=
In=20 The
For=20 The
MARJORIE =
THOMPSON=20
AND GEORGE THOMPSON, Appellants DAVID =
MYROW,=20
Appellee
On =
Appeal from=20
Probate Court No. 3 Harris =
County,=20
Texas Trial =
Court Cause=20
No. 343,430-401
MEMORANDUM=20
OPINION Appellants, Marjorie Thompson =
and her son=20
George Thompson, challenge the trial court's January 11, 2007 =
order=20
denying Marjorie Thompson's "Motion for Summary Judgment On Her =
Statutory=20
Bill of Review." In two issues on appeal, Thompson argues that the =
trial=20
court erred in probating the purported nuncupative will of =
decedent, Eula=20
Mae Myrow, and that the trial court exceeded its statutory =
jurisdiction by=20
creating an independent administration and appointing appellee, =
David=20
Myrow, as independent administrator. We dismiss the appeal for lack =
of=20
jurisdiction. The underlying probate =
proceeding=20
involves the estate of Eula Mae Myrow ("the decedent"). On July =
11, 2003,=20
the decedent broke her hip and was admitted to the hospital. On =
July 16,=20
2003, the decedent made a nuncupative will designating David =
Myrow,=20
appellee, as the sole beneficiary of her estate. On July 21, 2003, =
the=20
decedent was transferred to the intensive care unit of a different =
hospital. On July 26, 2003, Marjorie =
Thompson=20
withdrew $267,373.45 from bank accounts belonging to the decedent =
under=20
the authority of a durable power of attorney. The decedent passed =
away on=20
July 31, 2003. In November 2003, Marjorie Thompson transferred=20
approximately $129,000 of the money to her son, George=20
Thompson. On December 12, 2003, Myrow =
filed an=20
"Amended Application to Probate the Nuncupative Will and for =
Issuance of=20
Letters Testamentary or, in the alternative, Letters of =
Administration."=20
On February 18, 2004, the trial court signed an order admitting =
the=20
nuncupative will to probate and authorizing letters of=20
administration. Myrow then filed a suit in the =
same court=20
against the Thompsons, alleging that they misappropriated funds =
from the=20
decedent's estate and claiming conversion, fraud, breach of =
fiduciary=20
duty, and tortious interference with inheritance rights. On =
February 17,=20
2005, Marjorie Thompson filed her Second Amended Petition, in =
which she=20
added a counter-claim of promissory estoppel, seeking the =
imposition of a=20
constructive trust on the property in decedent's estate. =
Thompson's second=20
amended petition also sought a bill of review On January 11, 2007, Marjorie =
Thompson=20
filed a motion for summary judgment on her statutory bill of =
review. On=20
the same day, the trial court signed an order denying her motion =
for=20
summary judgment. In the order, the trial court stated that "the =
Court is=20
of the opinion that there exist genuine issues of material fact =
which=20
preclude the granting of summary judgment and, therefore, summary =
judgment=20
should be denied." Thompson filed a notice of appeal on February =
9,=20
2007. Myrow challenges this Court's=20
jurisdiction to hear this appeal on the grounds that the trial =
court's=20
denial of Marjorie Thompson's motion for summary judgment was=20
interlocutory. Generally, parties may appeal =
only from a=20
final judgment. Brittingham-Sada de Ayala v. Mackie, 193 =
S.W.3d=20
575, 578 (Tex. 2006); Bozeman v. Kornblit, 232 S.W.3d =
261, 262=20
(Tex. App.--Houston [1st Dist.] 2007, no pet.). The Texas Probate =
Code=20
provides, "All final orders of any court exercising original =
probate=20
jurisdiction shall be appealable to the court of appeals." Tex. =
Prob. Code=20
Ann. =A7 5(g) (Vernon Supp. 2007). However, probate proceedings =
frequently=20
create exceptions to the "one final judgment" rule because a trial =
court=20
may sign several orders during the pendency of a probate =
proceeding that=20
are final on a "discrete issue." Brittingham-Sada de =
Ayala, 193=20
S.W.3d at 578; Bozeman, 232 S.W.3d at 262-63; see =
also Young=20
