Opinion issued August 22, 2013.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00731-CV

———————————

IN RE ESTATE OF DICK C. CALKINS, Deceased

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Case No. 275,123

and

————————————

NO. 01-11-00732-CV

———————————

CAROLYN JAMES, Appellant

V.

RICHARD STEPHEN CALKINS, Appellee
2

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Case Nos. 275,123-401

and

————————————

NO. 01-11-00733-CV

———————————

IN RE GUARDIANSHIP OF MARY OLIVE CALKINS

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Case No. 378,993

and

————————————

NO. 01-11-00734-CV

———————————

CAROLYN JAMES, Appellant

V.

RICHARD STEPHEN CALKINS, Appellee

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Case Nos. 378,993-401
3

MEMORANDUM OPINION

Carolyn James applied for a permanent guardianship of her mother’s person 

and estate. Richard Calkins, who is Carolyn’s brother, moved to dismiss the 

proceeding on the ground that Carolyn failed to comply with the jurisdictional 

provisions of the Probate Code requiring that a guardianship application include a 

physician’s report and be served on the proposed ward by a sheriff or constable. 

The trial court denied Richard’s motion to dismiss, but determined that it lacked

jurisdiction over the mother’s person and estate for the ten-month period after the 

filing of Carolyn’s original guardianship application and consequently declared 

void certain orders issued during that period. Carolyn appealed. Concluding that 

Carolyn’s attempted appeal is from an interlocutory order, we dismiss for lack of 

jurisdiction.

Background

In March 2008, Carolyn applied to become the permanent guardian over the 

person and estate of her mother, alleging that her mother was incapacitated by 

Alzheimer’s disease. Richard, who is Carolyn’s brother and also the proposed 

ward’s son, moved to dismiss the guardianship proceeding. He challenged the 

probate court’s jurisdiction primarily because Carolyn served the guardianship 

application using a private process server. Relying on the Probate Code provision 

prescribing specific service requirements in guardianship proceedings, Richard 
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argued that citation had to be served by a “sheriff or other officer” in order to 

confer the probate court with jurisdiction over the proposed ward’s person and 

estate. See TEX. PROB. CODE ANN. § 633(c) (West Supp. 2012); see also Whatley v. 

Walker, 302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) 

(observing that compliance with section 633’s service requirement is 

jurisdictional). Carolyn served an amended guardianship application in January 

2009 using a Harris County Constable. 

After considering the motion to dismiss, Carolyn’s response, and the 

argument of counsel, the probate court determined that it acquired jurisdiction of 

the mother’s person and estate upon service of Carolyn’s amended guardianship 

application in January 2009. Accordingly, the trial court denied Richard’s motion 

to dismiss but declared void all but a few orders issued before January 2009, 

including its prior order appointing a temporary guardian of the proposed ward’s 

person and estate. The trial court’s order reads in pertinent part:

IT IS HEREBY ORDERED that [Richard’s] Motion to Dismiss for 

Lack of Jurisdiction is hereby DENIED, however the Court finds that 

jurisdiction over the person and estate of [the proposed ward] was not 

acquired by the Probate Court until January 27, 2009. The Court finds 

that all previous Orders entered prior to January 27, 2009, except the 

Order appointing Ad Litem pursuant to Tex. Probate Code 646 and 

the Order appointing Court Investigator pursuant to Tex. Prob. Code 

648, are hereby VOID.
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In four separate but related appeals, Carolyn complains of that part of the 

dismissal order declaring void the orders entered before January 2009.

1 In 

compliance with rule 42.3 of the Rules of Appellate Procedure governing 

dismissals in civil cases, this Court issued an order notifying Carolyn of the 

possible dismissal of her appeals on the ground that the order is a non-appealable 

interlocutory order. See TEX. R. APP. P. 42.3. Carolyn responded. Having now had 

the opportunity to review the record in light of Carolyn’s response, we determine 

that Carolyn’s appeals should be dismissed as appeals from a non-appealable 

interlocutory order.

Jurisdiction

As a general rule, parties may appeal only from a final judgment. De Ayala 

v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann v. Har-Con Corp., 

39 S.W.3d 191, 195 (Tex. 2001)). Probate proceedings are an exception to the rule 

that there may be but one final judgment in a case; in probate proceedings, 

“‘multiple judgments final for purposes of appeal can be rendered on certain 

discrete issues.’” Id. (quoting Lehmann, 39 S.W.3d at 192). This exception is 

 1 Even though the trial court issued its order under a single probate court cause

number―cause number 378,993―Carolyn appealed the order under three 

additional probate cause numbers―cause numbers 378,993-401; 275,123; and 

275,123-401. These cause numbers generally relate to the administration of a trust 

in Carolyn and Richard’s deceased father’s name and claims appurtenant to the 

guardianship and trust actions. Because we hold that the order appealed from is a 

non-appealable interlocutory order, we dismiss all four appeals without 

considering whether Carolyn may appeal the order under the three additional 

causes. 
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justified by the recognized “need to review ‘controlling, intermediate decisions 

before an error can harm later phases of the proceeding.’” Id. (quoting Logan v. 

McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied). Not every 

interlocutory order in a probate proceeding is appealable, however. Id. 

To determine the finality of a probate order for purposes of appeal, we apply 

this test from Crowson v. Wakeham: 

If there is an express statute . . . 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. 

897 S.W.2d 779, 783 (Tex. 1995); Ajudani v. Walker, 232 S.W.3d 219, 223 (Tex. 

App.—Houston [1st Dist.] 2007, no pet.) (observing that probate court order is 

“functional equivalent of a judgment when it finally disposes of a particular issue 

between parties”). Whenever it is proper, parties should “seek severance orders to 

eliminate ambiguities about whether [an] order was intended to be final and 

appealable.” De Ayala, 193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 783).

In De Ayala v. Mackie, the Texas Supreme Court dismissed an appeal from a 

trial court’s denial of a plea to the jurisdiction and refusal to remove an executor in 

an ancillary probate proceeding. 193 S.W.3d at 577−80. The Court reasoned that 

“an order denying a motion to dismiss an entire proceeding for want of subject 

matter jurisdiction is more like a prelude than a finale”; rather than achieve finality 
7

by ending a phase of the proceedings, such an order “sets the stage for resolution 

of all proceedings” and is therefore interlocutory. Id. at 578−79; see also Fischer v. 

Williams, 331 S.W.2d 210, 214 (Tex. 1960) (“Since the order overruling 

respondents’ motion to dismiss [in a probate proceeding] failed to finally dispose 

of the controverted issue [of whether the will contestants had shown an interest in 

the case], it, therefore, amounts to no more than an interlocutory order, 

inconclusive in its nature, made in the progress of the trial, and, therefore, not 

appealable.”); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex. App.—Fort 

Worth 2004, no pet.) (court of appeals lacked jurisdiction to review probate court’s 

denial of plea to jurisdiction filed by non-governmental entity); In re O’Bryant, 

No. 04-04-00359-CV, 2004 WL 2616323, at *1 (Tex. App.—San Antonio Aug. 

11, 2004, no pet.) (mem. op.) (dismissing interlocutory appeal of order denying 

jurisdictional plea in probate case for want of jurisdiction).

Under the reasoning of Crowson and De Ayala, the trial court’s denial of

Richard’s motion to dismiss the entire guardianship proceeding is a 

non-appealable, interlocutory ruling. The order has not been severed from the 

guardianship proceeding, and Carolyn has not cited, nor can we find, a statute 

expressly authorizing her appeal. Section 4A―the general statute authorizing 

appeals from probate orders―and section 605―the specific statute authorizing 

appeals in guardianship proceedings―both require a “final” order as a prerequisite 
8

to appeal. TEX. PROB. CODE ANN. § 4A(c) (West Supp. 2012) (“A final order 

issued by a probate court is appealable to the court of appeals.”); Id. § 605 (West 

Supp. 2012) (providing same in section titled “General Probate Court Jurisdiction 

in Guardianship Proceedings; Appeals”). Even though the order includes the 

probate court’s declaration of the date on which it acquired jurisdiction, the 

markers of finality are absent here because the order does not dispose of all parties 

or issues in any particular phase of the guardianship proceeding. That is, the order 

does not resolve the issue of the proposed ward’s capacity, dispose of a discrete 

phase of the guardianship proceeding, appoint a guardian, or state that no guardian 

will be appointed; instead, the probate court’s refusal to dismiss the guardianship 

proceeding sets the stage for later rulings on these issues. 

Carolyn argues that the order is appealable nonetheless because it “purported 

to dispose of Carolyn[]’s claims [asserted in a related case] against the temporary 

guardian who was appointed” in a voided order. Contrary to Carolyn’s assertions, 

however, the probate court’s order on Richard’s motion to dismiss does not state 

any disposition of her claims against the temporary guardian. Carolyn has not 

cited, nor have we found, any authority establishing that the trial court’s ruling on 

Richard’s motion to dismiss bars her claims against the temporary guardian arising 

from alleged acts and omissions during the period of the guardianship. And 

Carolyn’s citation to Whatley v. Walker, 302 S.W.3d at 314, does not support her 
9

argument regarding this Court’s appellate jurisdiction. In Whatley, a case involving 

an appeal from a final order appointing a permanent guardian of a person and 

estate, our sister court of appeals determined the trial court’s jurisdiction in a 

guardianship proceeding. Id. at 320−21 (holding that trial court acquired 

jurisdiction in guardianship proceeding through proper service on proposed ward 

and certain other persons). Whatley does not address the issue of appellate 

jurisdiction over orders, like the one here, denying a motion to dismiss a 

guardianship proceeding.

We hold that the probate court’s order denying Richard’s motion to dismiss 

but declaring void certain orders entered before January 2009 is an interlocutory 

order that is not appealable. We therefore lack jurisdiction, and we dismiss these

appeals. All outstanding motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.