In probate proceedings it is not always clear when the court has rendered an appealable order.  Probate proceedings can produce multiple final, appealable orders.   The San Antonio Court of Appeals recently addressed one of those circumstances in In re Guardianship of Glasser

In Glasser, the Probate Court appointed litigation counsel to help an Attorney Ad Litem in a guardianship proceeding.  The court’s appointment order approved employment of litigation counsel and ordered that costs associated with the representation would be paid by the estate after being presented to the court and approved.  The court subsequently signed two orders approving fees and a final order at the conclusion of the proceeding approving fees and discharging the attorney ad litem and the litigation counsel.  The temporary guardian appealed the fee orders and the ad litem and litigation counsel sought dismissal, contending that the appeal was untimely because the court’s initial orders of appointment and approval of fees were final, appealable orders at the time they were signed. 

The Court of Appeals disagreed, noting that the order of appointment simply set the stage for what followed and did not resolve a particular phase of the case.  The parties and the court understood and intended that there would be interim fee awards and that all awards were subject to a final hearing.  Accordingly, the interim orders were not final and appealable. 

One aspect of the Court’s opinion that bears mention is that its holding may well be confined to the facts of the case.   Unfortunately for practitioners, the opinion does not provide a bright-line test for when other orders for attorney’s fees in probate proceedings might be recoverable.

One other holding in the case is worthy of mention for appellate practitioners.  The Probate Court awarded the ad litem and litigation counsel fees for defending against an appeal by the temporary guardian.  The temporary guardian successfully challenged this portion of the award.  The Court of Appeals reasoned that while an attorney ad litem is entitled to compensation on appeal regardless of the outcome of the appeal, here the adlitem was protecting her own interests (rather than the ward’s interests) in defending the fees that had been awarded to them.  Accordingly the Court held that they were not entitled to recover fees for the appeal.

The Court’s opinion may be found at this link.