ s will devised all of his estate, which includ ed the Property , to Smith and Hudson. On August 24, 2021, Phillips ’ s will was admitted to probate in the County Cou rt at Law No

. 2 of Hunt County, and Smith was appointed independent executrix of Phillips ’ s estate. Phillips ’ s will gave his inde pendent executrix “ full power and authority over any and all of [his] estate ” and authorized her “ to sell, manage, an d di spose of the same or any part thereof

. . . and to do any and all things
proper or necessary in the orderly handling and management o f [his] estate. ”

1 Hereinafter , we will refer to Sheila Jua ni ta Smith in her i ndividual capacity as “ Smith , ” and we will ref er to Sheila Juanita Smith in her capacity as independent executrix o f Phillips’s estate as “ the Executrix

. ”

2 In her brief on appeal , Hudson also chal lenges the trial court’s o rder dismissin g he r petition for intervention that sought partition of the real property pursuant to Chapter 23A of the Texas Property Code

. However, as we will explain, we do not h ave jurisdictio n to co nsider th at challenge.

3 The Pro perty is listed in the I nventory, A p p r aisement , and L i st of C laims , which was approved by the probate cour t on November 1, 2021.3

At the time of Phillips ’ s death , Smith and Hudson owned mobile homes that were located

on the Pro pert y. Although Smith n o longer resided on the Property, Hudson continued to reside in her mobile home on the Property after Phillips ’ s death. The Executrix sought to sell the Property under the power of sale granted in Phillips ’ s will, but Hudson refu sed to vacate the Property o r to move her mobile home. As a result, the Executrix filed an a pplication for t urnover in which she sought an order from the probate court that Hudson turn over possession of the Property by the removal of Hudson and h er mob ile home

. Hudson file d an o bje ction to the application and asserted that she was a tenant in common occupying the Property and th at the proper procedure was a partition suit pursuant to Chapter 23A of the Texas Property Code. On the day before the applic ation was to be heard , Hudson a lso filed a petition in intervention in which he sought to partition the Property pursuant
to Chapter 23 A of the Texas Property Code 4 and S ection 360.001, et seq. , of the Texas Estates Code 5 (the Parti tion Suit)

. On February 16, 2022 , the probate court e ntered its Order Approving Application for Turnover (the Order) and ordered Hudson to turn over possession of the Property
to the Executrix by removi ng her mobile home from the Property on or before Apr il 6, 2022. On February 25, 2 022, Hudson filed her no tice of appeal of the Order

. O n M arch 2, 2022, the Executrix file d a Rule 91a motion to dismiss the Partition Suit brought under C hapter 23A of the Texas Property Code

. On April 14 , 2022, the probate court

4 T EX
. P ROP
. C ODE A NN
. §§ 23A.001

– .013 ( S upp .)

.
5 T EX
. E STATES C ODE A NN
. §§ 360.001

– . 301.4

entered its order dismi ssing the Partition Suit brought under C hapter 23A of the Texas Property Code. Hudson did not file a notice of appea l from th e dismissal order. On April 6, 2022, the Executrix filed a motion for contempt a nd alle ged that Hud son was in contempt of the Ord er because she had failed to vacate and turn over possession of the Property to the Executrix. On Ap ril 27, 2022, the probate court entered a contempt judgment and found Hudson in contempt of court . In the ju dgment, the probate court ordered Hudson t o remove her mobile home and all personal property from the Property within thirty days and ordered tha t , if she failed to do so , she would be fined $100.00 per day until she turn ed over the Property or was forci bly removed by the s heriff of Hunt County. Hudson did not file a notice of appeal, or any original proceeding , challenging the contempt judgment.
II. The Probate Court Did Not Abuse Its Discretion When It Ordered Turnover of Possession to the Executri x A. Stand ard of Review In her first issue , Hudson as serts that the probate court a bused its discretion in granting possession of the property to the Executrix. A probate court ’ s order is reviewed under an abuse

of

- discretion standard. Estate of Nielsen , 533 S.W.3 d 39, 40 (Tex. App.

