In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00124-CV __________________
IN THE GUARDIANSHIP OF WILLIAM VERNON McKINZIE __________________________________________________________________
On Appeal from the County Court San Jacinto County, Texas Trial Cause No. G2016-54 __________________________________________________________________
MEMORANDUM OPINION
Appellant Minnie Brown appeals from the trial court’s order appointing
appellee Donna Moore as permanent guardian of the ward, William Vernon
McKinzie. In seven appellate issues, Brown asserts that (1) the trial court lacked
jurisdiction, (2) the ward is mentally competent, and the trial court erred by (3)
admitting testimony from a physician, (4) allowing Moore “to remain in the closed
hearing as she had no application on file[,]” or, alternatively allowing Moore to
amend her pleadings after trial, (5) appointing a permanent guardian because the
least restrictive alternative was already in place, (6) appointing Moore as permanent
1 guardian because she was disqualified due to an alleged interest adverse to the ward,
and (7) failing to disqualify Moore’s counsel. We affirm the trial court’s judgment.
BACKGROUND
The proceeding below began in 2016, when Christopher Andrew Johnson
filed an application for temporary appointment of a guardian of the person “and/or”
estate of William Vernon McKinzie (hereinafter “McKinzie”). Johnson asserted that
he is McKinzie’s “closest non-family, adult friend[.]” In the application, Johnson
alleged that McKinzie was eighty-two years old, had been sued by his son, William
S. McKinzie (hereinafter “Steve”), and was “unable to properly understand the
allegations in the suit, the nature of the papers that were served on him, and the
nature of the litigation process.” According to Johnson, McKinzie lacked the ability
to properly direct the litigation, make decisions regarding his participation in the
litigation, was “confused about the status of his own property,” and had been under
a disability. The record reflects that McKinzie, through his attorney, Kerry Hagan,
asserted a counterclaim in the suit Steve filed against him, alleging that McKinzie’s
signatures on two documents were obtained when McKinzie lacked capacity to
execute the writings. McKinzie’s counterclaims included fraud, duress, and breach
of fiduciary duty, as well as a request for declaratory judgment that the writings at
issue were invalid. The two writings at issue in McKinzie’s counterclaim are both
2 “Gift Deeds” of land: one is a deed from McKinzie to Steve, and the other is a deed
from McKinzie to Moore and McKinzie’s other daughter, Melody Gordon.
Johnson sought appointment of a temporary guardian to assist McKinzie in
the litigation and to assist McKinzie in evaluating past transactions undertaken when
McKinzie allegedly suffered from incapacity. In addition, Johnson requested power
to restrict Steve’s access to McKinzie. Johnson specified that he did not seek to
deprive McKinzie of the right to drive or the right to vote, and he pleaded that one
of McKinzie’s daughters (Melody Gordon) assists McKinzie with daily management
of his financial affairs and requested that McKinzie’s daughter continue to do so
during the temporary guardianship. Hagan filed the petition on behalf of Johnson.
Johnson filed a motion to assign the proceeding to a statutory probate court
judge, and he stated in the motion that the cause would involve a request to “continue
into a permanent guardianship[.]” Upon hearing Johnson’s motion, the San Jacinto
County judge signed an order denying Johnson’ request to transfer the case to a
statutory probate judge. See Tex. Estates Code Ann. § 1022.003(b) (“If a party to a
guardianship proceeding files a motion for the assignment of a statutory probate
court judge to hear a contested matter in the proceeding . . ., the county judge shall
grant the motion for assignment of a statutory probate court judge[.]”).
In the response Johnson filed to McKinzie’s request for disclosure, McKinzie
asserted that “certain documents were obtained as a result of duress and in the
3 immediate wake of the death of [McKinzie’s wife] at a time when [McKinzie] was
unable to properly comprehend the nature of the transaction with his full
faculties[.]”Johnson also filed a counterclaim, alleging, the documents at issue were
invalid because the “signatures on two writings . . . were obtained when [McKinzie]
did not have legal capacity to execute them and therefore were obtained as a result
of fraud, duress[,] and through a breach of fiduciary duty[.]”
