COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-05-460-CV
IN RE GUARDIANSHIP OF THE ESTATE OF KATHRYN H. GIBBS, AN INCAPACITATED PERSON
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FROM THE PROBATE COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
Appellant Kenneth Gibbs, as Independent Executor of the Estate of Bert
H. Gibbs, argues that the Denton County statutory probate court lacked
jurisdiction to make certain orders in the Guardianship of Kathryn H. Gibbs
because the guardianship expired as a matter of law years before the probate
court signed the orders. We agree, and we vacate the orders in question.
1 … See T EX. R. A PP. P. 47.4. Background
Kathryn Gibbs is the mother of Howard Gibbs, Kenneth Gibbs, Candace
Gibbs Walton, and Appellee Kip Gibbs. Bert Gibbs, deceased, was Kathryn’s
husband. Appellee Sandra Gibbs is Kip’s wife.
On May 7, 2001, Kip and Sandra filed in the Denton County Probate
Court an application to be appointed temporary co-guardians of Kathryn’s
estate. On the same day, the trial court granted the application and appointed
them as temporary co-guardians until May 17, 2001.
On May 15, 2001, Kathryn and her court-appointed guardian ad litem
consented to the extension of the order appointing Kip and Sandra as temporary
co-guardians for a period not to extend beyond July 6, 2001, and the probate
court signed a corresponding order on the same day.
On June 29, 2001, Kip and Sandra filed an application to convert the
temporary guardianship into a permanent guardianship. On July 6, 2001, the
probate court signed another order purporting to extend the order appointing
Kip and Sandra as temporary co-guardians until August 3, 2001. On October
5, 2001, after hearing the application to convert the guardianship from
temporary to permanent, the probate court signed an order purporting to extend
the original order appointing Kip and Sandra as temporary co-guardians yet
again— this time “until further order of [the court].” The probate court also
2 ordered another lawsuit—in which Kip, as Kathryn’s next friend, sued his
siblings for restitution and breach of fiduciary duty—transferred and made
ancillary to the guardianship. The final judgment in that case was the subject
of a companion appeal recently resolved by this court. See In re Guardianship
of Gibbs, No. 02-05-00143-CV, 2008 WL 902761 (Tex. App.—Fort Worth Apr.
3, 2008, no pet. h.) (op. on reh’g) (“Gibbs I”). The probate court also ordered
the divorce action pending between Kathryn and Bert in the 362nd District
Court of Denton County transferred to the probate court as a proceeding
ancillary to the guardianship.
The probate court signed an order purporting to convert the temporary
guardianship to a permanent guardianship on April 27, 2004.
Thereafter, the probate court signed the five orders underlying this
appeal, as follows:
(1) The November 28, 2005 order approving the guardianship’s “first annual account” for the period from May 12, 2004, through May 12, 2005;
(2) The November 28, 2005 order authorizing compensation for Kip and Sandra for services rendered as co-guardians from May 12, 2004 until May 12, 2005;
(3) The January 23, 2006 order authorizing Kip and Sandra to employ co-counsel;
(4) The January 23, 2006 order authorizing the payment of attorney’s fees; and
3 (5) The February 6, 2006 order authorizing the expenditure of certain funds.
Procedural History of This Appeal
Before turning to the merits of the case, we must unravel the tangled
procedural history of this appeal and resolve several pending motions.
Bert died on December 31, 2004. On September 26, 2005, Probate
Court No. 2 of Tarrant County admitted Bert’s will to probate and appointed
Howard as independent executor of Bert’s estate. The very next day, for
reasons that do not appear in the record, the Tarrant County probate court
revoked Howard’s letters testamentary but sent notice of the revocation to the
wrong lawyer, and Howard did not learn that the court had revoked his letters
until April 11, 2006. Meanwhile, Howard, acting as independent executor of
Bert’s estate, perfected this appeal on March 20, 2006.
