In the Guardianship of Murphy

1 S.W.3d 171, 1999 WL 549025

• Court: Court of Appeals of Texas
• Decided: October 21, 1999
• Docket: 2-99-132-CV
• Status: Published

Opinions

OPINION

RICHARDS, Justice.

Dottie Murphy and Frances Marie Murphy have appealed the trial court’s order transferring the business of the ward’s guardianship from Wichita County to Harris County under section 612 of the probate code. See Tex. PROb.Code Ann. §§ 612-614 (Vernon Supp.1999). On May 20, 1999, we notified appellants of our concern that we lack jurisdiction over this appeal because the transfer order is not a final, appealable order. We further notified appellants that the appeal would be dismissed unless they or any party desiring to continue the appeal filed a response showing grounds for continuing the appeal. See Tex.R.App. P. 42.3. Appellants have responded ably and at length, raising several thought-provoking arguments in favor of our jurisdiction. After careful consideration, however, we conclude that the transfer order is not final and appealable. Accordingly, we dismiss the appeal for want of jurisdiction.

A final order of a court that exercises original probate jurisdiction is ap-pealable to this court. See Tex. PROb.Code Ann. §§ 5(f), 606(f) (Vernon Supp.1999). To be final and appealable, the order need not fully dispose of the entire proceeding. See Crowson v. Wakeham, 897 S.W.2d 779, 782 (Tex.1995). Instead, the reviewing court applies the following test to determine whether the order is final and ap-pealable:

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.

Id. at 783; see also A & W Indus. v. Day, 977 S.W.2d 738, 740 (Tex.App.—Fort Worth 1998, no pet.).

The probate code does not provide that a section 612 transfer order is final and appealable; thus, the order is not final unless it disposes of all parties and issues at a particular phase in the ward’s guardianship proceeding. In this case, the transfer order is not final and appealable because it did not dispose of any parties or issues in any particular phase of the guardianship. The order just changed the venue in which those issues and parties will be decided. See, e.g., Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex.App.—Houston [1st Dist.] 1995, no writ) (holding that transfer order under section 608 of probate code did not resolve a severable claim and therefore could never, by itself, be appealable under Crowson).

Appellants cite several cases in which venue rulings concerning guardianships were appealed before the entire guardianship proceeding was disposed of. See, e.g., In re Hersey’s Guardianship, 93 S.W.2d 810, 812 (Tex.Civ.App.—San Antonio 1936), judgment dism’d as moot sub nom, Holland v. Bailey, 133 Tex. 150, 127 S.W.2d 446 (1939, op. adopted); In re Estate of Izer, 693 S.W.2d 481, 483-84 (Tex.App.—Corpus Christi 1985, writ ref'd n.r.e.). But all of these cases predate Crowson, and, with one exception, they also predate the enactment of legislation prohibiting an interlocutory appeal from a venue determination. See Tex. Crv. PRAC. & Rem.Code Ann. § 15.064(a) (Vernon 1986) (providing that “[n]o interlocutory appeal shall lie from the [venue] determination.”); see also Tex.R. Civ. P. 87(6) (“There shall be no interlocutory appeals from [a venue] determination.”). In addition, none of the cases discuss the appellate jurisdiction issue.

At oral argument, appellants contended the Crowson test is comprised of two components: (1) does the order being appealed completely finish a distinct, separate phase of the guardianship proceeding; and (2) if so, did the order involve a substantial right? If both of these elements are present, appellants contend the order at issue is final and appealable.

Appellants also devote a significant portion of their argument to their contention that the transfer order is final and appeal-able because it affects a substantial right. We do not reach this issue, however, because, as we have discussed, the transfer order did not dispose of any phase in the ward’s guardianship proceeding. There is case law to the effect that whether a probate order adjudicates a substantial right factors into the finality determination. See, e.g., Spies v. Milner, 928 S.W.2d 317, 318 (Tex.App.—Fort Worth 1996, no writ); Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex.App.—Corpus Christi 1993, no writ). Most of these cases predate Crowson, however, and they do not discuss the Crowson test. Crowson itself discusses the “substantial right” language but does not include it in the test for determining finality. See Crowson, 897 S.W.2d at 783. Consequently, we question whether the “adjudication of a substantial right” inquiry is still viable post-Oowsow. Moreover, at least one Texas court has held an order granting or denying a motion to transfer under section 608 of the probate code does not affect the substantial rights of any party and therefore is not final. See Grounds v. Lett, 718 S.W.2d 38, 39 (Tex.App.—Dallas 1986, no writ).

Appellants also argue that, if the transfer order itself is not final, they will not be able to appeal it until the guardianship is terminated, which may not be until the ward dies. By making this argument, appellants say too much. If the guardianship proceeding itself is a single phase, the transfer order is interlocutory and not ap-pealable. Conversely, if a motion to transfer could be a phase in a guardianship proceeding (which it is not, in this case), then a guardianship has multiple phases. Appellants can appeal the transfer order after entry of any order disposing of all issues and parties in any one of those phases.¹ The fact that the order would be appealed to a Houston appellate court rather than this court should not factor into the jurisdiction determination.

Because the transfer order at issue did not dispose of any parties or issues in any particular phase of the ward’s guardianship proceeding, it is not final and appeal-able, and we lack jurisdiction to review it. Accordingly, we dismiss the appeal for want of jurisdiction.

1 . Since appealing the transfer order, appellants have also appealed several other orders in the ward's guardianship proceeding: a sanctions order; an order dismissing causes of action in Archer and Wichita Counties; an order granting the ward’s motion in limine that appellants have interests adverse to the ward; another transfer order; and an order terminating the guardianship. Appellants have acted to perfect their appeals of these matters in both this court and the First or Fourteenth Court of Appeals. They do not explain why the transfer order would not be appealable with any one or all of these other orders, which, presumably, appellants believe are final.