Johnson also sued Steve for declaratory judgment. In his declaratory judgment
petition, Johnson alleged that Steve sued McKinzie seeking specific performance
under the terms of a lease, that Steve obtained a ruling in his favor on that case, a
temporary restraining order, even though McKinzie did not receive notice of the
hearing, and that McKinzie lacked counsel at that time. As to that claim, Johnson
also asked the San Jacinto County judge to transfer the case to a statutory probate
court because his application to appoint a temporary guardian was being contested.
Johnson also asked the court to declare two agreements McKinzie signed, allegedly
at Steve’s behest, within days after McKinzie’s wife’s died, are void and
unenforceable given McKinzie’s alleged lack of capacity and because Steve
obtained the documents “as a result of fraud and duress[.]” The San Jacinto County
judge subsequently signed an order granting Johnson’s motion to refer the
proceedings to a statutory probate court. After that, the presiding judge for the
4 statutory probate courts of Texas assigned the case to Judge Kathleen Stone, “a
former Statutory Probate Judge,” to hear “all matters” in the case.
In August 2016, Judge Stone signed an order appointing Johnson as the
temporary guardian of McKinzie’s estate and person. Judge Stone also ordered
McKinzie to submit to a medical examination to determine whether he was disabled.
Judge Stone’s order provides that Dr. Mark Kunik is the physician who would
perform the exam. Johnson also moved to be appointed the permanent guardian of
McKinzie’s person and estate. He alleged that McKinzie is partially incapacitated
due to a cognitive disorder. Johnson’s application also alleges that McKinzie
possessed real property valued in excess of $500,000, but that McKinzie had been
“apparently dispossessed per allegations made in this cause, but which [McKinzie]
continues to claim as his own and for which he seeks return.” In the application,
Johnson pleaded that McKinzie had signed both a statutory durable power of
attorney and a medical power of attorney naming Moore his agent. Johnson also
asked Judge Stone to rule on the application. In February 2017, Judge Stone
appointed an attorney ad litem “to represent . . . McKinzie, the proposed ward.”
The same month, Brown contested Johnson’s application for guardianship,
and filed pleadings alleging that McKinzie “is not incapacitated and is not in need
of a guardian of [his] person or estate.” Brown asked that Judge Stone appoint her,
noting that she is McKinzie’s sister-in-law, and assuming the court ultimately
5 determined McKinzie needed a court-appointed guardian. Brown also alleged that
Johnson, while acting as McKinzie’s temporary guardian, had “delegated his duties[]
without authority of this Court and signed a Medical and Statutory Durable Power
of Attorney on behalf of [McKinzie] to name Donna Moore as his agent.” Moreover,
Brown asserted that “[a]ccording to a Court document filed on September 9, 2016[,]
by [McKinzie]’s attorney, [McKinzie] is known to be completely mentally
competent.”1 Brown contended that McKinzie is not incapacitated. In his responses
to Brown’s requests for disclosure, Johnson stated that “[t]he report of Dr. [James]
Baker shows that [McKinzie] is partially incapacitated[.]” Johnson also filed a
motion in limine, in which he asserted that in contesting Johnson’s application to be
appointed McKinzie’s guardian, Brown was acting “as the alter ego of [Steve] and
through his persuasion, influence[,] and inducement[,]” and he asked the trial court
to determine whether Brown has an adverse interest in the outcome sufficient to
disqualify her from serving as McKinzie’s guardian.
The appellate record includes a copy of the transcript of a deposition given by
Dr. James Baker, who McKinzie had seen for many years as his family physician.
1 The record does not reflect that Hagan filed a document on September 6, 2016, but the record does show that the former attorney ad litem (who the Court eventually discharged at McKinzie’s request) filed a rebuttal to McKinzie’s response to her application for attorney ad litem fees and costs on that date. In said document, the previous attorney ad litem stated, “The Ward is now known to be completely mentally competent.” 6 Baker testified that McKinzie has been his patient since around 2006. Baker also
explained he was testifying as a fact witness, not an expert, as Johnson had not asked
that he testify as an expert. When asked whether he was being deposed to render an
opinion addressing McKinzie’s competency, Baker testified, “I’m here to answer
questions at this deposition; that’s all.” Baker agreed that determining competency
is a field of expertise above a general medical practice, but he tied to McKinzie’s
memory problems, which Baker diagnosed in October 2007, as having resulted from
a mild cognitive impairment.