— Texar kana 2017, no pet. ). “ A trial court abuses its discretion if it acts without reference to any guiding rules and principles or reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. ” Id

. (citing Downer v. Aquamarine Operators , Inc. , 701 S.W.2d 238,
241

– 42 (Tex. 1985) ). “ When reviewing factual issues or other matters committed to the trial
court ’ s discretion, we may not substitute our judgment for that of the trial court

. ” Id

. (citing Walker v. Packer , 82 7 S.W.2d 833, 839 (Te x. 1992)). “ However, when rev iewing the trial5

court ’ s determination of the law, our review is much less deferential, since a trial court has no discretion in determining what the law is or in app lying t he law to the facts. ” Id

. (citi ng Walker , 827 S.W.2d at 840). “ A trial court abus es its discretion when it erroneously interprets the law or misapplies the law. ” Id

. (citing Walker , 827 S.W.2d at 840; Morales v. Segura , No. 04

- 15

- 00365

- CV, 2015 WL 8 9858 02, at *2 (Tex. App.

— San Antonio Dec. 16, 2015, no pe t.) (mem.

o p . )).
B. Analysis

1. T he Probate Court Entered the Order Under the Texas Estates Code
H udson initially argues that the trial court erred in applying Section 31.002 of the Texas Civil Practice and Remedies Code when it ordered Smith to turn over possessi on of the Property to the Executrix. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 31.002. Hudson argues that Section
31.002 may only be used by judgment creditors to obtain th e turnover of pr operty owne d by judgment debtors , citing Section 31.002 ( a) of the Texas Civil Practice and Rem edies Code , Beaumont Bank , NA. v. Buller , 806 S.W.2d 223, 227 (Tex. 1991 ) , and Van Dyke v. Littlemill
L imited , Prosperity Se ttlement Funding , Inc

. , 579 S.W.3d 639, 651 ( Tex. App.

— Houston [1 4 t h Dist.] 2019, no pet.)

. S he reasons that , since the Executr ix w as not a judgment creditor and Smith was not a judgment debtor, the trial court abused its discretion in ordering turnove r of the property. However, as the Executrix points ou t, the Execut rix did not seek possession of the Property under Section 31.0 02. Rather, the Executrix argues that the Property was included in the Phillips estate as it existed at the time of Phill ips ’ s death , that the Executrix had the right to6

possess th e Property un der Section 101.003 of the Texas Estates Code , and that she cou ld

r ecover possession of the Property under Section 351.054 of the Texas Estates Code

. See T EX
. E STATES C ODE A NN
. § 101. 0 03 ( “ On the issuance of letters testamentary

. . . on an estate descr ibed by Section 101.001, the executor

. . . has the right to po ssessi on of the estate as the estate existed at the death of the testator

. . . . ” ) ; T EX
. E ST
. C ODE A NN
. § 351.054 (a ) ( 2) ( “ An executor or administrator appointed in this state may commence a suit for : . . . title to or possession of land

. ” )

. We agree.

“ [W]e loo k to the substance of a motion to determine the relief sought, not merely to its title. ” In re Estate of Hutchins , 391 S.W.3d 578 , 585 ( Tex. App.

— Dallas 2012 , orig. proceeding) ( quoting Surgitek , Bristol

- Myers Corp. v. Abel , 997 S.W.2d 598, 601 (Tex. 1999 ) ) ;

see State Bar of Tex. v. Heard , 603 S.W.2d 829, 833 (Tex. 1980) ( “ We look to the substance of a plea for relief to determine the nature of the pleading, not me rely at the fo rm of title given to it

. ” (citing T EX
. R. C IV
. P. 71 ))

. In addition, we “ m ust uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for i ts judgment. ” Id

