Opinion
No. 04-16-00249-CV
06-07-2016
IN THE ESTATE OF RAMIRO AGUILAR, JR., DECEASED
From the Probate Court No 2, Bexar County, Texas
Trial Court No. 2012-PC-2800
Honorable Tom Rickhoff, Judge Presiding
ORDER
Anthony C. Aguilar and Michael A. Aguilar seek to appeal the probate court's January 27, 2016 Order Approving Final Account. The record has been filed and Appellee, the independent executor of the Estate of Alvilda Mae Aguilar, filed a motion to dismiss the appeal for lack of jurisdiction on the ground that the trial court's January 27, 2016 order is not appealable.
"To determine whether a probate order is final and appealable, we consider whether the order adjudicates a substantial right and whether it disposes of all issues in the particular phase of the proceeding." In re Estate of Scott, 364 S.W.3d 926, 927 (Tex. App.—Dallas 2012, no pet.). "An order that merely sets the stage for the resolution of proceedings is interlocutory and not appealable." Id. When an order approving an account for final settlement of an estate specifies additional actions that must be taken before the estate may be closed, the order is only "an intermediate step towards the closing of the estate" and is not a final and appealable order. Id.; see Bozeman v. Kornblit, 232 S.W.3d 261 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
The probate court's January 27, 2016 order reflects that additional actions are required before the estate can be closed, including paying additional debts and expenses and distributing the remaining property to the beneficiaries. Cf. Estate of Scott, 346 S.W.3d at 927. In addition, the order requires the independent executor to file a petition for discharge and to close the estate when the remaining expenses have been paid and the property has been distributed. Cf. id.
On May 27, 2016, we ordered Appellants to respond to the motion to dismiss and show why this court has jurisdiction over the appeal. Appellants filed a timely response. However, the response did not address the argument made in the motion to dismiss or argue that Estate of Scott and Bozeman v. Kornblit do not apply. Nor did Appellants attempt to show that there has been a final resolution of the probate case since the record was filed in this court.
We conclude the trial court's January 27, 2016 order is not final and this court lacks appellate jurisdiction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
The Aguilars requested in the alternative that we construe their notice of appeal as a petition for a writ of mandamus. See CMH Homes v. Perez, 340 S.W.3d 444, 454 (Tex. 2011); In re J.P.L., 359 S.W.3d 695, 703 (Tex. App.—San Antonio 2011, pet. denied). Appellants' request is granted.
We order Appellants to file in this cause by July 7, 2016 a petition for a writ of mandamus that complies with rule 52.3 of the Texas Rule of Appellate Procedure. If Appellants timely comply with this order, we will direct the clerk of this court to identify this cause as a mandamus proceeding. If Appellants fail to comply with this order, this proceeding will be dismissed for want of jurisdiction.
Because a clerk's record has been filed, Appellants need not file the appendix required by Rule 52.3(k). --------
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 7th day of June, 2016.
/s/_________
Keith E. Hottle
Clerk of Court