In September 2016, Baker referred McKinzie to a specialist at Bricken &
Associates to assess the severity of his memory loss. Baker also explained that in
March 2017, he prescribed Aricept to McKinzie to treat him for his memory loss.
According to Dr. Baker, Aricept helps slow memory loss in patients suffering from
dementia. When asked why he had not prescribed Aricept until 2017, Baker testified:
“Aricept’s not indicated in mild memory loss. It’s only indicated in mild stages of
dementia.” Baker also explained McKenzie came to his office on his own, without
needing someone to drive him, when he saw him in February, March, and April of
2015. As to McKinzie’s status in those visits, Baker described McKinzie as alert
and oriented to person, place, and time.
When Baker saw McKinzie in April 2015, he noted that he suspected
McKinzie was suffering from depression after losing his wife. Baker agreed that if
7 McKinzie had been suffering from dementia or Alzheimer’s disease in 2015, he
would have prescribed appropriate drugs or referred McKinzie to someone for an
evaluation. Baker explained Bricken & Associates classified McKinzie as having a
mild neurocognitive disorder. Baker felt that individuals with that diagnosis can still
perform fairly well in some facets of their lives, but have trouble comprehending
things that require careful study and consideration, such as business and managerial
decisions.
Baker explained that in forming his opinions, he relied upon the Bricken and
Associates’ findings when he signed a letter expressing his opinion about whether
McKinzie lacked capacity and needed a guardian. In the letter, which is titled
“Guardianship Capacity Assessment Letter” and was attached as an exhibit to
Baker’s deposition, Baker concluded that McKinzie suffers from mild cognitive
impairment due to a decline in memory, judgment, and decision-making ability,
could only solve elementary problems, and McKinzie could not make decisions
regarding business and managerial matters. The letter also contains Dr. Baker’s
opinion stating McKinzie is partially incapacitated and “[a] guardianship is
recommended to monitor his care and guard his assets.” When cross-examined in
the deposition by Moore, who was representing herself, Baker testified that a person
who had just lost a spouse of sixty-two years should not make life-changing
8 decisions involving matters like giving away all assets or property. The medical
records that Dr. Baker relied on were also attached as an exhibit to his deposition.
The records Dr. Baker reviewed included a report authored by Dr. Kunik in
August 2016 after Dr. Kunik examined McKinzie as authorized by the order signed
by Judge Stone. Dr. Kunik’s report states that he found McKinzie is not
incapacitated and does not show evidence of a major mental health disorder. Kunik’s
report also states that “[a]s with most older adults, Mr. Mc[K]inzie’s decision-
making and cognitive functioning is likely to be worse under stressful circumstances
and in circumstances where there is not ample time to make a decision.”
In May 2018, Moore, without the benefit of an attorney, moved to intervene
into the suit. In her application, she asked the court to appoint her as McKinzie’s
guardian because she is McKinzie’s daughter. Moore’s petition asserts that
McKinzie is “partially incapacitated due to a cognitive disorder, and that same has
been certified by an appropriate medical doctor or other health care professional able
[to] attest to same, such assessment having been tendered to the court . . . and . . .
admitted into evidence . . . at a hearing on May 14, 2018[,]” along with the deposition
of Dr. James Baker. Moore pleaded that due to his incapacity, McKinzie cannot
understand the allegations Steve had raised against him in the suit, the stakes at issue
in the litigation, and she claimed McKinzie could not make decisions about the
lawsuit without help. According to Moore, McKinzie “is confused about the status
9 of his own property due to a cognitive disorder” and had also suffered from a
disability in the past. Moore asked the court to appoint a guardian to help McKinzie
manage the issues Steve raised in the suit and to assist McKinzie “in obtaining the
return of his own real property.” Johnson’s attorney, Kerry Hagan, testified in the
case Steve filed against McKinzie that Moore and Johnson had executed waivers of
any potential conflicts of interest regarding Hagan’s representation of both Johnson
and Moore. The waiver Hagan referred to is included in the appellate record.
