## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00025

- CV

ESTATE OF CHARLES EDWARD LONG, DECEASED

On Appeal from the County Court at Law No. 2

Gregg County , Texas Trial Court No. 2020

- 029 5

- E

Before Stevens , C .J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justi ce Stevens2 

### ME MORANDUM OPINION
We substitute this opinion for our opinion dated June 21, 2023. Larry Thomas Long, e xecutor of the E state of Charles Edward Long (Executor) , and Larry Th omas Long and Lawrence Allan Long, Ind ividually and as C o - Truste es of the John Stephen Long Trust, the Charles Edward Long Trust, the Lawrence Allan Long Trust, and the Larry Thomas Long Trust, and Lawrence Allan Long, as Trustee of the H.L. Long Trust (Tr ustees) (collectively, Appellants) , appeal the trial co urt’s Ma r ch 1, 2023, order granting Barbara Zazulak’s motion for summary judgment and denying the T rustees’ motion for summary judgment (Marc h 1 Order). After rev iewing the clerk ’ s record filed in thi s matter, we noted a potential defect in our ju risdicti o n o ver t his appeal and gave notice to the Appellants of our intent to dismiss the appeal

. Appellants filed respon s e s and contend that th e March 1 Order is a f inal

a nd appealable probate o rd er . Be ca u se we conclude that it is not, we dismiss the appeal for wa nt of jurisdiction.
I. Background Charles Edward Long (Decedent) died on January 3, 2020. On August 24, 2020, the trial court admitted Decedent’s will dated Octobe r 28, 1976 (the Will) , to probate

. Zazulak filed her first amended petition , alleged that she wa s the only chi ld of Decedent, 1 and asserted two causes of action: (1) a will contest in which she asserted that the W ill was inval id and (2) a declarato ry jud gment action in wh ich s he requested the trial court to declare (a) that the residuary clause of

1 The W ill did not identify Zazulak , or any other person , as the child of Decedent

. Rather, the W ill defined “ ‘c hild,’ ‘children,’ ‘descenda n t ,’ [and ] ‘descen dants ’ ” as “ both na t ural children and de scendan ts and those legally ado pt ed into the line of descent. ”3

t h e W ill admitted , i.e., Section IV of the W ill, lapsed and (b) that the Decedent’s residuary estate passed via intestacy to Zazulak

. 2 Later, Zazulak fil ed her first amended motion f or summary ju dgment in which she sought a summary judgment that the resi du a ry bequests under the Will, i.e. , Section IV of the Will, lapsed, and that Decedent’s residuary estate passed by intestacy to
Dece dent’s heirs

- at

- law. The Tr ustees also filed a mot ion for parti al summary judgment and asked for judgment against Zazulak on h er declaratory judgment action. In the March 1 Order, the trial court granted Zazulak ’s motion for summary judgment,
den ied the Trustees’ summary jud gment , and “construe[d] Secti on IV of [the W ill] such that the entire residue of [Decedent]’s estate pa ss e[d] to his heirs

- at

- law, to be determined by [ the trial

court ] .” ( e mphasis added)

. II. This Court Lacks Jurisdiction Over This Ap peal A. Applicable Law “[ T]he g eneral rule, with a few mostly statut ory exceptions, is that an appeal may be taken only from a fi nal judgment.” Lehmann v. Har

- Con Corp

. , 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for purposes of appeal if it dispo ses of all pending par ties a nd claims in the record

. . . . ” Id

. “ Probate and guardianship proceedings present ‘ an except ion to
t h e “ one final judgment ” rule[.] ’ ” In re Guardianship of Jones , 629 S.W.3d 921 , 924 ( Tex. 2021) (alteration in original) (per curiam) (quoting De A yala v . Mac kie , 193 S.W.3d 575 , 578 (Tex. 2 006) (quoting Lehmann , 39 S.W.3d at 192) )

. “[I]n such cas es, mul t i ple judgments final for purposes of appeal can be rendered on certain discrete issues.” Id

. at 925 (alteration in

2 I n the Trustees ’ live pleadings, they denied those allegation s .4

origi nal) (quoting De Ayala , 19 3 S.W. 3d at 578). “ This excep tion reflects the necessity of reviewing ‘ “ controlling, intermediate de cis ions b efore an error can harm later phases of the proceeding[.] ” ’” Id

