J.A. "Jay" Asafi as Independent Administrator of the Estate of Alosia Smith Rauscher, and Todd Reagan Smith v. Martin J. Rauscher

Dismissed and Memorandum Opinion filed December 3, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-09-00800-CV ____________ J.A. (“JAY”) ASAFI, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ALOSIA SMITH RAUSCHER, Deceased, and TODD REAGAN SMITH, Appellants V. MARTIN J. RAUSCHER, Appellee On Appeal from the Probate Court No 2 Harris County, Texas Trial Court Cause No. 381,121 M E M O R A N D U M   O P I N I O N This is an attempted appeal of three partial summary judgment orders entered in a probate proceeding. Appellant Asafi, on behalf of the Estate, filed suit asserting that the Estate may have an interest in certain accounts held in the name of the decedent. Appellant Smith, the decedent’s son, claimed ownership of the accounts pursuant to an assignment executed by Asafi as the decedent’s attorney-in-fact nine days before her death. Appellee, the decedent’s husband, filed motions for partial summary judgment asking the probate court to determine that he was the owner of the funds or stock in three of the disputed accounts by non-testamentary transfers pursuant to Sections 451 and 452 of the Texas Probate Code. See Tex. Prob. Code Ann. §§451, 452 (Vernon 2003). The trial court granted the motions and this appeal followed. Generally, appeals may be taken only from final judgments. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The orders are clearly not final in the traditional sense. The orders each state that appellee’s motion for partial summary judgment is granted; the orders contain no language of finality. The probate proceedings have not been concluded. Appellant Asafi, as independent administrator, has not yet filed an inventory and list of claims against the Estate. Trial is scheduled for February 22, 2010. Probate proceedings are an exception to the “one final judgment” rule; in such cases, multiple judgments may be final for purposes of appeal on certain discrete issues. Lehmann, 39 S.W.3d at 192. The Texas Supreme Court has adopted the following test for determining the finality of orders in probate cases: 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. Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). To be considered final, the order must dispose of all issues in the “phase of the proceeding” for which it was brought. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Appellants did not seek severance orders after the partial summary judgments were granted. See Crowson, 897 S.W.2d at 783 (suggesting that parties seek a severance order for purposes of finality). No statute expressly declares this phase of the probate proceedings to be final. See id. Therefore, we must determine whether the pleadings raise issues that have not been disposed of in this phase of the proceedings. See id. Because it appeared that the partial summary judgment orders may be interlocutory, notification was transmitted to the parties of our intention to dismiss the appeal for want of jurisdiction unless appellants filed a response demonstrating that this court has jurisdiction over the appeal. See Tex. R. App. P. 42.3(a). Appellants filed a response, and appellee filed a motion to dismiss the appeal for want of jurisdiction. The orders that appellants have attempted to appeal do not satisfy the Crowson test. According to the pleadings, appellant Asafi has pending claims against appellee seeking the turnover of the subject accounts and for a constructive trust. Appellant Smith has pending claims against appellee for tortious interference, fraud and unjust enrichment. Appellee has a pending declaratory judgment action and a claim for intentional infliction of emotion distress against appellants. Appellee asserts that there is another motion for partial summary judgment pending to determine whether other accounts have passed to appellee by non-testamentary transfer or are Estate assets. Appellee also asserts a motion is pending to remove Asafi as Independent Administrator. These pleadings raise other, related issues that have not been resolved. See In re Estate of Frenzel, No. 13-07-00341-CV, 2009 WL 2192656 *3 (Tex. App.—Corpus Christi Jul. 23, 2009, no pet.) (mem. op.) (holding “final” judgment in declaratory action was interlocutory because it did not dispose of all issues raised in the action). The partial summary judgments in this case have not concluded a “particular phase of the proceedings;” instead, they are interrelated to the issues that remain pending before the court. The partial summary judgment orders are only part of the ongoing process to determine what assets are included in the Estate. In appellants’ response, they urge that review of these partial summary judgment orders is appropriate because any error may harm later phases of the proceedings. See De Ayala, 193 S.W.3d at 578 (recognizing the justification for permitting appeals from multiple judgments in probate cases is to prevent harm in later phases). They rely on Majeski v. Estate of Majeski, in which an order determining the homestead status of property was found to be final and appealable, even though claims remained as to other estate assets. 163 S.W.3d 102 (Tex. App.—Austin 2005, no pet.). The court of appeals determined that the homestead question was the only dispute at issue at that stage of the probate proceedings. Id. at 106. We conclude that this case is more akin to the situation in Crowson. There, the trial court granted a partial summary judgment determining that a will contestant was not the common law wife of the decedent. 897 S.W.2d at 780. Even though this ruling adjudicated a substantial right as to the will contestant, it left pending all the other claims against the will contestant. Id. at 782-83. The Texas Supreme Court determined that the “phase of the proceedings” was the whole heirship proceeding. Id. at 783. We hold that under Crowson, the trial court’s orders in this case are interlocutory and not subject to immediate appeal because they do not dispose of all parties or issues in a particular phase of the proceedings below. Accordingly, we are without jurisdiction over the appeal and order it dismissed. PER CURIAM Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.