The trial court heard the contest in May 2018. Hagan, as Moore’s attorney,
asked the trial court to appoint Moore as the guardian of McKinzie’s person and
estate. Several months later, Brown moved to disqualify Hagan, claiming that the
Texas Rules of Disciplinary Conduct prohibit lawyers from representing opposing
parties in the same litigation. On the same date, Moore notified the parties that Hagan
was appearing in the proceedings as her attorney of record. Hagan and Moore
memorialized the agreement confirming he would represent her in a letter dated
October 2018, and the letter agreement is among the documents that appear in the
appellate record.
The transcript of May 14, 2018, contest is included in the appellate record.2
During the contest before Judge Stone, Steve testified that he sued McKinzie to
2 A court reporter was not present at the trial, but an audio recording of the trial was transcribed and is included in the appellate record. 10 enforce a lease and in that proceeding, the trial court signed a temporary restraining
order and a temporary injunction against McKinzie enforcing the lease. Steve
testified that suit is still pending. Steve explained that he is objecting to the proposed
guardianship, so he and Brown, who is his aunt, agreed Brown would appear in the
probate proceeding and oppose Moore’s application. Steve acknowledged that he
paid the attorney who appeared in the proceeding on Brown’s behalf. According to
Steve, he has no doubts about McKinzie’s capacity to manage his affairs.
Brown’s attorney, Travis Owens, testified that when he initially met Brown,
Steve was with her. Owens testified that Moore told him during a deposition that
Brown was not competent and that Steve had influenced Brown’s decision making
in the case. Owens explained that Brown chose to withdraw her request to be
appointed as McKinzie’s guardian, but she did not withdraw her pleadings opposing
Johnson’s request to be appointed as McKinzie’s temporary guardian.3 During the
hearing, Owens argued that the trial court lacked jurisdiction to do anything further
in the proceeding because the County Court’s jurisdiction expired as of October 3,
2016, sixty days after the County Judge signed an order appointing Johnson as
McKinzie’s temporary guardian because Johnson’s request did not also ask the court
to appoint a permanent guardian. Judge Stone overruled Owens’s objection that the
3 Hagan argued at trial that Brown is Steven’s alter ego. 11 court no longer had jurisdiction to decide whether McKinzie needed a permanent
guardian.
Moore’s attorney, Hagan, asked the trial court to admit Dr. Baker’s testimony
in the contested hearing, which the parties had obtained in discovery by deposition.
Brown’s attorney, Owens, objected to Dr. Baker’s testimony suggesting it was
inadmissible because Baker testified that he was testifying as a fact witness and not
an expert during the deposition. Owens suggested that Baker’s testimony was
inadmissible because he acknowledged that he had relied on a report from Bricken
& Associates when he formed his opinions and admitted that he was not testifying
as an expert. Based on these admissions, Owens argued that Dr. Baker’s opinions
were inadmissible, given that he acknowledged in his deposition that he had relied
on a report he received from Bricken and Associates, which Owens suggested was
inadmissible as hearsay, when he formed his opinion that McKinzie was
incapacitated and needed a guardian. Judge Stone stated, “I’m not too sure that there
has to be an expert who testifies in a guardianship proceeding.”
Moore testified in the contested hearing that McKinzie was married to her
mother for sixty-two years, and that McKinzie has three surviving children. Moore
told the court she thought McKinzie needed a guardian because she believes he is
partially incapacitated, given her experience that he is sometimes confused and
forgetful. Moore explained that she and her sister, Melody, help McKinzie when he
12 must deal with his finances. Moore also testified that McKinzie’s cognitive abilities
have declined over time, explaining that at times she has seen him confused about
whether he still owns certain real property. Additionally, Moore testified that
McKinzie needs assistance in understanding the lawsuits that have been filed that
affect his rights. According to Moore, the relationship between McKinzie and her
brother, Steve, has been strained, and after her mother died, Steve “turned and . . .
wanted the whole place.” Moore explained that Steve “pestered [McKinzie] about
buying the land outright.” Moore testified that she thinks “[McKinzie] is scared of
[Steve].” When asked about the possibility of Johnson becoming McKinzie’s
guardian, Moore testified she initially thought it was a good idea, but she decided
later that she wanted to be the person who helped her father with his decisions.
