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 COEXECUTOR 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 
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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). 

 

210754F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JOHN H. ROACH, 

INDIVIDUALLY AND AS SOLE 

TRUE TRUSTEE OF THE CREDIT 

SHELTER TRUST AND THE 

MARITAL TRUST, Appellant 

No. 05-21-00754-CV 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, 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 

 On Appeal from the Probate Court 

No. 1, Dallas County, Texas 

Trial Court Cause No. PR-21-00540-

1. 

Opinion delivered by Justice 

Goldstein. Justices Molberg and 

Smith participating. 
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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