In Re the Guardianship of Miller

299 S.W.3d 179, 2009 Tex. App. LEXIS 7797, 2009 WL 3194443

• Court: Court of Appeals of Texas
• Decided: October 7, 2009
• Docket: 05-08-00627-CV
• Status: Published

Opinions

OPINION

Opinion By

Justice WRIGHT.

Shelly Miller Goolsby and James Stephen Miller III appeal the probate judge’s order finding Goolsby lacks standing in this guardianship proceeding. In three issues, Goolsby and Miller contend the probate judge erred by determining Goolsby lacked standing to participate in the guardianship proceeding. We agree with Goolsby that the probate judge erred by determining she lacked standing, render judgment denying the motion in limine with respect to Goolsby, and strike that portion of the probate judge’s order precluding Goolsby from participating in this guardianship proceeding as described in parts (1), (2), (3), and (4) of section 642(b) of the Texas Probate Code.¹

Procedural Background

In 2007, Miller filed a petition for divorce against his wife Carol Browning Duffey-Miller (Duffey). She responded by filing an answer and various motions regarding Miller’s mental capacity. The family court appointed John Norris as ami-cus attorney regarding the issue of Miller’s mental capacity. Thereafter, Norris filed an application in the probate court seeking the appointment of a permanent guardian of the person and estate of Miller. Norris asserted Miller was partially incapacitated due to dementia caused by Alzheimer’s disease and was unable to care for himself or manage his financial affairs. Norris did not seek appointment of a particular guardian in his application, but attached a “Declaration of Guardian in the Event of Later Incompetence or Need of Guardian” submitted by Miller. In that document, Miller designated Goolsby, his daughter, to serve as guardian of his person and estate; his son, John Barton Miller (Bart Miller), as first alternate guardian; and his son-in-law, Chris Goolsby, as second alternate guardian.

Miller, Goolsby, and Duffey filed answers to Norris’s application. Both Miller and Goolsby asserted Miller was competent and did not need a guardian, but if the probate judge determined he was incapacitated and a guardian was necessary, Gools-by should be appointed. Miller further sought to have Duffey disqualified from serving as his guardian. Goolsby also requested that, in the event the probate judge determined Miller was “partially incapacitated,” the probate judge should consider appointing an “attorney ad litem in this matter.” Contrary to these assertions, Duffey claimed Miller was incompetent and his declaration was invalid, and sought appointment as Miller’s permanent guardian. On December 26, 2007, Miller filed a motion in limine challenging Duf-fey’s standing to commence or contest the proceeding. Thereafter, on January 4, 2008, Goolsby likewise filed a motion in limine, challenging both Duffey’s standing to commence or contest the guardianship proceeding and Duffey’s qualifications to be appointed guardian. Finally, on January 11, 2008, Duffey filed a motion in limine challenging Goolsby’s, Bart Miller’s, and Chris Goolsby’s standing and qualifications.

The probate judge conducted a hearing on the motions in limine. During the hearing, the probate judge stated that the parties were “characterizing this pleading as a motion in limine when it’s really a motion to decide the facts of the ease,” and “I’m probably going to be dealing with the big picture.” As a result, the probate judge had Miller brought to the courtroom so that the probate judge could personally question Miller. After doing so, the probate judge stated, “I don’t think that we’re eventually going to be appointing a guardian for Mr. Miller. I haven’t seen a strong need for a guardian.” Instead, the probate judge appointed an attorney ad litem and determined the probate judge would go forward with the application for guardianship if the attorney ad litem advanced the issue and suggested a guardian. Thereafter, the probate judge told the parties, “At the most, I am going to appoint a guardian for the very limited purpose of making the decisions which Mr. Miller has to make in the divorce.”

Following the hearing, the probate judge signed his January 22, 2008 order granting the motions in limine regarding Duffey and Goolsby and stating they could not: (1) file an application to create a guardianship for Miller, (2) contest the creation of a guardianship for Miller, (3) contest the appointment of a person as a guardian of the person or estate, or both, of Miller, or (4) contest the application for complete restoration of Miller’s capacity or modification of his guardianship. In its order, the probate judge also appointed Norris as Miller’s attorney ad litem. Norris accepted his appointment as attorney ad litem on February 4, 2008.

Eleven days later, on February 15, 2008, the probate judge signed the following order:

This matter having come before the court, and the court having heard evidence and argument:

It is the finding of the court that JAMES STEPHEN MILLER III has sufficient mental capacity to formulate a rational desire to obtain a divorce, and to make decisions relating to a divorce action, and that it is neither necessary nor appropriate to appoint a guardian in this cause;

It is Ordered that this Cause is ABATED, and this Cause is hereby reassigned to the Inactive Docket of the Court.