Moore testified, “even if I was appointed guardian, [Johnson] and I are still going to
talk and everything. [Johnson is] my dad’s best friend.”
Brown’s attorney, Hagans, moved to strike Moore’s petition in intervention,
arguing she had not complied with the Texas Estates Code and the motion to
intervene lacked a verification. Judge Stone sustained the objection and struck
Moore’s intervention. When asked about how she knew Hagan, Moore testified she
knew him because he had been McKinzie’s attorney. She also explained that Hagan
helped her with typing her pro se application seeking to intervene into the case.
13 Hagan asked the trial court to grant Moore leave to amend her application “and then
reconsider her request that she be appointed guardian.”
Judge Stone allowed Moore leave to amend her application, and the judge
asked the attorney ad litem, Greg Magee, to assist Moore with getting her pleadings
in order. Magee testified that McKinzie did not oppose having the court appoint a
guardian to protect his interests. According to Magee, McKinzie told him “he would
rather see his daughter [Moore] be his guardian because he would feel more
comfortable . . . keeping it in the family.”
On February 22, 2019, Judge Stone signed an order appointing Moore as the
permanent guardian of McKinzie’s person and estate. In the order, Judge Stone noted
that Brown had abandoned her application to be appointed McKinzie’s guardian,
and that Brown’s attorney had represented to the court that Brown’s sole request
concerned her contest to Johnson’s request seeking to have the court appoint him as
McKinzie’s guardian. The trial court’s order also states that the court would decide
questions about attorney’s fees in another order. On the same date, the trial court
denying Brown’s motion asking the court to disqualify Hagan “at this time.”
Judge Stone’s order appointing Moore as McKinzie’s permanent guardian
includes the following findings: (1) McKinzie is an incapacitated person; (2)
McKinzie “lacks the capacity to do some, but not all, of the tasks necessary to care
for himself or to manage his own property[,]” but McKinzie does have the right to
14 vote and to operate a motor vehicle; (3) McKinzie is “partially (and not totally)
incapacitated due to a cognitive disorder – with the ability to care for himself and
his property in some respects and the inability to care for himself and his property
in other respects[;]” (4) McKinzie lacks capacity to handle business and managerial
matters, invest, or make future financial plans, but retains the ability to pay for
groceries, utilities, and vehicle expenses; (5) McKinzie lacks the ability to problem-
solve or handle a bank account, but retains the ability to expend funds with a limit
of $150.00; (6) McKinzie lacks ability to contract and incur obligations, to collect
and file suit on claims, and to pay, compromise, and defend claims against him; (7)
McKinzie lacks the ability to “understand the status of his own real property and
claims related to his real property transactions in the past[;]” (8) McKinzie lacks the
ability to properly understand the allegations in the lawsuit against his son, including
“the nature of the litigation process as it relates to complex transactions that resulted
in the execution of documents transferring his property away from himself in the
historical past, and in the immediate wake of the death of [his] wife;” and (9)
McKinzie lacks the ability to properly direct the litigation between him and Steve,
“as well as the cause filed by and on behalf of [McKinzie] in this cause, and to make
decisions regarding his own participation in the litigation process.” Judge Stone also
found that appointing a guardian is in McKinzie’s best interest and alternatives to
creating a guardianship are not feasible.
15 The attorneys for McKinzie and Brown both asked Judge Stone to file written
findings of fact and conclusions of law. On April 5, 2019, Judge Stone signed written
findings of fact and conclusions of law, and Brown appealed.
ISSUE ONE
In issue one, Brown argues that Judge Stone did not have jurisdiction over the
case when, on February 22, 2019, the court appointed Moore to be McKinzie’s
permanent guardian. Specifically, Brown contends that under the Estates Code,
Judge Stone lacked jurisdiction to act in the proceedings because a temporary
guardianship cannot remain in effect for more than sixty days.
We disagree that Judge Stone lacked jurisdiction to appoint a guardian to
assist McKinzie with his affairs. Brown relies on section 1251.151 of the Estates
Code to support her argument, In pertinent part, section 1251.151 provides: “[A]
temporary guardianship may not remain in effect for more than 60 days.” Tex.