. (quoting
Guar

. Cnty . Mut. Ins. Co. v. Reyna , 709 S.W.2d 647, 648 (Tex. 1986) ). Section 101.003 of the Texas Estat es Cod e provid es that , “ [o] n the issuance of letters testamentary or of administration on an estate described by Section 101 .001, the executor or administrator h as the right to possession of the estate as the estate existed at the death of the
testator or i ntest ate ” and that “ [t]he executor or administrator shall recover possession of the estate and hold the estate in trust to be disposed of in accordance with the law. ” T EX
. E ST
. C ODE A NN
. § 101.003. Texas courts have inter preted the substantively iden tical pro vision o f Section7

37 of the now - repealed Texas Probate Code 6 as giving the executor or admin istrator both the right to possession of the property of the estate as it existed at the death of the testator or intestate and the duty to recover the property of the es ta te. See Hutchins , 391 S.W.3d at 589; Bloom v.
Bear , 706 S.W.2d 146, 147

– 48 (Tex. A pp.

— Houston [14th Dist.] 1986, orig. proceedi ng ) ; Atl

. Ins

. Co. v. Fulfs , 417 S.W.2d 302, 305 (Tex. App.

— Fort Worth 1967, writ ref ’ d n.r.e.). Although the title of the Exe cutrix ’ s pleading was “ Application for Turnove r, ” the substance of the applicati on shows that the Executrix sough t the turnover of the Property in connection with the pending administratio n of the Phillips estate. The application state d that sh e h ad previ ously filed an inventory and list of claims of the estate , which listed the Prop erty, and that the probate court had approved the inventory

. 7 The applicatio n also showed that the
Executr ix sought possession of the Property so that she could pro cee d with t he marketing and sale of the Property so she could pay any outstanding debts and costs of administration of the

e state. For those reasons, we conclude that the application was a request for relief under Section s 101.00 3 and 351.054 of the Texas Es tates Co de , not a request for turnover under Section 31.002 of the Texas Civil Practice and Remedies Code

. See Hutchins , 391 S.W.3d at 585 ( con struing a similar motion as a request for re lief under the predecessor section of the now repealed Texas Probate Code ). In addition, in the Order, the probate court did not refer to Section 31.00 2. Rather, the
Or der stated that the probate court had consider ed the appli cation , granted it, and or dered

6 See Act of June 1 , 1981, 6 7 th Leg., R.S. , ch. 674, § 3, 1981 Tex. Gen. L a w s 2536, 2537 , repeale d by Act of May 26, 2009, 81 st Leg., R.S., ch. 680, § 10( a ), 2009 Tex. Gen. Law s 1512, 1732

.
7 Hudson does not contest those allegations, and the record confirms their accuracy. See supra note 3

.8

Hudson to turn o ver possession of the Property to the Executrix. Since c ourt s consider the

su bstance of the relief sought regardless of the pleading ’ s titl e , Ryland Enter prise , Inc. v. Weatherspoon , 3 55 S.W. 3d 66 4, 666 (Tex. 2011) , we conclude that the pro bate court granted possession of the Property to the Executrix p ursuant to Sections 101.00 3 and 351. 054 of the Texas Estates Code. Consequently, we find Hudson ’ s complaint that the trial court abus ed its discretion by granting a turnover order pursuant t o Section 31.002 of the Texas Civil Practice and Remedies Code is without merit.

2. The Execut rix Had a Superior Right to Possession of the Property
H udson also argues that the probate court abused its discretion because, as a devisee of
Phi llips, she became a cotenant of the Property immediately upon Phillips ’ s death. See T EX
. E ST
. C ODE A NN
. § 101.00 1(a ) ( 1) ( “ i f a person dies leaving a lawful will

. . . a ll of the person ’ s estate tha t is devised by the will vests immediately in the devisee ” ). Hudson argues that , as a
cotenant living on the Property , she had an equal r ight to use , possess, and enjoy the Property and that the probate court abused its discretion when it o rdered her to turn over possession of the Property to the Executrix. 8

8 While the cases relied upon by Hu ds o n suppo rt the pro position that , upon the death of a testator, his property vests in his devisees or the proposi tion that a cotenant has an equal right of use and enjoyment of the property, none of those cases involved an executrix attempting to gain pos se s s ion of estate pr operty under the authority granted her under the Texas Estates Code or the for mer Texas Probate Code. See Co x v. Davison , 397 S.W.2d 200, 201 (Tex. l965) ; Ferguson v. Ferguson , 111 S.W.3d 589 , 595

– 96 (Tex. App.