This appeal followed.²

Jurisdiction

We begin with a determination regarding whether we have jurisdiction over this appeal. Generally, a party may only appeal from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Similarly, except when “specifically provided by law,” there may be but “one final judgment” rendered in any cause. Tex.R. Civ. P. 301. Consistent with these principles, the Texas Probate Code provides that “[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.” Tex. Prob.Code Ann. § 5(g) (Vernon Supp. 2008). The probate code specifies that some orders are final and appealable, for example, a judgment that determines heirship. See Tex. Prob.Code Ann. § 55(a) (Vernon 2003). But, this section of the probate code does not otherwise make any distinction between a final, ap-pealable order under the probate code and any other judgment that is final for purposes of appeal.

There are, however, some unique rules regarding judgment finality that may apply to matters governed by the probate code. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006). These exceptions to the one-judgment rule are necessary because of the need to “review controlling, intermediate decisions before an error can harm later phases of the proceeding.” Id. In such cases, “multiple judgments final for purposes of appeal can be rendered on certain discrete issues.” Id. Both the substantial right test and the requirement outlined in Crowson v. Wakeham, 897 S.W.2d 779 (Tex.1995), that the order dispose of all issues in the “phase of the proceeding” for which it was brought, may be used to determine whether an “ostensibly interlocutory probate order has sufficient attributes of finality” to confer appellate jurisdiction. See De Ayala, 193 S.W.3d at 578. However, there is no need to resort to the unique probate rules used to determine whether a seemingly interlocutory order is appealable if the order is otherwise final. Cf. In re Guardianship of Moon, 216 S.W.3d 506, 509 (Tex.App.-Texarkana 2007, no pet.) (declining to discuss unique probate rules where guardianship matter became final after guardianship had been closed). Such an order is expressly appealable under section 5(g) of the probate code. Tex. Prob.Code Ann. § 5(g). That is the situation presented in this case.

A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Lehmann, 39 S.W.3d at 195. A final judgment need not be in any particular form; finality is determined from its language and the record in the case. Id. A judgment that finally disposes of all parties and claims is final, regardless of its language. Id. .And, the language of an order can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. If final disposition of the case is unequivocally expressed in the words of the order itself, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. at 200. Once the trial court disposes of all parties and claims, the trial court’s preceding interlocutory judgments and orders are merged into the final judgment whether or not the interlocutory judgments or orders are specifically named within the final judgment. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972); Campbell v. Kosarek, 44 S.W.3d 647, 650 (Tex.App.-Dallas 2001, pet. denied); Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 391 (Tex.App.-Corpus Christi 2000, no pet.). When determining whether an order is final, we consider the entire record in the case. See Lehmann, 39 S.W.3d at 195. We conduct a de novo review to determine finality because jurisdiction is a legal question. IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex.App.-Dallas 2005, no pet.).

In this case, the probate judge’s order on the motion in limine left a single issue to be determined: whether a guardianship should be instituted, and if so, who should be appointed as guardian. The probate judge’s February 15th order determining “it is neither necessary nor appropriate to appoint a guardian in this cause” fully resolved that issue.

The only purpose of a guardianship proceeding is to appoint a guardian with either full or limited authority over an incapacitated person. See Tex. Prob.Code Ann. § 602 (Vernon 2003). A guardianship is neither necessary nor appropriate when a person is found to be competent. If the probate judge had found Miller to be incapacitated, the appropriate course of action would have been to appoint a guardian with full or limited authority over him. See id The probate judge did not. A conclusion that no guardian is needed is a determination that the proposed ward has sufficient capacity to care for himself. Such a conclusion is, in effect, a finding that the person is competent, and it is an express denial of a request to form a guardianship.

Although there is no order in the record using the express language “the application is denied” and there were apparently no further hearings or proceedings on the application, the February 15th order is final. There is no magic language required to render a judgment final. See Lehmann, 39 S.W.3d at 195. Further, whether the probate judge (1) held additional hearings; (2) relied on evidence adduced at the motion in limine hearing; (3) relied on evidence that was later introduced but not recorded; (4) participated in ex parte conversations with the attorney ad litem and accepted his recommendation; or (5) heard no further evidence at all is not controlling on the question of finality. The probate judge’s order states that after considering evidence, “it was neither necessary nor appropriate to appoint a guardian in this cause.” Thus, the order expressly disposes of the entire case. The language of the order does not, in any way, reserve the issue of guardianship for later determination. The language of an order can make it final, even though it should have been interlocutory, when, as here, the language expressly disposes of all claims and all parties. Even though it may have been error for the probate judge to make his determination regarding the need for a guardian in this case without further proceedings (an issue not raised on appeal), the order is not interlocutory merely because the record fails to show an adequate legal basis for the disposition. See id at 205-06.