. (alteration in original) (quoting De Ayala , 193 S.W.3d at 578).
In Crowson v. Wakeha m , the Texas Supreme Cou rt establishe d the test fo r finality of a discrete phase of probate and gu ardianship p roceedings. Crowson v. Wakeham , 897 S.W.2d 779, 783 (Tex. 1995). The court “ explained that an order disposing of all issues and all partie s ‘ in the phase of the proceed ing for which it was brought ’ is final and app ealable ev en when th e
procee ding r emai ns pending as to other issues. ” In re Guardianship of Jones , 629 S.W.3d at 925 (quoting Crowson , 897 S.W.2d at 78 3). Under both Lehman n and Crowson , “ an order that actual ly disposes o f all issues and parties at the relevant st age of the proceed ings i s fi na l. ” Id

. (citing Lehmann , 39 S.W.3d at 205; Crowson , 897 S.W.2d at 783). However, in probate and guardianship p roceedings, “if there is a p roceeding of which the order i n question ma y logically be considered a part, but one o r more ple adings a lso pa rt o f that proceeding raise issues or parties not disposed of, then the probate order is interlocutory

. ” 3 Crowson , 89 7 S.W.2d at 783.
B. The Appellants ’ Contention s The Appellants contend th at “multiple Texas courts have recognized that an order det ermining a wil l’s va lidity or construing a wil l is a final order for purposes of appeal. ” Regarding will construction, t hey rely on t wo cases. They cont end th at the Austin Court of

3 Crowson also held that , “[i]f t here is an express statute, such a s the one for the compl ete h eir ship ju dgment, declar ing the phase of the probate proceedings t o be final and appealable, that stat ute controls. ” Crowson , 897 S.W.2d at 783 . In this case, the Appellants do not contend that there is an express statute that de c l ares th e phase releva nt t o th is c ase to be final a nd appe alable.5

Ap peals in San ders v. Cap itol Area Council 4 concluded that a summary judg ment ord er t ha t

co ns trued a will to determine whether certain property was estate property or property of a trust was immediately ap pealable. However, as we ha ve prev iously noted regarding Sanders , “ the
Aust in court avoided making a specific holding on th e issue of whe ther t he partial summary judgment was an appealable probate order ” and “conclude[d] that [it] had jurisdiction on an entirely different bas is.” In re Es t. of Davi s , No. 06

- 07

- 00033

- C V , 2007 WL 2609929 , at * 4 (Tex. App.

— Texarkana Sept. 12, 2 007, no p et.) (mem

. op.)

. In Sanders , the court noted that the trial court had order ed the case, which involved se veral causes of action , to proceed in th ree phases, o ne of which was “the causes of action seeking d eclarations construing the trusts an d the will .” Sand er

s , 930 S.W.2d at 909. Although i t noted that t he partial summary judgment may have completed the phase of the probate proceeding s set out in the trial c ourt’s procedural order, it ul timately “ assume [d] without deciding that the partia l summary judg m ent c hallenged [there] was not, itself, an appealable order.” Id

. The Appellants also rely on Gordon v. Gordon in support of their argume nt that the

c onstruction of a will ends a discrete p hase of the probate pro ceedings. Gordon v. Gordon , No. 11

- 14

- 00086

- C V, 2016 WL 1274076 (Tex

. App.

— Eastland Mar

. 31, 2016, pet. denied) (mem. op.)