— Fort Worth 2003, pet. de ni e d ) ; Welde r v . Hitchcock , 617 S.W.2d 294, 297 (Tex. App.

— C orpus Christi 1981, writ ref ’ d

. n.r.e.) ; Burnham v. Hardy Oil Co

. , 147 S.W. 330, 334

– 35 (Tex. App.

— San Antonio 1912 ), aff ’ d on other grounds , 195 S.W. 1139 ( Tex. 1917) ); Gillum v. St. Louis, A & T

. R y . Co

. , 23 S.W. 717, 718 (Tex. Ct

. App. 1893)

. Only one of these cases involved an a ction by an executor , and it i s inapposite to the issue of whether , during the administration of an estate, a n executor ’ s right to possession of estate property is supe ri o r to that of a d evisee of the property

. In Ferguson , Norma Ferguson was devised the marital home upon the death of her husband, L.J. Ferguson. Norma occupied the home during all her mar riage to L.J

. and continued to occupy the home after his death

. F er g u son , 111 S. W .3d at 591. After Norma en tered into an agreed judgment with the executor o f L.J .’s estate regarding some claims she had made9

Althou gh Hudson is correct that a devisee under a will holds a vested interest in p roperty

on the testator ’ s death , nevertheless , such interest is subject to the administration of the estate , including the executor ’ s right of possession and control of the p roperty. See T EX
. E ST
. C ODE A NN
. §§ 1 01.001(a ) ( 1), 101.003 ; Meekins v. Wisnoski , 404 S.W. 3d 690 , 698 ( Tex. App.

— Houston [14 th Dis t.] 2013 , no pet. ) ; Hutchins , 391 S.W.3d at 589

– 89; Fulfs , 417 S.W.2d at 304

– 05 ; Bloom , 706 S.W.2d at 147

– 48

. “ The [ executor or ] administrator of the estate holds legal title and a superior right to possess estate p roperty

. ” Meekins , 404 S.W.3d 698 (citing Woodwa rd v.
Jaster , 933 S.W.2d 777, 781 (Tex. App.

— Austin 1996, no writ) ); see also T EX
. E ST
. C ODE A NN
. §§ 101.003, 351.054 (a )( 2) ; Hutchins , 391 S.W.3d at 589 ; Fulfs , 417 S.W.2d at 304

– 05 ; Bloom , 706 S.W.2 d at 147

– 48

. Further , even if a devisee posse sse d part of the estate before the will was probate d , “ her possession [i ] s sub ject to the executor ’ s right of possession and [the executor ’ s] right under such circumstances [i] s enforceable by court order. ” Fu l fs , 417 S.W.2d at 305 ; see also T EX
. E ST
. C ODE A NN
. § 351.054(a )( 2), (b) ; Hutchins , 391 S.W.3d at 589 ; Bloom , 706 S.W.2d at 147

– 48. In this case, Hudson, as one of the devisees under Phillips ’ s will, obtained a vested interest in the Property on Phill ip s ’ s d eath and oc cupied the Property after his death . However, after Phillips ’ s will was probated , this int erest and occupancy was subject to the Executri x ’ s

against the estate, the executor filed a declaratory judgment action and asserted that , under the terms of the ag re e d judgment, N o rma lost her right to ownership and occup ancy of the marital home

. Id

. at 592. The trial court agreed , entered a declaratory judgment that the executor was e ntitled to r ecover title and possession of the home, and ordered Norma to vacate i t