In reaching this conclusion, we are mindful that the probate judge failed to rule on Duffey’s motion in limine directed at Bart Miller and Chris Goolsby. However, the probate judge was not required to rule on Duffey’s challenge to Bart Miller’s and Chris Goolsby’s standing to make the order final and appealable. The record in this case shows only Goolsby, Miller, and Duffey appeared and contested the guardianship proceeding. Although Bart Miller and Chris Goolsby were named as alternate guardians in Miller’s declaration, neither Bart Miller nor Chris Goolsby appeared before the court. Neither of them sought nor contested, in any way, the need for or appointment of a guardian. Thus, a determination of their standing to do so was not before the court. Consequently, it was not necessary for the probate judge to rule on that portion of Duffey’s motion in limine to render the February 15th order final.

Likewise, the probate judge’s failure to discharge the attorney ad litem or address his compensation does not prevent the case from being final. The probate code allows for two different types of “ad li-teras” to be appointed, a guardian ad litem or an attorney ad litem. A “guardian ad litem” represents the best interests of an incapacitated person in a guardianship proceeding. Tex. Prob.Code Ann. § 601(12) (Vernon Supp. 2008). An “attorney ad litem” is “an attorney who is appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding.” Tex. Prob. Code Ann. § 601(1) (Vernon Supp. 2008) (emphasis added). An attorney ad litem is to represent a proposed ward and discuss with the proposed ward the law and facts of the case, the proposed ward’s legal options and the grounds on which the guardianship is sought, as well as review the application for guardianship and medical and psychological records. Tex. Prob.Code Ann. § 647 (Vernon 2003). The term of appointment of an attorney ad litem “expires, ivithout couH order, on the date the court either appoints a guardian or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the attorney ad litem is in the ward’s best interest.” Tex. Prob.Code Ann. § 646(e) (Vernon Supp. 2008) (emphasis added).

The probate judge in this case appointed Norris as attorney ad litem. The probate judge did not make Miller a ward, nor did his order continue Norris’s appointment. Thus, Norris’s appointment expired when the probate judge denied the application for guardianship, and the lack of an order expressly discharging Norris as the attorney ad litem does not somehow render an otherwise final order interlocutory. Moreover, Norris has not intervened and the record does not show he has requested the court to set his compensation. Thus, there is no unresolved claim for compensation in this case. Contrary to the dissent’s position, it is not necessary to set an attorney ad litem’s compensation for a judgment to be final. Section 665A of the probate code specifically provides that compensation to an attorney ad litem is to be “taxed as costs in the case.” Tex. Prob.Code Ann. § 665A (Vernon 2003). A trial court is not required to assess costs for its judgment to be final. Thompson v. Beyer, 91 S.W.3d 902, 903 (Tex.App.-Dallas 2002, no pet.).

After denying a request for the creation of a guardianship, the issue of whom to appoint is no longer necessary or appropriate and is not before the court. In our view, the entire guardianship proceeding, not merely a phase of the proceeding, was concluded upon the probate judge’s determination there was no need for a guardian in this case. Thus, there is no need to abandon general rules of jurisdiction in favor of applying the Crowson “phase of the proceeding” exception. It is not necessary to apply an exception used to determine whether an ostensibly interlocutory probate order has sufficient attributes of finality, because the order is not ostensibly interlocutory; it is final. The exceptions to the one-judgment rule are intended to allow for review of controlling, intermediate decisions before an error can harm later phases of the proceeding. The exceptions to the one-judgment rule do not presuppose that a probate proceeding cannot be rendered final in a single proceeding.

Finally, the probate judge’s order is not interlocutory because it does nothing more than abate the case. We should not disregard the probate judge’s determination that it was neither necessary nor appropriate to establish a guardianship over Miller simply because the determination was recital language rather than decretal language. We agree with the dissent that the determination is a recital in the trial court’s judgment. However, because there is no discrepancy between the judgment’s recital and decretal paragraphs, it can be construed in such a way as to give effect to all that is written. Therefore, there is no need to conclude the decretal portion of the judgment controls. Cf. Nelson v. Britt, 241 S.W.3d 672, 676 (Tex.App.-Dallas 2007, no pet.) (where discrepancy appears between judgment’s recital and decretal paragraphs, decretal provisions control).

