Opinion issued August 22, 2013.




                                  In The

                           Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-11-00731-CV
                         ———————————
             IN RE ESTATE OF DICK C. CALKINS, Deceased



                  On Appeal from the Probate Court No. 4
                          Harris County, Texas
                      Trial Court Case No. 275,123


                                   and
                         ————————————
                           NO. 01-11-00732-CV
                         ———————————
                      CAROLYN JAMES, Appellant
                                    V.
                RICHARD STEPHEN CALKINS, Appellee
     On Appeal from the Probate Court No. 4
             Harris County, Texas
       Trial Court Case Nos. 275,123-401


                      and
           ————————————
              NO. 01-11-00733-CV
            ———————————
IN RE GUARDIANSHIP OF MARY OLIVE CALKINS


     On Appeal from the Probate Court No. 4
             Harris County, Texas
         Trial Court Case No. 378,993


                      and
           ————————————
              NO. 01-11-00734-CV
            ———————————
         CAROLYN JAMES, Appellant
                      V.
    RICHARD STEPHEN CALKINS, Appellee



     On Appeal from the Probate Court No. 4
             Harris County, Texas
       Trial Court Case Nos. 378,993-401




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                         MEMORANDUM OPINION

      Carolyn James applied for a permanent guardianship of her mother’s person

and estate. Richard Calkins, who is Carolyn’s brother, moved to dismiss the

proceeding on the ground that Carolyn failed to comply with the jurisdictional

provisions of the Probate Code requiring that a guardianship application include a

physician’s report and be served on the proposed ward by a sheriff or constable.

The trial court denied Richard’s motion to dismiss, but determined that it lacked

jurisdiction over the mother’s person and estate for the ten-month period after the

filing of Carolyn’s original guardianship application and consequently declared

void certain orders issued during that period. Carolyn appealed. Concluding that

Carolyn’s attempted appeal is from an interlocutory order, we dismiss for lack of

jurisdiction.

                                  Background

      In March 2008, Carolyn applied to become the permanent guardian over the

person and estate of her mother, alleging that her mother was incapacitated by

Alzheimer’s disease. Richard, who is Carolyn’s brother and also the proposed

ward’s son, moved to dismiss the guardianship proceeding. He challenged the

probate court’s jurisdiction primarily because Carolyn served the guardianship

application using a private process server. Relying on the Probate Code provision

prescribing specific service requirements in guardianship proceedings, Richard


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argued that citation had to be served by a “sheriff or other officer” in order to

confer the probate court with jurisdiction over the proposed ward’s person and

estate. See TEX. PROB. CODE ANN. § 633(c) (West Supp. 2012); see also Whatley v.

Walker, 302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(observing that compliance with section 633’s service requirement is

jurisdictional). Carolyn served an amended guardianship application in January

2009 using a Harris County Constable.

      After considering the motion to dismiss, Carolyn’s response, and the

argument of counsel, the probate court determined that it acquired jurisdiction of

the mother’s person and estate upon service of Carolyn’s amended guardianship

application in January 2009. Accordingly, the trial court denied Richard’s motion

to dismiss but declared void all but a few orders issued before January 2009,

including its prior order appointing a temporary guardian of the proposed ward’s

person and estate. The trial court’s order reads in pertinent part:

      IT IS HEREBY ORDERED that [Richard’s] Motion to Dismiss for
      Lack of Jurisdiction is hereby DENIED, however the Court finds that
      jurisdiction over the person and estate of [the proposed ward] was not
      acquired by the Probate Court until January 27, 2009. The Court finds
      that all previous Orders entered prior to January 27, 2009, except the
      Order appointing Ad Litem pursuant to Tex. Probate Code 646 and
      the Order appointing Court Investigator pursuant to Tex. Prob. Code
      648, are hereby VOID.




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      In four separate but related appeals, Carolyn complains of that part of the

dismissal order declaring void the orders entered before January 2009.1 In

compliance with rule 42.3 of the Rules of Appellate Procedure governing

dismissals in civil cases, this Court issued an order notifying Carolyn of the

possible dismissal of her appeals on the ground that the order is a non-appealable

interlocutory order. See TEX. R. APP. P. 42.3. Carolyn responded. Having now had

the opportunity to review the record in light of Carolyn’s response, we determine

that Carolyn’s appeals should be dismissed as appeals from a non-appealable

interlocutory order.

                                    Jurisdiction

      As a general rule, parties may appeal only from a final judgment. De Ayala

v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001)). Probate proceedings are an exception to the rule

that there may be but one final judgment in a case; in probate proceedings,

“‘multiple judgments final for purposes of appeal can be rendered on certain

discrete issues.’” Id. (quoting Lehmann, 39 S.W.3d at 192). This exception is
1
      Even though the trial court issued its order under a single probate court cause
      number―cause number 378,993―Carolyn appealed the order under three
      additional probate cause numbers―cause numbers 378,993-401; 275,123; and
      275,123-401. These cause numbers generally relate to the administration of a trust
      in Carolyn and Richard’s deceased father’s name and claims appurtenant to the
      guardianship and trust actions. Because we hold that the order appealed from is a
      non-appealable interlocutory order, we dismiss all four appeals without
      considering whether Carolyn may appeal the order under the three additional
      causes.
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justified by the recognized “need to review ‘controlling, intermediate decisions

before an error can harm later phases of the proceeding.’” Id. (quoting Logan v.

McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied). Not every

interlocutory order in a probate proceeding is appealable, however. Id.

      To determine the finality of a probate order for purposes of appeal, we apply

this test from Crowson v. Wakeham:

      If there is an express statute . . . 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.

897 S.W.2d 779, 783 (Tex. 1995); Ajudani v. Walker, 232 S.W.3d 219, 223 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (observing that probate court order is

“functional equivalent of a judgment when it finally disposes of a particular issue

between parties”). Whenever it is proper, parties should “seek severance orders to

eliminate ambiguities about whether [an] order was intended to be final and

appealable.” De Ayala, 193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 783).

      In De Ayala v. Mackie, the Texas Supreme Court dismissed an appeal from a

trial court’s denial of a plea to the jurisdiction and refusal to remove an executor in

an ancillary probate proceeding. 193 S.W.3d at 577−80. The Court reasoned 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”; rather than achieve finality
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by ending a phase of the proceedings, such an order “sets the stage for resolution

of all proceedings” and is therefore interlocutory. Id. at 578−79; see also Fischer v.

Williams, 331 S.W.2d 210, 214 (Tex. 1960) (“Since the order overruling

respondents’ motion to dismiss [in a probate proceeding] failed to finally dispose

of the controverted issue [of whether the will contestants had shown an interest in

the case], it, therefore, amounts to no more than an interlocutory order,

inconclusive in its nature, made in the progress of the trial, and, therefore, not

appealable.”); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex. App.—Fort

Worth 2004, no pet.) (court of appeals lacked jurisdiction to review probate court’s

denial of plea to jurisdiction filed by non-governmental entity); In re O’Bryant,

No. 04-04-00359-CV, 2004 WL 2616323, at *1 (Tex. App.—San Antonio Aug.

11, 2004, no pet.) (mem. op.) (dismissing interlocutory appeal of order denying

jurisdictional plea in probate case for want of jurisdiction).

      Under the reasoning of Crowson and De Ayala, the trial court’s denial of

Richard’s motion to dismiss the entire guardianship proceeding is a

non-appealable, interlocutory ruling. The order has not been severed from the

guardianship proceeding, and Carolyn has not cited, nor can we find, a statute

expressly authorizing her appeal. Section 4A―the general statute authorizing

appeals from probate orders―and section 605―the specific statute authorizing

appeals in guardianship proceedings―both require a “final” order as a prerequisite

                                           7
to appeal. TEX. PROB. CODE ANN. § 4A(c) (West Supp. 2012) (“A final order

issued by a probate court is appealable to the court of appeals.”); Id. § 605 (West

Supp. 2012) (providing same in section titled “General Probate Court Jurisdiction

in Guardianship Proceedings; Appeals”). Even though the order includes the

probate court’s declaration of the date on which it acquired jurisdiction, the

markers of finality are absent here because the order does not dispose of all parties

or issues in any particular phase of the guardianship proceeding. That is, the order

does not resolve the issue of the proposed ward’s capacity, dispose of a discrete

phase of the guardianship proceeding, appoint a guardian, or state that no guardian

will be appointed; instead, the probate court’s refusal to dismiss the guardianship

proceeding sets the stage for later rulings on these issues.

      Carolyn argues that the order is appealable nonetheless because it “purported

to dispose of Carolyn[]’s claims [asserted in a related case] against the temporary

guardian who was appointed” in a voided order. Contrary to Carolyn’s assertions,

however, the probate court’s order on Richard’s motion to dismiss does not state

any disposition of her claims against the temporary guardian. Carolyn has not

cited, nor have we found, any authority establishing that the trial court’s ruling on

Richard’s motion to dismiss bars her claims against the temporary guardian arising

from alleged acts and omissions during the period of the guardianship. And

Carolyn’s citation to Whatley v. Walker, 302 S.W.3d at 314, does not support her

                                           8
argument regarding this Court’s appellate jurisdiction. In Whatley, a case involving

an appeal from a final order appointing a permanent guardian of a person and

estate, our sister court of appeals determined the trial court’s jurisdiction in a

guardianship proceeding. Id. at 320−21 (holding that trial court acquired

jurisdiction in guardianship proceeding through proper service on proposed ward

and certain other persons). Whatley does not address the issue of appellate

jurisdiction over orders, like the one here, denying a motion to dismiss a

guardianship proceeding.

      We hold that the probate court’s order denying Richard’s motion to dismiss

but declaring void certain orders entered before January 2009 is an interlocutory

order that is not appealable. We therefore lack jurisdiction, and we dismiss these

appeals. All outstanding motions are dismissed as moot.

                                 PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.




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