In the Matter of the Estate of Eddy Colbert Carr v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 7, 2024
• Docket: 04-23-00287-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-23-00287-CV

IN THE MATTER OF THE ESTATE OF Eddy Colbert CARR

From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. 2022-PC-0301 Honorable Kirsten Legore, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice

Delivered and Filed: August 7, 2024

DISMISSED FOR LACK OF JURISDICTION

Appellant Gladys Carr attempts to appeal two probate court orders. Because we conclude

one order is moot and the other is interlocutory, we dismiss the appeal for lack of jurisdiction. See

TEX. R. APP. P. 43.2(f).

BACKGROUND

Eddy Colbert Carr died in August 2022 in Guadalupe County, Texas. The following month,

his son Michael Carr applied to have his father’s will admitted to probate and sought appointment

as the independent executor. Gladys then opposed the application and contested the will. On

February 22, 2023, the will was admitted to probate, and Michael was appointed as dependent

executor. Gladys opposed the February 22 order by filing a “jury trial demand” for her will contest, 04-23-00287-CV

a discovery motion, and a motion for a new trial. On March 8, 2023, the trial court set aside the

February 22, 2023 order.

Thereafter, Gladys filed a notice of appeal attempting to appeal the February 22, 2023 order

and the March 8, 2023 order.

APPELLATE JURISDICTION

A. The February 22, 2023 Order

Although Gladys does not raise whether this court has jurisdiction to hear this appeal, “we

are obligated to review sua sponte issues affecting our appellate jurisdiction.” 1 Gruss as Tr. of

Gallagher Fam. Tr. v. Gallagher, No. 14-21-00332-CV, 2023 WL 1988320, at *3 (Tex. App.—

Houston [14th Dist.] Feb. 14, 2023, no pet.) (mem. op.) (citing M.O. Dental Lab v. Rape, 139

S.W.3d 671, 673 (Tex. 2004)). 2 One jurisdictional issue is mootness. See State ex rel. Best v.

Harper, 562 S.W.3d 1, 6 (Tex. 2018) (explaining when case becomes moot, court loses

jurisdiction). The mootness doctrine—“a constitutional limitation founded in the separation of

powers between the governmental branches”—requires us to dismiss moot appeals. Elec.

Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d

628, 634 (Tex. 2021). An appeal is moot if, among other things, “(1) a justiciable controversy no

longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the

case’s outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties’

rights or interests,” or if “(4) any decision would constitute an impermissible advisory opinion.”

Id. at 634–35.

1 Appellee Michael Carr did not file a brief. 2 “Whether we have appellate jurisdiction is a question of law that we review de novo.” Khanduja v. Scheffler, No. 01-22-00273-CV, 2024 WL 332995, at *4 (Tex. App.—Houston [1st Dist.] Jan. 30, 2024, no pet.) (mem. op.).

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Here, Gladys filed a notice of appeal attempting to appeal the February 22, 2023 order.

However, the record shows that order was set aside in the March 8, 2023 order. Because the

February 22, 2023 order has been set aside and is no longer in effect, the order is not reviewable;

and if we were to review it, our review would result in an impermissible advisory opinion. See id.

at 634–35; see also In re Est. of Munoz, No. 04-17-00218-CV, 2017 WL 3270338, at *1 (Tex.

App.—San Antonio Aug. 2, 2017, no pet.) (per curiam) (mem. op.) (providing “[b]ecause the order

upon which the notice of appeal is based has been set aside, we agree with appellee that the appeal

is moot”); In re Est. of Trevino, No. 04-04-00610-CV, 2004 WL 2237706, at *1 (Tex. App.—San

Antonio Oct. 6, 2004, no pet.) (per curiam) (mem. op.) (dismissing appeal where order forming

basis of appeal no longer in effect and appeal therefore became moot).

Accordingly, we must dismiss the appeal of the February 22, 2023 order as moot.

B. The March 8, 2023 Order

Turning to Gladys’s appeal of the March 8, 2023 order, the order “set[s] aside” the

February 22, 2023 order admitting the will to probate and appointing Michael as the dependent

administrator. In general, “appeals may be taken only from final judgments.” De Ayala v. Mackie,

193 S.W.3d 575, 578 (Tex. 2006). “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.’” Id. (quoting Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192 (Tex.

2001)).

“Not every order entered in a probate case is appealable, however.” Khanduja, 2024 WL

332995, at *4. If a probate order issues pursuant to a statute that “declares a particular phase of

probate proceedings to be final and appealable,” then “the statute controls.” Id.; see, e.g., TEX.

EST. CODE § 202.202(a) (“The judgment in a proceeding to declare heirship is a final judgment.”).

See generally De Ayala, 193 S.W.3d at 578 (“If there is an express statute, such as the one for the

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complete heirship judgment, declaring the phase of the probate proceedings to be final and

appealable, that statute controls.” (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.

1995)). “In the absence of such a statute, a probate order is final and appealable only if it disposes

of all issues in the phase of the proceeding for which it was brought.” Khanduja, 2024 WL 332995,

at *4. See generally De Ayala, 193 S.W.3d at 578 (“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.”

(quoting Crowson, 897 S.W.2d at 783)). “If an order disposes of a phase of the proceeding that ‘if

asserted independently, would be the proper subject of a lawsuit,’ then the order is appealable.”

Khanduja, 2024 WL 332995, at *5 (quoting De Ayala, 193 S.W.3d at 578). “On the other hand,

the order is interlocutory—and thus not appealable—if it ‘does not end a phase of the proceedings,

but sets the stage for the resolution of all proceedings.’” 3 Khanduja, 2024 WL 332995, at *5

(quoting De Ayala, 193 S.W.3d at 579).

Here, there is no statute providing that an order setting aside another order admitting a will

to probate and appointing a dependent administrator is final and appealable. 4 See Khanduja, 2024

WL 332995, at *4. Nor does the order end any phase of any proceeding or dispose of any

substantive claim or issue. Instead, the order sets the stage for the resolution of later proceedings:

the will contest and the appointment of an executor. 5 See id. at *5; see also De Ayala, 193 S.W.3d

at 578 (providing order denying motion to dismiss an entire proceeding for want of subject matter

jurisdiction did not dispose of claim and more akin to “a prelude than a finale”); In re Est. of

3 Such an order “may be made final [and appealable] by a severance order.” Crowson, 897 S.W.2d at 783. 4 Nor was the order made final by a severance order. See Crowson, 897 S.W.2d at 783. 5 Shortly after the order was issued, the probate court issued an order appointing a temporary dependent administrator for the pendency of the will contest brought by Gladys.

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Coleman, 360 S.W.3d 606, 611 (Tex. App.—El Paso 2011, no pet.) (providing where order

granting new trial that set aside previous order admitting will to probate “essentially wipes the

slate clean and starts over”).

Because we conclude the March 8, 2023 set-aside-order is not final or appealable, we do

not have appellate jurisdiction to consider the order on appeal. See De Ayala, 193 S.W.3d at 578;

Khanduja, 2024 WL 332995, at *4.

CONCLUSION

Accordingly, we dismiss the appeal for lack of jurisdiction.

Luz Elena D. Chapa, Justice

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