. Id

. at 593. On appeal, the court of appeals found that the language of the agreed jud gment in which Norma released all claims against the estate did not divest Norma of o wnership of the marital home since the home vested in her upon the death of L.J

. u n der Section 3 7 of the now - repealed Texas Probate Code (now Section 101.001(a)(1) of the Texas Estates Code) , and as a result , her ownership of the property was not a claim against the estate. Id

. at 59 5

– 96.10

superior right of possession and contro l of the Property

. When the Executrix exercised her righ t to po ssession of the Prop erty under Sections 101.003 and 351.054 (a )( 2) of the Texas Estates Code, the prob ate court properly enforced that right pursuant to Section 351.054 (b) when it ordered Hudson to turn over possession of the Proper ty to the Executrix

. T EX
. E ST
. C ODE A NN
. § 351.054(a )( 2), (b)

. For these reason s , we find that the probate court did no t abuse its discretion when it ordered Hudson to turn over possession of the Property to the Executrix. We overrule Hudson ’ s first issue. 9
III. We Lack J urisd ictio n to Consid er Hudson ’ s Remaining Issue
In h er second issue, Hudson contends that the trial cou rt erred when it dismissed h er partition suit pursuant to Rule 91a of the Texas Rule s of Civil Procedure

. See T EX
. R. C IV
. P. 91 a (authorizing dismissal of a cau se of ac tion that has no basis in law or fact)

. Generally, we have “ jurisdiction only over appeals from f inal judgments or certain specified interlocutory orders

. ” Schoolcraft v. Dep ’ t of Family & Protective Servs. , No. 06

- 05

- 00076

- CV, 2005 WL
34878 49, a t * 1 ( Tex. App.

— Texarkana Dec. 22, 2005, no pet.) (mem. op.) (citing T EX . C IV
.

9 In her third issue, Hudson seeks a stay fro m t h e contempt judgment and argu e s that , since the Order was imprope r, so also was the cont empt judgment

. Since we have found that the probate court did not abuse its discretion when it entered the Order , we need not address this issue. We also note that “ [ c ]ourts of appeal generally do not have jurisdiction to review contempt orders by way of direct appeal. ” Johnson v. Clark , No. 07

- 11

- 00122

- CV, 2011 WL 5118775 , at * 1 (Tex. App.

— Amarillo Oct. 28, 2011, no pet.) (mem. op.) (citing Tex

. Animal Health Comm ’n v . Nunle y , 647 S.W.2d 951, 9 52 (Tex. 1983); In re A.M

. , 974 S.W.2d 857, 861 (Tex. App.

— San Antonio 1998, no pet.); Metzger v. Sebek , 892 S.W.2d 20, 54 (Tex. App.

— Houston [1st Dist.] 1994, writ denied) )

. “ This is true even when the contempt order is app ea l e d along with an appealable jud gment. ” Id

. (citing In re Gonzalez , 993 S.W.2d 147 , 157 (Tex. App.

— San Antonio 1999, no pet.); Metzger , 892 S.W.2d at 54 )

. When a contempt order does not involve confinement, as here, “ the only possible relief is a writ of m andamus. ” In re Long , 984 S .W. 2d 623, 625 (Tex. 1999) (orig. proceeding) (per cu riam) (citing Ross er v. Squier , 902 S.W.2d 962, 962 (Tex. 1995) )

.11

P RAC . & R EM . C ODE A NN . § 51.014 (Sup p.) ; 10 Onstad v. Wright , 54 S.W.3d 799, 803 (Tex. App.