The probate judge in this case expressly determined no guardianship was needed and then abated the case. This is not ambiguous, nor is there a discrepancy about what the probate judge intended to do. The probate code does not allow a probate judge to determine a guardian is not necessary, but hold open the possibility that one might be necessary in the future, and then abate a case until such time as the judge chooses to revisit the issue. Therefore, it is unclear why, after concluding it was unnecessary to appoint either a full or limited guardian, the probate judge chose to indefinitely abate the case rather than dismiss it. See Tex. PROB.Code ÁNN. § 692 (Vernon 2003) (requiring probate court to dismiss application for guardianship if an adult person is found to possess capacity to care for himself and manage his property).

We recognize that Goolsby and Miller do not challenge the propriety of the probate court’s decision to abate the case. They do, however, challenge the portion of the probate judge’s judgment finding Goolsby lacks standing. The abatement order leaves this case in “suspended animation” to be revived only when the reason for the abatement is removed. See Campbell, 44 S.W.3d at 650. To conclude the probate judge’s action in doing so renders an otherwise final order interlocutory would allow the probate judge to make its final judgment immune from our jurisdiction by simply abating it. The policy of the supreme court is to avoid constructions that defeat bona fide attempts to appeal. Crowson, 897 S.W.2d at 783. The probate judge’s order of indefinite abatement is in direct contravention of that policy. Thus, we conclude the probate judge’s decision to abate rather than dismiss the case does not render the judgment interlocutory.

Because the probate judge has expressly determined it is neither necessary nor appropriate to appoint a guardian for Miller, the probate judge has fully resolved the issue of whether a guardianship will be instituted and all pending parties and claims have been disposed of. Once the probate judge disposed of the parties and issues before it, the complained-of order finding Goolsby lacked standing merged into the final order and is appealable. Having determined the order is final and appealable, we now turn to the merits of Goolsby and Miller’s complaints.

Standing

In their third issue, Goolsby and Miller contend the probate judge erred by ruling that Goolsby lacked standing to participate in the guardianship proceedings. After reviewing the record, we agree.

At the hearing on the motions in limine, a single witness, Natalie Ruth Thompson, provided the only evidence relevant to Goolsby’s standing. Thompson testified she was Miller’s bookkeeper and had worked for him for forty years. She denied that any of Miller’s property had been transferred to Goolsby and her husband while the divorce was pending. She explained that a certificate of deposit in the amount of $100,000 in the name of Dallas Lyndhurst II, a business entity belonging, at least in part, to Miller, was cashed and the money loaned to Goolsby Properties. Thompson did not know the percentage of the ownership interest Miller had in Dallas Lyndhurst II, nor was she aware of what ownership interest, if any, Goolsby had in Goolsby Properties. Goolsby Properties used the money to purchase a house where Miller now lives. When the house was purchased, Miller prepaid rent in the amount of $26,000 to Goolsby Properties. Thompson was unaware how much of the loan had been repaid by Goolsby Properties to Dallas Lyndhurst II, but she had not received any payments on the debt.

Following Thompson’s testimony, and without producing further evidence regarding Goolsby’s standing, Duffey ai-gued that the evidence showed Goolsby borrowed $100,000 from Dallas Lyndhurst II and the money had not been repaid. Thus, according to Duffey, Goolsby was disqualified under section 681(7) of the probate code, and, in turn, lacked standing under section 642 of the probate code because she had an interest adverse to Miller. Duffey did not argue any other reason for Goolsby’s lack of standing. At the close of the hearing, the probate judge orally granted the motion in limine against Goolsby without stating the basis for his decision. Thereafter, the probate judge signed his order granting Duffey’s motion in limine against Miller, again without stating the grounds for doing so. None of the parties requested findings of fact and conclusions of law, and the probate judge did not make findings or conclusions.

The issue of whether a party has standing to participate in a guardianship proceeding is a question of law. See Cleaver v. George Staton Co., 908 S.W.2d 468, 472 (Tex.App.-Tyler 1995, writ denied); see also Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 297 (1960) (holding whether or not a person has an interest in an estate is reviewed de novo by the court of appeals). If no findings of fact or conclusions of law are filed or requested, all findings necessary to support the trial court’s judgment are implied. Holt Ather-ton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). When, as in this case, a reporter’s record is filed, the trial court’s implied findings are not conclusive and may be challenged for legal and factual sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). We conduct our review of sufficiency challenges to implied findings under the same standards of review that govern sufficiency challenges to jury findings or a trial court’s findings of fact. See Roberson, 768 S.W.2d at 281. Although we may not review the sufficiency of the evidence to support conclusions of law, we may review the correctness of the conclusions as drawn from the facts. A & W Indus., Inc. v. Day, 977 S.W.2d 738, 741 (Tex.App.-Fort Worth 1998, no pet.).