Kip and Sandra filed a motion to dismiss the appeal on June 20, 2006,
arguing that Howard had no authority to prosecute the appeal because the
probate court had revoked his letters testamentary. On July 11, 2006, the
Tarrant County probate court appointed Kenneth as successor executor of
Bert’s estate and retroactively reappointed Howard as executor from September
27, 2005, through July 11, 2006. On August 18, 2006, we granted Howard’s
motion to substitute Kenneth for Howard as appellant.
4 On September 25, 2006—again, for reasons that do not appear of
record—the Tarrant County probate court set aside its July 11, 2006 order in
its entirety. The next day, the probate court sent a letter to the parties stating
that Bert’s will had not been admitted to probate and that no independent
executor had been appointed to act on behalf of the estate.
On September 28, 2006, Howard and Kenneth filed their motion in this
court to substitute themselves, personally, as appellants in place of Kenneth as
the independent executor of Bert’s estate. A week later, Kip and Sandra filed
a second motion to dismiss, arguing that the notice of appeal is void because
no one had authority to file the notice on behalf of Bert’s estate.
Finally, on November 14, 2006, pursuant to a Rule 11 agreement
executed by the parties, the Tarrant County probate court signed an order re-
admitting Bert’s will to probate and re-appointing Kenneth as independent
executor.
Our August 18, 2006 order substituted Kenneth for Howard as appellant
in his capacity as independent executor of Bert’s estate. The Tarrant County
probate court’s November 14, 2006 order re-appointing Kenneth as
independent executor restored Kenneth’s authority to prosecute the appeal. We
therefore deny Kip and Sandra’s first and second motions to dismiss the appeal;
Kip and Sandra’s motion to reconsider our August 18, 2006 order; and Howard
5 and Kenneth’s motion to substitute in as appellants in their personal capacities.
We now turn to the merits of the appeal.
Discussion
In his sole issue, Kenneth argues that the Denton County probate court
lacked jurisdiction to make the five orders at issue because the temporary
guardianship expired by operation of law on July 6, 2001—years before the
court made the orders. We agree.
We addressed the same issue in our opinion in the companion appeal,
Gibbs I. The question in the companion appeal was whether the probate court
lacked subject matter jurisdiction over the restitution and breach of fiduciary
duty suit filed by Kip as Kathryn’s next friend and transferred to the probate
court on October 5, 2001. Gibbs I, 2008 WL 902761, at *2. Howard,
Candace, and Kenneth argued that the trial court lacked jurisdiction over the
claims because the temporary guardianship expired by operation of law on July
6, 2001. Id. The parties raise most of the same arguments in the instant
appeal.
Among other holdings, we held in Gibbs I that the temporary guardianship
expired by operation of law on July 6, 2001:
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-05-460-CV
IN RE GUARDIANSHIP OF THE ESTATE OF KATHRYN H. GIBBS, AN INCAPACITATED PERSON
------------
FROM THE PROBATE COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
Appellant Kenneth Gibbs, as Independent Executor of the Estate of Bert
H. Gibbs, argues that the Denton County statutory probate court lacked
jurisdiction to make certain orders in the Guardianship of Kathryn H. Gibbs
because the guardianship expired as a matter of law years before the probate
court signed the orders. We agree, and we vacate the orders in question.
1 … See T EX. R. A PP. P. 47.4. Background
Kathryn Gibbs is the mother of Howard Gibbs, Kenneth Gibbs, Candace
Gibbs Walton, and Appellee Kip Gibbs. Bert Gibbs, deceased, was Kathryn’s
husband. Appellee Sandra Gibbs is Kip’s wife.
On May 7, 2001, Kip and Sandra filed in the Denton County Probate
Court an application to be appointed temporary co-guardians of Kathryn’s
estate. On the same day, the trial court granted the application and appointed
them as temporary co-guardians until May 17, 2001.
On May 15, 2001, Kathryn and her court-appointed guardian ad litem
consented to the extension of the order appointing Kip and Sandra as temporary
co-guardians for a period not to extend beyond July 6, 2001, and the probate
court signed a corresponding order on the same day.
