Hernandez v. Borjas

734 S.W.2d 776, 1987 Tex. App. LEXIS 8274
CourtCourt of Appeals of Texas
DecidedAugust 19, 1987
DocketNo. 2-86-178-CV
StatusPublished
Cited by2 cases

This text of 734 S.W.2d 776 (Hernandez v. Borjas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. Borjas, 734 S.W.2d 776, 1987 Tex. App. LEXIS 8274 (Tex. Ct. App. 1987).

Opinion

OPINION

KELTNER, Justice.

This is an appeal from an order denying an application for removal of a court appointed guardian for the Loredo minors.

We affirm.

The four Loredo minors were orphaned with the death of their last surviving parent and mother, Francisca Loredo. In her will, the mother provided that her brother, Jenaro Boq'as, would serve as guardian of the estates of the children, and her brother’s wife, Berlinda Borjas, would serve as guardian of the persons of the children. However, Berlinda declined to serve and Jenaro filed an application for guardianship. He was appointed as the guardian of the persons and estates of the four Loredo children.

Additionally, the court appointed Jenaro as independent executor of the estate of Francisca Loredo. The will directed the executor to divide the proceeds from the estate among the four children when they reached their majority. By the time of the facts giving rise to this action, two children had reached majority and were given between $6,000 and $7,000 each from the estate.

Approximately six years after the appointment of Jenaro as guardian, the two Loredo children who had not reached majority, Frank and Teresa, took residence with Manual Ventura Hernandez, who is the appellant in this action. Shortly after taking residence with Hernandez, they filed a “Selection of Guardian” requesting that Hernandez be appointed as their guardian. This document was filed pursuant to TEX. PROB.CODE ANN. sec. 118(b) (Vernon 1980). Section 118(b) provides that upon obtaining the age of fourteen years, a minor may select another guardian of his person or estate if the court finds that the minor’s selected guardian is suitable and competent. At the time of making the selection, Frank was seventeen and Teresa was fifteen.

At the same time, Hernandez filed an application for removal of Jenaro as guardian of Frank and Teresa on the grounds that Jenaro had misapplied the minors’ property. Specifically, Hernandez alleged that Jenaro had forced the minors from his home and had not paid them or Hernandez any income from the estate during that absence.

[778]*778The court conducted a hearing on the application for removal and entered temporary orders, suspending Jenaro’s letters of guardianship and appointing Hernandez as temporary guardian. Approximately three weeks later, the court heard the application for removal and found that no cause existed for Jenaro’s removal as guardian. As a result, the court ordered that Jenaro resume his duties as guardian of the minors.

Hernandez appeals the court’s order and brings two points of error. In his first point of error, Hernandez contends that the court erred in failing to appoint him guardian pursuant to the “Selection of Guardian” made pursuant to section 118(b).

Unfortunately, this contention is not properly before us on appeal. As we previously noted, the application for removal was the only matter heard before the court. It was filed in a separate document as was the “Selection of Guardian.” A hearing was only requested on the application for removal. In fact, the trial court appeared to be concerned about whether both matters were set. At the hearing, the court asked if there were any other matters to be heard and was told by Hernandez that none were scheduled.

An “Application for Removal” and a “Selection of Guardian” under section 118(b) are different actions, although they may result in the same remedy. In an application for removal, the movant must prove that the current guardian has misapplied, embezzled or removed funds or that he is about to do same; or fails to return any account which he is required to do by law; or fails to obey any order of the court; or is guilty of gross misconduct or mismanagement; or is incompetent; or fails to make a final settlement within three years after the grant of his letters; or cruelly treats a ward or fails to maintain a ward as liberally as the condition of the estate permits. TEX.PROB.CODE ANN. sec. 222 (Vemon 1980). On the other hand, the only findings necessary for the court to approve a “Selection of Guardian” of minors over the age of fourteen is a selection made by the ward, the person selected is suitable, and the person selected is competent. TEX.PROB.CODE ANN. sec. 118 (Vernon 1980).

In the instant case, it is obvious from its order and the testimony at the hearing that the trial court only considered the “Application for Removal” and did not consider the “Selection of Guardian” filed by the minors. As a result, that matter is still pending in the trial court and is not appealed to this court.

In his second point of error, Hernandez contends that the trial court erred in failing to grant the “Application for Removal” and revoke the letters of guardianship issued to Jenaro. Specifically, Hernandez contends the evidence presented at the hearing on the “Application for Removal” established that Jenaro misapplied the property of the minors, applied some funds to his own use, allowed assets to be seized by other individuals, and treated the minors cruelly. We must note that the “Application for Removal” simply states that the minors were treated cruelly, ordered to leave the residence, and were not supported after they left. The “Application for Removal” does not contain any allegations regarding Jena-ro’s alleged use of estate funds for his own benefit.

No findings of fact or conclusions of law are included in the record.

In a trial to the court where no findings of fact or conclusions of law are filed or requested, the judgment of the trial court implies all necessary findings of fact in support thereof. In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984) (per curiam); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980) (per curiam). An appellant may challenge these implied findings by raising both legal and factual sufficiency of the evidence points, and where such points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Burnett, 610 S.W.2d at 736.

Hernandez does not indicate whether his second point of error is directed toward the legal sufficiency or factual sufficiency of the evidence. Fortunately, our Supreme [779]*779Court has recently relaxed briefing requirements to these points of error. As a result, the Supreme Court directs us to consider evidence points that are not conventionally labeled, directing that “[w]e look not only at the wording of the points of error, but to the argument under each point to determine as best we can the intent of the party.” Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.1986).

In following the mandate of the Supreme Court, we quote from the appellant’s brief:

POINT OF ERROR NUMBER TWO
THE HONORABLE TRIAL JUDGE ERRED IN FAILING TO REVOKE THE LETTERS OF GUARDIANSHIP OF THE PERSONS AND ESTATES OF FRANK LOREDO, III, AND JUANITA TERESA LOREDO ISSUED TO JENA-RO J. BORJAS....
Sufficient grounds exist to support the belief that the appellee had misapplied part of the property committed to his care.

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Related

Youngs v. Choice
868 S.W.2d 850 (Court of Appeals of Texas, 1993)
In Re Hernandez
131 B.R. 61 (W.D. Texas, 1991)

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734 S.W.2d 776, 1987 Tex. App. LEXIS 8274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-borjas-texapp-1987.