Stepan, Craig v. Mark Chamness ( 2003 )

Dismissed and Memorandum Opinion filed July 17, 2003

Dismissed and Memorandum Opinion filed July 17, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00842-CV

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CRAIG STEPAN, Appellant

V.

MARK CHAMNESS, Appellee

On Appeal from the County Court at Law No. 2

Brazoria County, Texas

Trial Court Cause No. 23,205

M E M O R A N D U M   O P I N I O N

Over a year after entering into an agreed final judgment in a will-contest case, appellant Craig Stepan filed a petition in which he (1) sought to set aside the agreed final judgment; (2) sued appellee Mark Chamness on various claims; and (3) sued attorneys Benjamin Best and Joseph Montalbano, who represented Stepan and Chamness, respectively,  in the will contest.  Stepan eventually nonsuited Montalbano.  On July 29, 2002, the probate court denied the petition to set aside the agreed final judgment and dismissed Stepan=s cause of action against Chamness, but denied Best=s motion to dismiss Stepan=s petition against him, thereby allowing Stepan=s claim against Best to proceed in probate court. Stepan now appeals from the July 29, 2002 order.  We conclude this court does not have jurisdiction over the present appeal.

For a judgment to be a final, appealable judgment in a probate proceeding, it is not necessary that the judgment be one that fully and finally disposes of the entire probate proceeding.  Crowson v. Wakeham, 897 S.W.2d 779, 781 (Tex. 1995).  Nevertheless, the judgment Amust be one which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding is brought.@  Id.

In the order signed July 29, 2002, which is the subject of the present appeal, the probate court disposed of Stepan=s petition to set aside the agreed final judgment and Stepan=s causes of action against appellee Chamness.  In the same order, however, the trial court denied Best=s motion to dismiss Stepan=s cause of action against Best, a cause of action which was pleaded in the same petition by which Stepan sought to set aside the agreed final judgment and sued Chamness.  The trial court did not sever the remaining claim against Best from the claims of which it disposed.  Accordingly, the July 29, 2002 order was an interlocutory order, and we lack jurisdiction over the appeal.  See id. at 783; see also Villarreal v. Zukowsky, 54 S.W.3d 926, 929 (Tex. App.CCorpus Christi 2001, no pet.) (in dictum, stating judgment being appealed would be interlocutory under Crowson because pleadings raised issues not disposed of in judgment).

We therefore dismiss the appeal for lack of jurisdiction.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 17, 2003.

Panel consists of Justices Anderson, Frost, and Guzman.