1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
- 1 3
- 00 470
- C V



### ____________________
IN THE ESTATE OF CHAD ERIC MCDONALD

_______________________________________________________ ______________ On A ppeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No . 108647

________________________________________________________ _____________ MEMORANDUM OPINION After receiving a notice of appeal in this probate proceeding, we stayed further proceedings in the trial court while the parties briefed whether we had jurisdiction to consider Johnsye McDonald’s appeal from an order allowing
Jo hnsye to participate in the case as a creditor of the estate , but not as a person interested in the welfare of Chad Eric McDonald’s child . We conclude the order does not deny th at the appellant, Johnsye McDonald, has standing to participate in the trial court as a person int erested in Chad’s estate , as the order e xpressly allows Johnsye the right to participate as a creditor in the proceedings before the court.2 Thus, the order s at issue do not conclude a discrete phase of litigation regarding the estate and are not subject to interlocutory review on appeal

. W e dismiss the appeal for lack of jurisdiction. Chad Eric McDonald died from injuries received in an industrial accident. In applications for letters of administration and to determine heirship, Kaylen Brooke Rankin alleged that she is Chad’s wife and the mother of his child. Kaylen subsequently gave birth to another child , who may also be shown in further proceedings to be a beneficiary of Chad’s estate

. Kaylen also filed an application for a determination that she and Chad had an informal marriage.
In a c ompeting application for independent administration and an application

to determin e heirship , Johnsye allege d that Chad was never married

. Johnsy e also alleged that he is interest ed in the estate because he was given possession of Chad’s minor child by court order and because he paid Chad’s funeral bills. Over Kaylen ’s objection, Johnsye applied to be the temporary administrat or of Chad’s

estate

. Johnsye demanded a jury trial. T he County Judge transferred the case to the County Court at Law, and Kaylen filed a motion challeng ing Johnsye’ s standing to participate in the probate court proceedings

. Kaylen also filed a motion to deposit funds into the registry of the court , in which the trial court was asked to use funds3 Kaylen deposited into the court’s registry to reimburs e Johnsye for the expenses he advanced for Chad’s funeral. After finding that Johnsye had standing a s a creditor of the estate to participate in the probate proceedings , the trial court signe d an order denying Kay len’s motion to dismiss ; but , in the same order , the trial court granted Kaylen’s claim that Johnsye lacked standing to proceed as a person interested in the welfare of Chad’s minor child

. Su b sequently, t he trial court stayed all further discovery and ordered the county clerk to deposit the funds tendered by Kaylen into an account for Johnsye’s use and benefit. In an order signed on October 9, 2013, the
trial court struck Johnsye’s jury demand. Johnsye filed a notice of appeal

. The general test for appealing probate orders states that if an express statute declares the phase of the probate proceedings at issue to be final and appealable , the statute controls

. Crowson v. Wakeham , 897 S.W.2d 779, 783 (Tex. 1995).

“ 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

. We

are to avoid constructions that defeat bona fide attempts to appeal. See i d. Kaylen contends that Johnsye’s appeal is premature because the trial court has not yet entered a judgment declaring heirship. See Tex. Prob. Code Ann. §4 55(a) (West 2003). Johnsye argues that the trial court’s various orders finally dispos ed of his claimed interest in Chad’s estate. See Tex. Prob. Code Ann. § 3(r) (West Supp. 2013). An order sustaining a challenge to an applicant’s interest in an estate may be appealed because it disposes of the merits of the issue of interest. Womble v. Atkins , 331 S.W.2d 294, 298 (Tex. 1960) (“ A judgment of no interest

. . . is in no sense interlocutory. ”). “ To avoid ambiguity, if the motion to dismiss is granted, the order should reflect that the claim is dismissed. ” In the Estate of Chapman , 315 S.W.3d 162, 164 (Tex. App.

— Beaumont 2010, no pet.). In this case, the trial court’s order does not dismiss Johnsye’s claim ; rather, it allows him to participate as a creditor in the probate proceedings involving Chad’s estate. The trial court’s orders with respect to whether Johnsye has a right to participate as a party interested in the estate of Chad’s child are not final, as the trial court could change its mind regarding its ruling on tha t matter prior to the trial. For instance, t he trial court neither struck McDonald’s pleadings nor dismissed his application to determine heirship or his application to administ er Chad’s estate. Because those claims are still before the trial court, the or der s dispos ing of Johnsye’s claims remain interlocutory. See Crowson , 897 S.W.2d at
783 ; Chapman , 315 S.W.3d at 165

.5 Because the trial court’s orders have not disposed of all issues, and no statute declares the phase of the probate proceedings at issue t o be final and appealable, we conclude that the orders Johnsye seeks to appeal are interlocutory. We hold that we do not have jurisdiction of Johnsye’s appeal. We withdraw our order of October 23, 2013, and we dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.

________________________________ HOLLIS HORTON Justice
Opinion Delivered November 27, 2013 Before McKeithen, C.J., Kreger and Horton, JJ.