IN THE
TENTH COURT OF APPEALS
No. 10-08-00345-CV
IN RE HAROLD BARTON
Original Proceeding
MEMORANDUM OPINION
Harold Barton filed a petition for writ of mandamus and requested this Court to
order the trial court to enter an order admitting the writing of Peggy Barton, dated
January 19, 2007, to probate as the last will and testament of Peggy Barton.
We note that Harold failed to serve the trial court with the petition. See TEX. R.
APP. P. 9.5, 52.2. However, we suspend the application of these service rules and do not
require proof of service on the trial court so that we may expedite the disposition of this
proceeding. See TEX. R. APP. P. 2.
Upon an application by Harold to probate the writing as the will of Peggy, the
trial court found the writing was not a will. Because the trial court’s ruling disposed of
the controverted issue involved between the parties, we determine that the ruling is a
final appealable order. TEX. PROB. CODE ANN. § 5(g) (Vernon Supp. 2008); Majeski v.
Estate of Majeski, 163 S.W.3d 102, 106 (Tex. App.—Austin 2005, no pet.) (“[W]e must
consider whether the order is part of a proceeding that left unresolved issues or
whether the order "concluded a discrete phase" of the proceedings.”). See Cherry v. Reed,
512 S.W.2d 705, 707 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.) (“The
trial court's summary judgment denying probate of the writing offered by appellants
effectively disposed of the basic controverted issue between the parties.”); see also
Fischer v. Williams, 160 Tex. 342, 347 (Tex. 1960) (“If the motion to dismiss the contest on
the ground that contestants had failed to show an interest in the estate had been
sustained, the order would have finally disposed of the controverted question involved,
and would have been appealable.”)
Accordingly, we deny the petition.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Petition denied
Opinion delivered and filed October 17, 2008
[OT06]
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