. In that case, a dispute aro se between the executo r of t he estate of Patrick Gordon and Patrick’s widow, Be verly Gordon , over certain p roperty that Patrick and Bev erly had p lace d in their revocable t ru st before Patrick’s death

. Id

. at * 2. The executo r filed a declaratory j udgment action and ass erted that the property belo nged to Patrick’s estate. Beverly res ponded

4 Sanders v. Cap

. Area Counc il , 930 S.W.2d 905 ( Tex. App

. — Austin 1996, no writ )

.6

with a mot ion for s ummary judgment and ar gued that Patric k’s in terest in the trust be came irrevocable on his death

. 5 The executor argued that a joint will e xecuted by Patrick and Bever ly , which contained a clau se that read , “This Will shall overrid e any prior allocations d escribe d in trust document ,” revoked th e trus t

. Id

. The trial c ou rt granted Beverly’s motion for summary judgment, held that the testament ary clause had no effe ct aft er Patrick’s death, and c oncluded that the joint will did not r evoke t he trust and that t he property was an asset of the trust, not
P a trick’s estate. Id

. On appeal, the Eastland court held that it had jurisdiction over t he appeal of the trial court ’s order because “[t]he trial c ourt’s order completely disposed of th e issue regarding the effec t of the jo int will on the status of t he Tr u st. ” Id

. (em phasis ad ded) (citing De Ayala , 193 S.W.3d at 578 )

. In other words, the tr ial court’s order disp osed o f every issue raised by the

exe cutor’s declaratory judgment action a g ainst Beverly . As a result , it “ actua lly dispos e [d] of all issues and parties at the relev an t stage of the proceedings .” In re Guardianship of Jones , 629 S.W .3d at 925. C. Analysis
T he A ppellants also briefly di scuss In re Est ate of Rhoades in support of th eir contention

. In re Est

. of Rhoade s , No. 02

- 15

- 000 81

- CV, 2015 WL 365 8 06 5 (Tex. App.

— Fort Worth
June 11, 2015, no p et .) (mem. op.)

. Nevertheless, th e holdi ng in that case is con trary to the
A ppell ants ’ contention. In that case, Glenda Rhoades’ s heirs

- a t

- law filed a declaratory judgment actio n and so ught a dec larati on that Rh o ades’s estate passed to them under the residu ar y clause of h er will because the beques ts made to Rhoades’s f ather faile d. T he heirs

- at

- law also asked for

5 The trust agreement provided that upon the death of either Patrick or Beverly , “the Trust became irrevocabl e as to t h e d eceased settlor.” Gord on , 2016 WL 1274 076 , at * 1.7

the recovery of their atto rney fees

. Id

. at *1. Kinl er , who was a con tingent be neficiary under
Rh o ades’s will, also filed a declaratory j udgm en t action and s ought a declarat ion that , since Rhoade s’s fa ther predeceased her , the entire estate passed to Kinler. Kinler also asked f or the recovery of her attorney fees. Bo th parties fi led motions for summ a ry judgment on their respective will cons tr uction claims, but Ki nler did not ask for s ummary judgment on her claim for attor ney fees. Id

. The trial court granted Kinler’s motion f or summary judgmen t and denied the heirs

- at

- law’s mot ion. Id

. at *2. The heirs

- at

- law appealed. Id

. On appeal, t he Fort Worth court con sidered “ whether the o rder d isposed of all issues in the phas e of the proceeding for which it was brought .” Id

. It n oted that “[t]he relevant and discrete port ion of the probate proceeding p r esented through the parties’ declaratory

- j udgment petitions and competing motions for summa ry judgment was a determinat ion o f the effect of the failure of Rhoades’s devise to her fa ther .” Id

. It a lso characterized this “di screte pha se” as “the

construct i on of the will.” Id

. (citing Sanders , 9 30 S.W.2d at 909

– 10)

. The court reasoned tha t

“ if the trial court’s order disp osed of all issues implicated in tha t phase of the proceeding, it was final for purposes of appeal even t hough othe r probate issues unre l ated to the construction of the will rem ai ned pending. ” Id

. H owever, i n dismissing the ap peal for want of jurisdictio n, th e

cour t held that “ Kinler’s outstanding claim for attorne y’s fees render [ed] the trial court’s
summary - judgment o rder not final for purposes of appeal. ” Id

. (citing Haluska v

. HaluskaRau sch , No. 03

- 11

- 00312

- C V, 201 2 WL 254639, at *2 (Tex. App.

— Austin Jan. 24, 2012, no pet.) (mem. op.); In re Est

. of Willett , 21 1 S.W.3d 364, 367 (T ex. App.

— San Antonio
200 6, no pet. ); Villarreal v. Zuk o wsky , 54 S.W.3d 926, 929

– 30 (Tex. App.