On June 29, 2001, Kip and Sandra filed an application to convert the
temporary guardianship into a permanent guardianship. On July 6, 2001, the
probate court signed another order purporting to extend the order appointing
Kip and Sandra as temporary co-guardians until August 3, 2001. On October
5, 2001, after hearing the application to convert the guardianship from
temporary to permanent, the probate court signed an order purporting to extend
the original order appointing Kip and Sandra as temporary co-guardians yet
again— this time “until further order of [the court].” The probate court also
2 ordered another lawsuit—in which Kip, as Kathryn’s next friend, sued his
siblings for restitution and breach of fiduciary duty—transferred and made
ancillary to the guardianship. The final judgment in that case was the subject
of a companion appeal recently resolved by this court. See In re Guardianship
of Gibbs, No. 02-05-00143-CV, 2008 WL 902761 (Tex. App.—Fort Worth Apr.
3, 2008, no pet. h.) (op. on reh’g) (“Gibbs I”). The probate court also ordered
the divorce action pending between Kathryn and Bert in the 362nd District
Court of Denton County transferred to the probate court as a proceeding
ancillary to the guardianship.
The probate court signed an order purporting to convert the temporary
guardianship to a permanent guardianship on April 27, 2004.
Thereafter, the probate court signed the five orders underlying this
appeal, as follows:
(1) The November 28, 2005 order approving the guardianship’s “first annual account” for the period from May 12, 2004, through May 12, 2005;
(2) The November 28, 2005 order authorizing compensation for Kip and Sandra for services rendered as co-guardians from May 12, 2004 until May 12, 2005;
(3) The January 23, 2006 order authorizing Kip and Sandra to employ co-counsel;
(4) The January 23, 2006 order authorizing the payment of attorney’s fees; and
3 (5) The February 6, 2006 order authorizing the expenditure of certain funds.
Procedural History of This Appeal
Before turning to the merits of the case, we must unravel the tangled
procedural history of this appeal and resolve several pending motions.
Bert died on December 31, 2004. On September 26, 2005, Probate
Court No. 2 of Tarrant County admitted Bert’s will to probate and appointed
Howard as independent executor of Bert’s estate. The very next day, for
reasons that do not appear in the record, the Tarrant County probate court
revoked Howard’s letters testamentary but sent notice of the revocation to the
wrong lawyer, and Howard did not learn that the court had revoked his letters
until April 11, 2006. Meanwhile, Howard, acting as independent executor of
Bert’s estate, perfected this appeal on March 20, 2006.
Kip and Sandra filed a motion to dismiss the appeal on June 20, 2006,
arguing that Howard had no authority to prosecute the appeal because the
probate court had revoked his letters testamentary. On July 11, 2006, the
Tarrant County probate court appointed Kenneth as successor executor of
Bert’s estate and retroactively reappointed Howard as executor from September
27, 2005, through July 11, 2006. On August 18, 2006, we granted Howard’s
motion to substitute Kenneth for Howard as appellant.
4 On September 25, 2006—again, for reasons that do not appear of
record—the Tarrant County probate court set aside its July 11, 2006 order in
its entirety. The next day, the probate court sent a letter to the parties stating
that Bert’s will had not been admitted to probate and that no independent
executor had been appointed to act on behalf of the estate.
On September 28, 2006, Howard and Kenneth filed their motion in this
court to substitute themselves, personally, as appellants in place of Kenneth as
the independent executor of Bert’s estate. A week later, Kip and Sandra filed
a second motion to dismiss, arguing that the notice of appeal is void because
no one had authority to file the notice on behalf of Bert’s estate.
Finally, on November 14, 2006, pursuant to a Rule 11 agreement
executed by the parties, the Tarrant County probate court signed an order re-
admitting Bert’s will to probate and re-appointing Kenneth as independent
executor.