Because the only evidence and argument presented regarding Goolsby’s standing was that she was indebted to Miller and was therefore disqualified under section 681(7) of the probate code, we presume that was the basis for the probate judge’s conclusion that Goolsby had an interest adverse to Miller and lacked standing under section 642.

Section 681(7) of the probate code provides that a person indebted to the proposed ward cannot be appointed as a guardian unless the person pays the debt before appointment. Tex. Prob.Code Ann. § 681(7) (Vernon 2003). Section 642 of the probate code provides as follows:

(a) Except as provided by Subsection (b) of this section, any person has the right to commence any guardianship proceeding, including a proceeding for complete restoration of a ward’s capacity or modification of a ward’s guardianship, or to appear and contest any guardianship proceeding or the appointment of a particular person as guardian.

(b) A person who has an interest that is adverse to a proposed ward or incapacitated person may not:

(1) file an application to create a guardianship for the proposed ward or incapacitated person;

(2) contest the creation of a guardianship for the proposed ward or incapacitated person;

(3) contest the appointment of a person as a guardian of the person or estate, or both, of the proposed ward or incapacitated person; or

(4) contest an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship.

Tex. Prob.Code Ann. § 642 (Vernon 2003).

The probate code does not define an interest adverse to the interest of a ward or proposed ward under section 642. Nor is there published case law analyzing or defining such an interest. Without attempting to fully define an adverse interest under section 642, we decline to conclude that evidence of a debt alone automatically rises to the level of an adverse interest sufficient to divest a person of standing under section 642. Section 681 itself allows for a person who is indebted to the proposed ward to pay the debt and be appointed as guardian. Tex. Prob.Code Ann. § 681(7). Without evidence of the amount of the debt in relation to the estate of the ward or proposed ward, the ability or inability of the proposed guardian to repay the debt, or some other evidence such as misuse of funds to the detriment of the ward or proposed ward, we cannot conclude evidence of a debt alone automatically creates an interest so adverse to the ward or proposed ward that it would divest a person of standing to file an application to create a guardianship or to contest the creation of a guardianship, the appointment of a person as a guardian, or an application for restoration of a ward’s capacity or modification of a ward’s guardianship. In reaching this conclusion, we are not suggesting that a debt can never rise to the level of an adverse interest under section 642, only that it does not automatically do so.

Further, in this case we need not determine if the $100,000 debt alone is sufficient to preclude standing under section 642 because there is no evidence in the record showing Goolsby was indebted to Miller. To the contrary, the record shows only that Goolsby Properties was indebted to Dallas Lyndhurst II. There is no evidence regarding the ownership or control of Goolsby Properties, and no evidence that Goolsby owned any interest in Goolsby Properties. Because there is no evidence to support the implied finding that Goolsby was indebted to Miller, the probate judge erred by concluding the debt created an interest adverse to Miller that would preclude Goolsby’s standing to participate in this guardianship proceeding. We sustain Miller and Goolsby’s third issue. Having done so, we need not address their remaining issues. See Tex.R.App. P. 47.1.

We render judgment denying Duffe/s motion in limine with respect to Goolsby, and strike that portion of the probate judge’s order precluding Goolsby from participating in this guardianship proceeding as described in parts (1), (2), (3), and (4) of section 642(b) of the Texas Probate Code.

LANG, J. dissenting, joined by JJ. O’NEILL, RICHTER, LANG-MIERS, MURPHY, and FILLMORE.

1 . Section 642 of the probate code provides that absent an adverse interest to the proposed ward or incapacitated person, any person has standing to commence any guardianship proceeding, including restoration of a ward’s capacity or modification of a ward’s guardianship, or to appear and contest any guardianship proceeding or the appointment of a particular person as guardian. Tex. Prob. Code Ann. § 642 (Vernon 2003). A motion in limine is used to challenge a person's standing to commence or contest a guardianship proceeding. Id.

2 . Duffey also appealed. That appeal was dismissed pursuant to a settlement agreement. See In re Guardianship of Miller, No. 05-08-00448-CV, 2008 WL 3824000, at *1 (Tex.App.-Dallas Aug. 18, 2008, no pet.) (mem. op.).