v. First Comm. Bank, 222 S.W.3d 454, 457 (Tex. App.--Houston =
[1st=20
Dist.] 2006, no pet.) (noting that there may be but "one final =
judgment=20
rendered in any cause," pursuant to Texas Rule of Civil Procedure =
301,=20
except when "specially provided by law"). Texas courts have struggled =
with=20
determining when "an otherwise interlocutory probate order is =
final enough=20
to qualify for appeal." Brittingham-Sada de Ayala, 193 =
S.W.3d at=20
578. In Brittingham-Sada de Ayala, the Texas Supreme =
Court=20
discussed two factors that courts should consider when determining =
whether=20
a probate court's order is appealable. Id. Orders are =
appealable=20
when the trial court has adjudicated a "substantial right" and =
when "the=20
order dispose[s] of all issues in the phase of the proceeding for =
which it=20
was brought." Id. (citing Crowson v. Wakeham, =
897 S.W.2d=20
779, 782-83 (Tex. 1995)). The Brittingham-Sada de =
Ayala=20
court then stated the following test: If there is an express statute, =
such as=20
the one for the complete heirship judgment, declaring the phase of =
the=20
probate proceedings to be final and appealable, that statute =
controls.=20
Otherwise, if there is a proceeding of which the order in question =
may=20
logically be considered a part, but one or more pleadings also =
part of=20
that proceeding raise issues or parties not disposed of, then the =
probate=20
order is interlocutory. Id. (citing =
Crowson,=20
897 S.W.2d at 783). Therefore, "[A]n order that merely 'sets the =
stage'=20
for further resolution is interlocutory and not appealable."=20
Bozeman, 232 S.W.3d at 263 (citing Brittingham-Sada =
de=20
Ayala, 193 S.W.3d at 579). Here, Marjorie Thompson is =
attempting to=20
appeal the trial court's order denying her motion for summary =
judgment on=20
her petition for a bill of review. Thompson's petition for a bill =
of=20
review started a new phase of the proceeding by requesting that =
the trial=20
court reexamine its previous order admitting the nuncupative will =
to=20
probate. See Tex. Prob. Code Ann. =A7 31 (Vernon 2003)=20
( In denying Marjorie Thompson's =
motion for=20
summary judgment, the trial court has not denied her the relief =
she=20
requested in her petition for a bill of review; rather, the trial =
court=20
found that summary judgment was improper because there remain =
genuine=20
issues of material fact to be resolved. Furthermore, the trial =
court's=20
order denying Thompson's motion for summary judgment did not =
address her=20
promissory estoppel claim seeking the imposition of a constructive =
trust=20
or her claim that the decedent lacked the capacity to execute a=20
nuncupative will, both of which were raised in her second amended =
petition=20
but were not addressed in her motion for summary judgment. We conclude=20
that the January 11, 2007 order denying Marjorie Thompson's motion =
for=20
summary judgment did not "dispose of all issues in the phase of =
the=20
proceeding for which it was brought," but "merely set[] the stage =
for the=20
resolution of all proceedings" related to her petition for a bill =
of=20
review. See Bozeman, 232 S.W.3d at 264 (citing=20
Brittingham-Sada de Ayala, 193 S.W.3d at 578-79). =
Accordingly, this=20
Court has no jurisdiction to consider this appeal. See =
Tex. R.=20
App. P. 42.3(a).Conclusion We dismiss=20
the appeal for lack of jurisdiction. Evelyn V.=20
Keyes Panel=20
consists of Chief Justice Radack and Justices Keyes and =
Higley. 1. Section 31 of the Texas Probate Code =
provides that=20
"[a]ny person interested may, by a bill of review filed in the =
court in=20
which the probate proceedings were had, have any decision, order, =
or=20
judgment rendered by the court, or by the judge thereof, revised =
and=20
corrected on showing error therein." Tex. Prob. Code Ann. =A7 31 =
(Vernon=20
2003).=20
2. Marjorie Thompson argues that this Court =
has=20
jurisdiction to hear this appeal under Kay v. Sandler, =
718 S.W.2d=20
872, 873 (Tex. App.--Houston [14th