Our August 18, 2006 order substituted Kenneth for Howard as appellant
in his capacity as independent executor of Bert’s estate. The Tarrant County
probate court’s November 14, 2006 order re-appointing Kenneth as
independent executor restored Kenneth’s authority to prosecute the appeal. We
therefore deny Kip and Sandra’s first and second motions to dismiss the appeal;
Kip and Sandra’s motion to reconsider our August 18, 2006 order; and Howard
5 and Kenneth’s motion to substitute in as appellants in their personal capacities.
We now turn to the merits of the appeal.
Discussion
In his sole issue, Kenneth argues that the Denton County probate court
lacked jurisdiction to make the five orders at issue because the temporary
guardianship expired by operation of law on July 6, 2001—years before the
court made the orders. We agree.
We addressed the same issue in our opinion in the companion appeal,
Gibbs I. The question in the companion appeal was whether the probate court
lacked subject matter jurisdiction over the restitution and breach of fiduciary
duty suit filed by Kip as Kathryn’s next friend and transferred to the probate
court on October 5, 2001. Gibbs I, 2008 WL 902761, at *2. Howard,
Candace, and Kenneth argued that the trial court lacked jurisdiction over the
claims because the temporary guardianship expired by operation of law on July
6, 2001. Id. The parties raise most of the same arguments in the instant
appeal.
Among other holdings, we held in Gibbs I that the temporary guardianship
expired by operation of law on July 6, 2001:
Probate code section 875(h) provides that a temporary guardianship expires by operation of law sixty days after the guardianship is commenced, unless it is contested within the sixty- day period. In this case, the sixtieth day after the trial court issued
6 the May 7, 2001 order approving the temporary guardianship was July 6, 2001. Appellants did not contest the application for temporary guardianship. Therefore, the temporary guardianship expired by operation of law on July 6, 2001.
Id. at *5 (citations omitted). We further held that “[w]hen the temporary
guardianship expired without a contest, the trial court had no authority to
continue the guardianship, or to direct the guardians to further act.” Id. at *6.
Kip and Sandra proffer several reasons why the probate court had
jurisdiction to make the subject orders even after the temporary guardianship
expired. Kip raised almost all of the same arguments in his brief and motion for
rehearing in the companion appeal, and we analyzed and rejected those
arguments. Id. at *5–7.
Kip and Sandra make one additional argument in this appeal that was not
raised and rejected in the companion appeal. They argue that Kenneth
conceded the existence of a temporary guardianship and the trial court’s
jurisdiction by requesting the probate court to transfer an ancillary proceeding
(the divorce suit between Bert and Kathryn) to itself—in essence, that Kenneth
waived the right to contest the probate court’s jurisdiction by requesting the
transfer. But subject-matter jurisdiction cannot be waived and can be raised at
any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d
351, 358 (Tex. 2004). Thus, we reject Kip and Sandra’s argument that
Kenneth waived subject-matter jurisdiction.
7 We adopt the relevant holdings of our opinion in the companion appeal
and for the reasons therein stated hold that the temporary guardianship expired
as a matter of law on July 6, 2001, and that the only actions the trial court
was authorized to take were those necessary to close the temporary
guardianship and discharge the temporary guardians. See Gibbs I, 2008 WL
902761, at *5. Because the five orders in question in this appeal were not
necessary to close the temporary guardianship and discharge the temporary
guardians, we further hold that the probate court lacked jurisdiction to make the
orders. We sustain Kenneth’s sole issue.
Conclusion
Having sustained Kenneth’s sole issue, we vacate the following orders of
the probate court: (1) the November 28, 2005 order approving the
guardianship’s first annual account; (2) the November 28, 2005 order
authorizing compensation for Kip and Sandra for services rendered as co-
guardians; (3) the January 23, 2006 order authorizing Kip and Sandra to
employ co-counsel; (4) the January 23, 2006 order authorizing the payment of
attorney’s fees; and (5) the February 6, 2006 order authorizing the expenditure
of certain funds.
PER CURIAM
PANEL A: GARDNER, J.; CAYCE, C.J.; and WALKER, J.
DELIVERED: April 17, 2008