In Gaddy v. Fenenbock (In re Est. of Fenenbock), a probate court entered an order directing the independent executor of an estate to make a partial distribution of assets from the residuary clause in the decedent’s will into a family trust. No. 08-23-00146-CV, 2024 Tex. App. LEXIS 2240 (Tex. App.—El Paso March 28, 2024, no pet.). The court of appeals dismissed the appeal, finding that the order was not appealable.

The court first addressed the general rules for appealability of probate orders:

Like orders in general civil cases, orders in probate cases must be final to be appealable. Unlike general civil cases, however, in the probate field, “an order may be considered final even if it does not dispose of the entire probate proceeding.” This is because “[a] probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based.” The need to review controlling, intermediate decisions in a probate case before an error can harm later phases of the proceeding has been held to justify modifying the “one final judgment” rule.

In light of this recognized need, the Texas Supreme Court developed the Crowson test, which sets forth two instances in which a probate court order may be appealable without disposing of the entire proceeding. First, a probate court order is considered final and appealable when “there is an express statute . . . declaring the phase of the probate proceedings to be final and appealable,” and in that instance, the “statute controls.” Second, when no express statute controls the matter, a probate court order may still be considered final and appealable when it “dispose[s] of all parties or issues in a particular phase of the proceedings.” In this instance, we must determine “(1) if there is a particular phase of the probate proceedings of which the [j]udgment[] logically may be considered a part, and (2) if [so, whether] the probate court disposed of all parties and all issues in this phase.” If an order merely “sets the stage for the resolution” of a phase of the proceedings, it will not be considered final and will instead be considered interlocutory in nature.

Id. The court then undertook to characterize the order that was the subject of the appeal as simply just ordering the executor to make a partial distribution:

“[I]t is the character and function of an order that determine its classification.” As the parties acknowledge, the probate court’s order was contradictory by finding “that there is no continued necessity for administration of the Estate” and ordering Glenna to “make a partial distribution of $3,000,000 from the residue of the Estate” to the Family Trust… [A] court may not, as the probate court did here, find there is no continued necessity for the administration of an estate while ordering only a partial distribution of the estate’s assets… But because a final distribution was not made and none of the other steps necessary for a formal closure occurred, the order’s only true function was to direct the partial distribution of assets to the Family Trust.

Id. The court next determined that the order was not a final appealable order:

First, there is nothing in the Estates Code making an order of partial distribution of assets a final order subject to appeal. Second, the partial distribution order did not end a discrete phase of the proceedings. As explained above, the order left well over a million dollars remaining in the estate subject to future distribution… While Glenna and Mark disagree over what issues must be addressed prior to closing the estate, the record reflects that there are pending issues which the order does not resolve. And as the order did not effect a final distribution of the estate assets, we conclude that it cannot be considered a final order under the Crowson test and must instead be categorized as interlocutory in nature.

Id. The court also addressed an argument that the order was a temporary injunction:

And finally, Glenna seeks to characterize the probate court’s interlocutory order as a “temporary injunction,” which would make it appealable under § 51.014(a)(4) of the Texas Civil Practices and Remedies Code. We agree with Mark, however, that the order cannot be characterized that way… In general, the function and purpose of a temporary injunction is to “preserve the status quo of the litigation’s subject matter pending a trial on the merits.” There are two general types of temporary injunctions: a prohibitive injunction, which forbids conduct, and a mandatory injunction, which requires it. When we consider whether an order is a temporary injunction and therefore appealable, matters of form do not control over “the nature of the order itself—it is the character and function of an order that determine its classification.”… Glenna contends the order can be characterized as a mandatory temporary injunction because it requires her to take certain action, i.e., to make a partial distribution of estate assets and to do so within a short period of time “during the pendency of the suit.” And she contends the order should be considered void because it does not comply with the requirements for issuing such an order, as Mark did not plead or prove that he had a probable right to the relief sought, or that he would suffer probable, imminent, and irreparable injury in the interim if the relief was not granted. Glenna further points out that the court did not order Mark to post a bond as required by Rule 684 of the Texas Rules of Civil Procedure.

It is true that if a trial court issues an order that is properly characterized as a temporary injunction but fails to meet these requirements, it is still considered a temporary injunction, albeit a void one. However, for the reasons set forth below, we do not find that the order can be characterized as such. First, we find it significant that Mark did not request a temporary injunction, nor did the probate court designate its order as a temporary injunction. Instead, Mark filed his petition for an accounting and distribution of the estate assets pursuant to § 405.001(a) of the Estates Code, which, as set forth above, allows for an interested party in an independent administration of an estate to make such a request after a certain amount of time has passed. And in granting the petition in part, the court expressly based its order on § 405.001(b) of the Estates Code, which permits a court to issue an order of partial distribution of estate assets. As Mark points out, Glenna’s attempt to portray the order as a temporary injunction, rather than an order falling under the provisions of the Estates Code, would be contrary to the courts’ pronouncements in this area regarding the appealability of probate court orders under the Crowson test. Furthermore, taken to its logical extreme, Glenna’s argument that we should characterize the probate court’s order as a temporary injunction simply because it requires her to take certain action would turn every probate court order directing an independent executor to engage in conduct into an appealable temporary injunction. Again, this would conflict with the carefully crafted test for determining when probate court orders can be considered as final, appealable orders and would flood appellate courts with appeals from interlocutory orders in estate proceedings. Accordingly, we reject Glenna’s argument that the probate court’s order of partial distribution can be characterized as an appealable temporary injunction.

Id. Accordingly, because the probate order did not terminate a phase of the estate and was not an appealable injunction, the order was not appealable.