— Texarkana 2001, pet. denied). “ Probate proceedings are an exception to the ‘ one f inal jud gme nt ’ r ule; in such cases, ‘ multiple j udgments final for purposes of appeal can be rendered

on c ertain discrete issues

. ’ ” De Ayala v. Mackie , 193 S.W.3d 575, 578 (Tex. 2006) (op. on reh ’ g) (quoting Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 195 (Te x. 20 01) , s uperse ded by

statute on other groun d

s )

. A n appeal from a probate court order may be taken if it “ dispose[s] of all parties or issues in a particular phase of the proceedings ” or if “ there is an express statute, such as the one for the complete heirs hip ju dgment , declaring the phase of the probate proceedings to be final and appealable. ” Id

. at 578

– 79 (quoting Crowson v. Wakeham , 897 S.W.2d 779, 783 (Tex. 1995))

. As stated earlier, Hudson filed the P artition S uit pursuant to both Chapter 23A o f the
T exas P ropert y Code and S ection 360.0 01, et seq. , of the Texas Estates Code. The Rul e 91a motion to dismiss sought dismissal of only the portion of the Partition Suit asserted under Chapter 23A , and the order of dismissal only dismissed Hud son ’ s parti ti on suit “ under Texas Property Code [Chapter] 23A. ” As a result, the order of dismis sal did not dispose of that portion of the Partition Suit brought under S ection 360.001, et seq. , of the Texas Estates Code. Consequently , the dis missal order did not di spose of all pa rties or issues in this phase of the proceedings, and there ha s not been a final judgment entered in the Partition Suit. For that

10 An in terlocutory order granting a Rule 91a motion to dismiss is not included among the appealable orders l i s ted in Section 51.014. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014(a). Altho ugh not applicable to this case, Section 51.014 also “ permit [s] an appeal from an order that is not otherwise appealable” if certain conditions are met. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014(d), (f) ; T EX
. R. C IV
. P. 168; T EX
. R. A PP
. P. 28.3

.12

reason, we find that the interlocutory dismissal order is not a final , appealable order. As a resu l t ,

w e do n ot ha ve jurisdiction to c onsider issues related to the dismissal order. Even if the Rul e 91a dismissal order was an appealable interlocutory order, we would not have jurisdiction to consider it. To invoke our jurisdiction over an appeal from a j udgm ent or orde r, a party must file a timely notice of appeal that states the date o f the judgmen t or order that is being appealed. T EX
. R. A PP
. P. 25.1( b), (c), 26. 1. Since there may be multiple order s entered by the probate court on separate discret e i ssues, a n otice of appeal must be f iled for each separate order. See Rainbow Grp. , Ltd. v. Wag oner , 219 S.W.3d 485 , 492

– 93 ( Tex. App.

— Austin 2007 , pet. denied ) (court would not consider notice of appeal specifying the appeal of one order to incl ude the ap peal of a separ ate appealable orde r later entered by the trial court); Thomas v. Thomas , No. 1 4

- 02

- 01286

- CV , 2003 WL 1088220 , at *2 (Tex. App.

— Houston [14 th Dist.] Mar

. 13, 2003 , no pet.) (mem. op. ) ( per curiam) (same); Oak Creek Homes , L. P. v. Moore , No. 11

- 15

- 0029 1

- CV , 2016 WL 6998949 , at *2 (Tex. App.

— Eastland Nov. 30, 2016 , no pet.) (mem . op.) (same). In this case, Hudson filed a notice of appeal on February 25, 2022, and sta ted that she was appealing “ from the [probate] Court ’ s Orde r Approving Applica tion for Tu rn ov er . ” On March 2, 2 022, the Executrix filed her Rule 91a motion to dis miss the Partition Suit , which the probate court granted on April 14, 2022. Con sequently, if the Rule 91a dismiss al order was an appealable order , it was a separate order on a discr ete issue that was not designated in Hudson ’ s February 25 notice of appea l

. Further, Hudson did not timely file a notice of appeal challenging13

the dismissal order. As a result, our jurisdiction to consider issues related t o the dismissal order has not be en i nvoked. See T EX
. R

. A PP
. P. 25.1(b), (c), 26.1

. IV. Disposition For the reason state d, w e affirm the trial court ’ s judgment.

Charles van Cleef Justice Date Submitted : July 7, 2022 Date Decided: July 26 , 202 2