Estates Code Ann. § 1251.151. However, the fact that a temporary guardianship may
last only sixty days just means that after sixty days, the issues that relate to the
temporary guardianship become moot. In re Guardianship of Berry, 105 S.W.3d
665, 666 (Tex. App.—Beaumont 2003, no pet.). The court does not lose jurisdiction
over the case after sixty days, as section 1251.153 of the Estates Code provides that
when an order granting a temporary guardianship expires, “the court immediately
shall enter an order requiring the temporary guardian to deliver the estate remaining
16 in the temporary guardian’s possession to the person legally entitled to possession
of the estate.” Tex. Estates Code Ann. § 1251.153(a). Further, upon proof that the
guardian has delivered the remaining estate, the trial court shall discharge the
temporary guardian and release the sureties on the temporary guardian’s bond. Id. §
1251.153(b).
Moreover, the provisions of the Texas Estates Code apply to temporary
guardianships “to the extent the provisions may be made applicable.” Id. § 1251.102.
Additionally, “[t]o the extent applicable and not inconsistent with other provisions
of [the Texas Estates Code], the laws and rules governing estates of decedents apply
to guardianships.” Id. § 1001.002. Simply stated, “a probate court retains jurisdiction
to settle an estate so long as a justiciable controversy remains.” In re Guardianship
of Peterson, Nos. 01-15-00567-CV, 01-15-00586-CV, 2016 WL 4487511, at *5
(Tex. App.—Houston [1st Dist.] Aug. 25, 2016, no pet.) (mem. op.).
The county court has subject-matter jurisdiction to hear all necessary
guardianship matters that pertain to a guardianship. See Tex. Estates Code Ann. §
1022.002(a) (“In a county in which there is no statutory probate court or county court
at law exercising original probate jurisdiction, the county court has original
jurisdiction of guardianship proceedings.”). In her brief, Brown did not cite any
authorities to support her argument that the Legislature intended to divest a county
court of its jurisdiction over guardianship proceedings when the order appointing a
17 temporary guardian for a ward for some reason expired before the court reached all
other matters pertaining to the guardianship. 4 Here, Johnson’s motion asking the
County Judge to assign the guardianship proceeding to a statutory probate court
asserts that the case involved issues that would lead to a request to appoint someone
as Mckinzie’s permanent guardian. Essentially, Brown asks this Court to analyze the
dispute as though the case did not involve a guardianship proceeding and to apply
the Rules of Civil Procedure without looking to the Estates Code to decide whether
the court had jurisdiction to sign the permanent guardianship order. For the reasons
explained, the Estates Code trumps the Rules of Civil Procedure with respect to
whether the court below still had jurisdiction over the case. Because justiciable
issues remained after the temporary guardianship expired, we conclude the trial court
4 Citing In re Guardianship of Gibbs, 253 S.W.3d 866 (Tex. App.—Fort Worth 2008, pet dism’d), Brown contends that when a temporary guardianship is allowed to expire, the court loses subject-matter jurisdiction over “any subsequent proceedings[.]” However, the holding of In re Guardianship of Gibbs is distinguishable and is not as broad as Brown asserts. Rather, the appellants in Gibbs argued that the statutory probate court lacked subject-matter jurisdiction over claims against them for restitution and breach of fiduciary duty after the temporary guardianship expired. Id. at 869-70. Brown also contends that her proposition is supported by Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003). However, Bauer involved a declaratory judgment action against the presiding judge of a Harris County Probate Court, in which the plaintiff, Bauer, sought a declaration that a statute in the Probate Code regarding the appointment of temporary guardians is unconstitutional. Bauer, 341 F.3d at 354-55. A temporary guardian was appointed for Bauer, but all pending state guardianship proceedings affecting Bauer were later dismissed Id. Nothing in Bauer supports the jurisdictional proposition that Brown cites it for in her brief. 18 had jurisdiction to decide whether McKinzie needed a permanent guardian to
oversee his affairs. See In re Guardianship of Peterson, 2016 WL 4487511, at *5;
see also Tex. Estates Code Ann. § 1022.002(a). Accordingly, we overrule issue one.
ISSUE TWO
In issue two, Brown argues that the trial court erred by appointing a permanent
guardian because Dr. Kunik determined McKinzie “to be mentally competent.”
Brown contends that Kunik’s report “is the only report filed in the Clerk’s record.”
