Guardianship of Leon R. Bernsen Sr., an Incapacitated Person v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 9, 2023
• Docket: 13-21-00293-CV
• Status: Published

Opinion

NUMBER 13-21-00293-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GUARDIANSHIP OF LEON R. BERNSEN SR., AN INCAPACITATED PERSON

On appeal from the County Court at Law No. 5 of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Tijerina, Peña Memorandum Opinion by Justice Tijerina

In this cause, appellant Leon Garrick Bernsen appeals the trial court’s September 13, 2021

fee forfeiture order, arguing that the trial court erred by finding that “Kenneth Krohn is not ordered

to forfeit.” We dismiss the appeal as moot.

I. BACKGROUND

On February 23, 2021, Lynn Bernsen Allison, Lea Bernsen Brown, and Leon Garrick

Bernsen filed a motion for forfeiture of attorneys’ fees in Nueces County. Following a hearing, on

September 10, 2021, the trial court granted the motion and ordered that Ford + Bergner LLP and Don D. Ford III “are disgorged of and immediately forfeit” attorneys’ fees paid by Bernsen Farms,

Ltd (Nueces County forfeiture order). Garrick filed a notice of appeal to this Court on September

13, 2021, arguing that Krohn should have been included in the forfeiture order.

On September 15, 2021, following a hearing, the Harris County Probate Court ordered all

matters related to the Bernsen guardianship be transferred to Harris County.

On October 11, 2021, and on October 21, 2021, in Harris County, Dianna and

Ford + Berger LLP and Don D. Ford III filed motions for new trial of the Nueces County forfeiture

order. On October 11, 2021, Ford + Berger LLP and Don D. Ford III filed the same motion for new

trial in Nueces County even though the guardianship was now in Harris County pursuant to a

transfer order. 1 On October 11, 2021, Krohn filed a motion for new trial of the Nueces County

forfeiture order in Harris County.

On November 14, 2021, the Harris County Probate Court granted all the requested

motions for new trial. In February 2022, the Harris County Probate Court subsequently voided all

Nueces County guardianship orders made following Leon R. Bernsen’s death on March 24, 2020.

Garrick now appeals the Nueces County forfeiture order. Dianna filed a motion to dismiss

the appeal, arguing: (1) this Court lacks jurisdiction because the guardianship was transferred to

Harris County, and Garrick never challenged that transfer; (2) Garrick’s complaints are moot

because the Harris County Probate Court subsequently granted a new trial on the Nueces County

forfeiture order; and (3) the Nueces County forfeiture order is not appealable.

II. MOOTNESS

“Appeals of some interlocutory orders become moot because the orders have been

rendered moot by subsequent orders.” Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex. 2009)

1 This motion for new trial was overruled by operation of law. After reviewing the record, it appears no other action has been taken in Nueces County.

2 (citing Richards v. Mena, 820 S.W.2d 372, 372 (Tex. 1991). “A case becomes moot if, since the

time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if

the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in the

outcome.” Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012).

Assuming without deciding that the forfeiture order was appealable, we conclude that the

appeal of the Nueces County forfeiture order has been rendered moot by the Harris County

probate court’s subsequent granting of a new trial on that very order. By granting the parties’

motions for new trial on the Nueces County forfeiture order, the probate court extinguished

Garrick’s controversy. Thus, the act of the trial court that Garrick complains of on appeal has been

remedied, and we conclude that this appeal is therefore moot. See Hernandez, 289 S.W.3d at

319. Accordingly, we hereby grant Dianna’s motion to dismiss.

III. CONCLUSION

We dismiss this appeal as moot.

JAIME TIJERINA Justice

Delivered and filed on the 9th day of March, 2023.