                             Fourth Court of Appeals
                                    San Antonio, Texas
                                            May 4, 2020

                                        No. 04-19-00600-CV

                  IN THE ESTATE OF RAMONA MORENO, DECEASED

                    From the County Court at Law No 2, Webb County, Texas
                              Trial Court No. 2017PB7000034-L2
                          Honorable Victor Villarreal, Judge Presiding


                                           ORDER

Sitting:       Sandee Bryan Marion, Chief Justice
               Rebeca C. Martinez, Justice
               Irene Rios, Justice

        An appellate court “must consider [its] jurisdiction” over an appeal, “even if that
consideration is sua sponte.” Freedom Commc’n Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex.
2012). It appears from the appellate record that we lack jurisdiction over this appeal. The order
challenged on appeal, an order granting a motion for no-evidence summary judgment, appears to
be interlocutory for the reasons set out below.

       The relevant background is as follows. On May 3, 2017, Jose R. Perez Jr. filed an
application to probate Ramona Moreno’s last will and testament with a codicil. In the
application, Perez, who was named independent executor in the codicil, asked the trial court to
admit Moreno’s will and the codicil to probate and to issue him letters testamentary.

       On May 25, 2017, Josefina Gutierrez, Teresa Rodriguez, and Evangelina M. Galvan (“the
contestants”) filed a petition to contest the validity of the codicil. In their first amended petition,
the contestants alleged that Moreno lacked testamentary capacity when she executed the codicil.
Alternatively, the contestants alleged that that Elsa P. Saenz had exercised undue influence over
Moreno or had perpetuated fraud when Moreno executed the codicil.
        The original will proponent, Perez, died before the will and codicil were admitted to
probate. After Perez died, Saenz, as successor independent executor, filed a first amended
application to probate Moreno’s will and codicil. In the amended application, Saenz asked the
trial court to admit Moreno’s will and codicil to probate and to issue her letters testamentary.
Saenz also filed a motion for no-evidence summary judgment, arguing that the contestants could
produce no evidence to rebut the presumption of Moreno’s testamentary capacity and no
evidence that Saenz had exercised any undue influence or perpetuated fraud. In the no-evidence
summary judgment motion, Saenz asked the trial court to render a take-nothing judgment against
the contestants. On July 12, 2019, the trial court signed an order granting Saenz’s no-evidence
summary judgment motion. The contestants filed a notice of appeal, stating that they intended to
appeal the trial court’s order granting the no-evidence summary judgment motion against them.

        A judgment or order is final for purposes of appeal if it actually disposes of all pending
parties and claims before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). “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) (internal quotations omitted). However,
“[n]ot every interlocutory order in a probate case is appealable.” Id. The Texas Supreme Court
has articulated the test for appellate courts to determine their jurisdiction over an “ostensibly
interlocutory probate order” as follows:

              If there is an express statute, such as the one for the complete heirship
       judgment, declaring the phase of the probate proceedings to be final and
       appealable, that statute controls. Otherwise, if there is a proceeding of which the
       order in question may logically be considered a part, but one or more pleadings
       also part of that proceeding raise issues or parties not disposed of, then the
       probate order is interlocutory.

Id. (quoting Crowson v. Wakeham, 897 S.W.3d 779, 783 (Tex. 1995)) (emphasis added).

       In applying this test to the present case, we must determine if there was a proceeding of
which the order granting no-evidence summary judgment may logically be considered a part, and
if one or more pleadings also part of that proceeding raise issues or parties of which the trial
court has not disposed. See Riddick v. Marmolejo, No. 04-14-00157-CV, 2014 WL 953464, at *2
(Tex. App.—San Antonio Mar. 12, 2014, no pet.) (applying Crowson test and concluding a
dismissal order was interlocutory and not immediately appealable when the order could logically
be considered part of a proceeding in which issues were still pending).
         Here, the order granting no-evidence summary judgment on testamentary capacity and
undue influence may logically be considered part of the proceeding still pending in the trial
court. See In re Estate of Coleman, 360 S.W.3d 606, 609 (Tex. App.—El Paso 2011, no pet.)
(“We believe the summary judgment may logically be considered part of the proceedings to
admit the will to probate and authorize letters testamentary.”) Saenz’s amended application to
admit Moreno’s will and codicil remains pending in the trial court. The trial court has not
disposed of the threshold issues in Saenz’s amended application, such as whether or not the will
and codicil were properly executed and whether or not Moreno had testamentary capacity when
she executed the will and codicil remains pending. See In re Estate of Hemsley, 460 S.W.3d 629,
634 (Tex. App.—El Paso 2014, pet. denied) (“When a contest is filed before the will is admitted
to probate, the proponent of the will bears the burden of establishing that it was properly
executed and that the testator had testamentary capacity.”). Additionally, Saenz’s other issues
such as her request to admit the will and codicil to probate, to appoint her as independent
executor, and to issue letters testamentary have not been resolved by the trial court. Therefore,
the trial court’s July 12, 2019 order granting no-evidence summary judgment does not dispose of
all causes of action in this phase of the proceeding. Under the Crowson test, the order granting
no-evidence summary judgment is an interlocutory order and is not immediately appealable. See
Coleman, 360 S.W.3d at 610 (noting summary judgment order disposing of a will contestant’s
claims was not a final, appealable order because it left unresolved the will proponent’s requests
to admit the will to probate, appoint him as executor, and issue letters testamentary).

         Interlocutory orders may be appealed only if a specific statute authorizes such an
interlocutory appeal. For example, section 51.014 of the Texas Civil Practice and Remedies
Code lists circumstances under which a person may appeal from an interlocutory order of a
district court, county court at law, or county court. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014. We have not found any statutory authority that allows a party to appeal from the type of
interlocutory order appealed in the present case.

       We, therefore, ORDER appellant to show cause in writing by May 19, 2020 why this
appeal should not be dismissed for lack of jurisdiction.

       It is so ORDERED on May 4, 2020.

                                                            PER CURIAM

       ATTESTED TO: ______________________
                    MICHAEL A. CRUZ
                    CLERK OF COURT