Brown ignores Dr. Baker’s testimony, which the trial court considered in finding
McKinzie needed a permanent guardian. She also ignores the lay testimony admitted
during the May 2018 hearing, which also addressed whether McKinzie needed a
permanent guardian. In addition, Brown fails to cite legal authority to support her
argument; therefore, we find the argument was inadequately briefed. See Tex. R.
App. P. 38.1(i) (providing that appellate briefs must contain appropriate citations to
authorities). For the reasons explained above, we overrule issue two.
ISSUE THREE
In issue three, Brown contends Judge Stone erred by considering Baker’s
testimony and his evaluation because Baker testified in his deposition “that he is not
an expert.” Brown maintains that Baker’s letter report, which also states McKinzie
is impaired, carries no weight because it “is expert testimony and is measured by the
requisites of E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995)[,]
19 which adopted the U.S. Supreme Court’s rationale in Daubert v. Merrell-Dow
Pharmaceuticals, 113 S. Ct. 2786 (1993).” According to Brown, Baker was not an
expert, and his reliance upon documents from Bricken & Associates in forming his
opinion is impermissible. If the trial court could not rely on Baker’s testimony and
report, Brown concludes the only remaining medical testimony before the court
established that McKinzie did not need a guardian.
The Texas Estates Code requires medical evidence before allowing a court to
appoint someone a guardian. Section 1101.103(a) of the Texas Estates Code
provides that a court may not grant a guardianship for an incapacitated person
“unless the applicant presents to the court a written letter or certificate from a
physician licensed” in Texas that is dated not earlier than the 120th day before the
date the application was filed, and is based upon an examination the physician
performed not earlier than the 120th day before the application was filed. Tex.
Estates Code Ann. § 1101.103(a); see also id. § 1101.104(1) (providing that if
intellectual disability is the basis of the proposed ward’s alleged incapacity, the
applicant must file a written letter or certificate that complies with sections
1101.103(a) and (b)).
Brown’s argument suggests that because Baker testified he was not testifying
as an expert, since no one had retained him for that purpose, his testimony is
inadmissible even if his testimony reflects he expressed opinions that a court could
20 have otherwise relied upon in a trial. Brown also suggests that because Baker
testified that he formed his opinion based partly on the report from Bricken &
Associates about the memory problems McKinzie was having, the trial court could
not properly consider or rely on the opinion Baker expressed when he testified or the
letter that he signed assessing McKinzie’s lack of capacity. Again, Brown cites no
authority in her brief to support her argument.
It is the province of the trial judge, not the witness, to determine whether the
witness can testify as an expert. Under the Texas Rules of Evidence, “[a] witness
who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Tex. R. Evid. 702. “An expert may base an opinion
on facts or data in the case that the expert has been made aware of, reviewed, or
personally observed.” Tex. R. Evid. 703. Whether a witness is qualified as an expert
is within the trial court’s discretion, and an appellate court will not reverse absent a
clear abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). A trial
court abuses its discretion if it acts without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).
21 As discussed above, Baker testified that he is a licensed family physician. His
testimony shows he has cared for McKinzie as McKinzie’s family physician since
approximately 2006. While it’s true that Baker acknowledged that Johnson did not
ask him to testify as an expert, Baker also explained he was simply there to answer
the questions posed to him in his deposition. Baker also testified that determining
whether a person is competent generally involves a field of expertise beyond his
general medical practice. Yet, Judge Stone still could have found that Baker has
more training than a layman would have in deciding whether a person was suffering
from an incapacity that resulted from a decline in the person’s cognitive function,
given his training and the period in which he had seen and treated McKinzie.
As discussed above, section 1101.103(a) simply requires that the applicant for
guardianship present a letter from a licensed physician, and section (b) provides that
the letter must contain certain findings. Tex. Estates Code Ann. § 1101.103(a), (b).