— Co rp us Christi

–8

Edinburg 20 01, no pet. ) ). I n other words, because there were out stand ing issues in Kinler’s declaratory judgment action that s ought construction o f the will and that were not addresse d in the summary j udgment order, the order had not disposed of al l issue s implicated in that p hase o f the proceeding and was not final fo r pur poses of appeal. 6 See also In re Est. of Silverman , No. 14

- 17

- 00891

- CV, 2018 WL 344109 (Tex. App.

— Houston [14th Dist.] Jan. 9 , 20 1 8 , no pet.) (per curiam) (mem. op.) ( holding that su mmary ju dgment on decl arator y judgment that sought construction of w ill a nd attorney fees that only address ed construction of will did not dispose of all issues i n a particular phase of probate pr oceedin g s ); In re Est

. of Willett , 211 S.W.3d 364 , 367 (Tex. App

. — San Antonio 2006 , no p et

. ) ( holding that partial summary judgm ent o rder that construed will , but did not address other issue s in petition , did not dispose of all issues and was not appe a lable ); Vil l a rrea l v. Zukowsky , 54 S.W.3d 926, 929

– 30 (Te x. App.

— Corpus Christ i

– Edi nb urg 2001, no pet.) (same)

. Similar to In re Est ate o f Rhoades , the relevant and discrete portion of the proba te proceeding presented through Zazulak’s decl aratory judgment action and m otion for summary judgment wa s a determinati on of the effect of t he fail ur e of the residuary clause of the Will

. In

6 The Appellants also cite Kongs v

. H armon in su pport of their contention that the inclusion of an additional claim in a petition that also seeks a construction of t he will does not prevent a summ a r y judg m e nt on the will const ru ction claim from be ing fin al an d ap pealable. Kongs v. Harmon , N o. 03

- 9 7

- 004 44

- CV, 1998 WL 394177 (Tex. App.

— Austin July 16, 199 8, pet

. denied)

. However, in Kongs , the decedent’s son , Eric, filed a pe tition th at ch allenged t h e valid i ty of the decedent’s w ill and sought to s et asid e th e probate court’s order admitting her w il l to probate and issuing letters testamentary to his aunt, Bonnie. In an amended pleading, Eric added a claim against Bonnie for breachin g her fiduciary d uties w h ile she was acting a s the decedent’s guar dian ba sed on Bonnie’s changing the beneficia ry on a deat h benefit from Eric to the deced ent’s estate. Id

. at *1. On appeal, the court of appeals held that the trial court’s order determin ing t he validit y of the w ill concluded a part ic ular phase of the e state a nd held that Eric’s claim regarding t he de at h bene fit did not affect the appealability of the order. Id

. at *2. The court went on to note that “ Eric’s assertion that Bonnie wrongf ully changed the b eneficia ry of the death bene fit forms a distinct legal c lai m arising from a set of circumstan ces s ep ar ate f rom his challenge to the will .” Id

. In contrast, Zazulak’s request in her declaratory judgment action that the trial court d eclar e tha t the Deced e n t’s resi duary estate passed by intestacy to her i s direc tly based on her request that the trial co ur t deter mine that the residuary clause of the Will lapsed.9

he r dec laratory judgment action , Z azulak sought both a declarati on that the residuary clause of the W ill lapse d and that the Dece d e nt ’s re s iduary estate passed via inte stacy to her. The March 1 Order de termine d t hat the residuary clause lapsed, but it did n ot de termine th at Z azulak was the Decedent’s sole heir

- at

- law or that the residuary estat e passed to her

. Because the March 1
O r der doe s not disp ose of all parties and issues at this stage of the pro ceeding , it is not a final , appealable order

. See In re Guar dianship of Jones , 629 S.W.3d at 925. As a result, we do not have jurisdiction over this appeal.
III. C on clusio n Because we fi n d that t h e March 1 Orde r was not final and app eal able, we are without jurisdi ction over t hi s appeal. As a result, w e dismiss th e app eal for want of jurisdiction.

Scott E. Stevens Chief Justice Date Submitted: June 2 0 , 2023 Date Decided: J u n e 29 , 2 0 23