Opinion filed December 8, 2016




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-16-00004-CV
                                     __________

                IN THE MATTER OF THE ESTATE OF
                MILDRED L. ETHRIDGE, DECEASED


                    On Appeal from the County Court at Law
                                 Midland County, Texas
                          Trial Court Cause No. P-10778


                     MEMORANDUM OPINION
      This is an appeal from a written order entitled “Order Determining Estate
Distribution.” The trial court entered the order based upon its determination that it
needed to make a preliminary ruling to determine if Appellees had standing to
challenge the actions of Appellant, Fred D. Davis, Jr., in his role as the independent
executor of the Estate of Mildred L. Ethridge, deceased. We dismiss for want of
jurisdiction.
                                    Background Facts
          On March 13, 1990, the decedent executed a typewritten will that she drafted
without consulting an attorney. She died on January 9, 1994, and the will was
admitted to probate on April 7, 1994. The county court at law authorized Appellant
to receive “Letters Testamentary” as the independent executor of the decedent’s
estate.
          Approximately twenty years later, Appellee John Wright Ethridge, Jr. filed an
application for removal of Appellant as the independent executor of the Estate.
Appellee John McCarty also filed an application to appoint a successor independent
executor. Appellees based their claims on the assertion that they were heirs at law
of the decedent and that various mineral royalty interests possessed by the decedent
did not pass pursuant to the terms of her will.
          The trial court held a hearing on September 10, 2015, to consider the various
claims of the parties. Appellant asserted at the outset of the hearing that Appellees
did not have standing to either seek his removal or obtain an accounting from him
because the decedent’s will distributed her entire estate to him as the sole devisee
named in her will. The trial court announced during the hearing that it would need
to make a determination concerning the distribution of property made by the will in
order to determine if Appellees’ claims were moot. The trial court subsequently
entered an “Order Determining Estate Distribution” wherein it determined that a
portion of the decedent’s estate passed to her heirs at law under intestacy because
she did not bequeath her entire estate to Appellant. The trial court made this
determination based upon its interpretation of the will’s language. Appellant appeals
from the trial court’s order asserting that the trial court improperly interpreted the
will.




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                                                Analysis
        Appellees assert in their brief that we are without jurisdiction to consider this
appeal because it is not from an appealable order. We agree. Generally, appeals
may only be taken from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all
pending parties and claims. Id. This case was filed in a court sitting in probate.
“Probate proceedings are an exception to the ‘one final judgment’ rule; in such cases,
‘multiple judgments final for purposes of appeal can be rendered on certain discrete
issues.’” De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann,
39 S.W.3d at 192).
        In a probate proceeding, an order is final and appealable before the entire
proceeding is concluded if the order disposes of all parties or issues in a particular
phase of the proceedings. Id. at 579; Crowson v. Wakeham, 897 S.W.2d 779, 783
(Tex. 1995); In re Guardianship of Benavides, 403 S.W.3d 370, 374 (Tex. App.—
San Antonio 2013, pet. denied). However, if the order does not end a phase of the
proceedings, but only “sets the stage” for the resolution of all proceedings, the order
is interlocutory. De Ayala, 193 S.W.3d at 579.
        In De Ayala, the supreme court held that the trial court’s order denying a plea
to the jurisdiction and refusing to remove an executor was not appealable. Id. at 578.
The court explained that “an order denying a motion to dismiss an entire proceeding
for want of subject matter jurisdiction is more like a prelude than a finale.”1 Id. The
supreme court explained that “the trial court’s order was interlocutory because it did
not dispose of all parties or issues in a particular phase of the proceedings.” Id. at


        1
         The court noted in De Ayala that the parties did not seek a severance prior to appealing the trial
court’s order. 193 S.W.3d at 578. The court further noted that a severance would not have been appropriate
because the trial court’s order did “not dispose of a claim that, if asserted independently, would be the
proper subject of a lawsuit.” Id. As was the case in De Ayala, the parties in this appeal did not seek a
severance after the trial court entered its order determining estate distribution.

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579. “Because an order denying a plea to the jurisdiction and refusing to remove an
executor does not end a phase of the proceedings, but sets the stage for the resolution
of all proceedings, the order is interlocutory.” Id.
        The order that Appellant appeals from is analogous to the order at issue in
De Ayala. Appellant sought to end the proceedings by asserting that Appellees were
not interested parties in the decedent’s estate because she left her entire estate to
Appellant.       Accordingly, the trial court determined that it needed to make a
preliminary ruling to determine if Appellees had standing to challenge Appellant’s
actions as executor. The trial court’s order had the practical effect of denying
Appellant’s request to dismiss the proceedings.2 Accordingly, the trial court’s order
determining estate distribution did not end a stage of the proceedings. As was the
case in De Ayala, the order was “more like a prelude than a finale.” We conclude
that we are without jurisdiction to consider an appeal from this interlocutory order.
                                         This Court’s Ruling
        We dismiss this appeal for want of jurisdiction.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


December 8, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



        2
         Chapter 202 of the Texas Estates Code provides for a proceeding to declare heirship of a decedent.
See TEX. EST. CODE ANN. ch. 202 (West 2014 & Supp. 2016). Section 202.202 provides that the judgment
in a proceeding to declare heirship is a final judgment for appellate purposes. This provision is inapplicable
because this is not an appeal from a proceeding to declare heirship of a decedent.

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