Facts

Parties:

  • [A.] (Appellant), represented by attorney Patrik A. Häberlin,
  • [B.] and [C.] (Appellees), both represented by attorney Beat Rüedi.

Facts:

  • The decedent [D.] passed away on tt.tt 2006, leaving behind her husband [A.] and two children from a first marriage, [B.] and [C.] .
  • The decedent and [A.] jointly built a multi-family house, which was divided into condominium units and parcelled out from the original property.
  • [A.] filed a partition lawsuit and requested the determination of a half-interest in a simple partnership regarding the property [W.] weg yyy.
  • The District Court of Kreuzlingen, in a partial decision, established that a simple partnership existed between [A.] and the decedent and that this partnership was dissolved upon the decedent's death.
  • The Appellate Court of the Canton of Thurgau did not admit the appeal and dismissed the cross-appeal as moot.
  • The FSCA partially overturned the decision of the Appellate Court and remanded the case for further proceedings.
  • The Appellate Court overturned the interim decision of the District Court and remanded the case back to the District Court for rehearing.
  • [A.] filed an appeal with the FSCA against the decision of the Appellate Court.

Considerations

The FSCA examines ex officio and with free cognition whether an appeal can be admitted (Art. 29 para. 1 FSCA). The appeal is generally only admissible against final decisions (Art. 90 FSCA). The challenged decision does not conclude the proceedings but remands the case to the court of first instance. Therefore, it is not a final decision within the meaning of Art. 90 FSCA, but an interim decision.

It must be examined whether the decision at least regarding the assessment of the existence of a simple partnership could be considered a partial decision. A partial decision exists when one or some of several legal claims are finally decided and these claims can be assessed independently of the others (Art. 91 lit. a FSCA). In the present case, the "declaratory claim" regarding the existence of a simple partnership is merely part of the appellant's reasoning for determining the value of the estate. The decision on a claim aimed at including certain assets in the estate does not meet the…