Baker testified that, in October 20007, he diagnosed McKinzie with suffering from
a mild cognitive impairment, and he explained that in September 2016, he referred
McKinzie to a specialist to assess whether McKinzie was suffering from memory
loss. Baker explained that he relied on the Bricken and Associates report when he
formulated his opinion that McKinzie needed a guardian to assist him in making
decisions about business and in managing his affairs. Baker tied McKinzie’s need
for a guardian to McKinzie’s declining memory, and the report from Bricken and
22 Associates merely offers more support for Baker’s clinical impression, based on his
examination of McKinzie over the years, that McKinzie suffered from a mild
neurocognitive disorder. Baker’s testimony reflects his opinion that McKinzie is
partially incapacitated. He also explained when he testified the reasons he thought a
guardianship would be appropriate given McKinzie’s condition.
We cannot say that Judge Stone abused her discretion when she chose to rely
on the testimony of the proposed ward’s treating family physician. See generally
Tex. Estates Code Ann. § 1101.103; Tex. R. Evid. 702, 703; see also generally
Downer, 701 S.W.2d at 241-42. We overrule issue three.
ISSUE FOUR
In issue four, Brown asserts Judge Stone erred by allowing Moore to remain
in the hearing or, alternatively, the trial court erred by permitting Moore to amend
her pleadings after the trial. See Tex. Estates Code Ann. § 1101.051(c) (providing
that “[t]he court may close the hearing at the request of the proposed ward or the
proposed ward’s counsel”). Brown fails to cite any legal authorities to support her
argument claiming Judge Stone committed reversible error by allowing Moore to be
present during the hearing. We find the argument inadequately briefed. See Tex. R.
App. P. 38.1(i).
Next, we turn to the whether the trial court erred by permitting Moore to
amend her pleadings after trial. A party may amend its pleadings within seven days
23 of the date of trial or thereafter if the party obtains leave of court to do so. Tex. R.
Civ. P. 63. The trial court “shall” grant leave to amend “unless there is a showing
that such filing will operate as a surprise to the opposite party[.]” Id. We review a
trial court’s decision granting leave to file amended pleadings after trial for an abuse
of discretion. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990).
Brown asserts that an amendment of a party’s pleadings is facially prejudicial
if the amended pleading asserts a new substantive matter that reshapes the nature of
the trial, the opposing party could not have anticipated the new matter, and the
amendment would detrimentally affect the opposing party’s presentation of its case.
See Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 623 (Tex. App.—
Dallas 2010, no pet.). Brown fails to demonstrate that she can satisfy the criteria she
relies on in Halmos or the requirement in Rule 63.
As previously discussed, Moore filed a pro se petition in intervention, in
which she asked the court to appoint her as McKinzie’s guardian in lieu of
appointing Johnson. Moore then waived citation and further notices concerning the
guardianship proceeding after filing her intervention, but the record does not indicate
she withdrew her petition. The trial was underway when Judge Stone sustained
Brown’s objection and struck Moore’s intervention. Under the circumstances,
Moore’s post-trial amendment to correct the deficiencies that existed in her original
24 intervention did not operate as a surprise, nor did Moore’s amended petition assert a
new matter that reshaped the nature of the trial, raise a new matter that Brown could
not have reasonably anticipated, or detrimentally affect the manner Brown chose to
present her case. See Tex. R. Civ. P. 63; Halmos, 314 S.W.3d at 623. Accordingly,
we hold Judge Stone did not abuse her discretion when she permitted Moore to
amend her pleadings after the trial. See Greenhalgh, 787 S.W.2d at 939; see also
Tex. R. Civ. P. 63; Halmos, 314 S.W.3d at 623. We overrule issue four.
ISSUE FIVE
In issue five, Brown argues that the trial court erred by appointing a permanent
guardian because the least restrictive alternative to guardianship “is already in
place.” See Tex. Estates Code Ann. § 1101.101(a)(1)(D) (requiring that before
appointing a guardian, the trial court must find by clear and convincing evidence
that “alternatives to guardianship that would avoid the need for the appointment of
a guardian have been considered and determined not to be feasible[.]”) Specifically,
Brown maintains that Moore and her sister have helped McKinzie manage his bank
account, that Moore has a power of attorney, and that these powers are sufficient.
Brown argues that McKinzie’s incapacity was not established without evidence of
recurring acts or occurrences in the preceding six months as opposed to the isolated
instances of negligence or bad judgment, as described during the trial testimony. See
id. § 1101.102.
25 In a bench trial, findings of fact have the same force and dignity as a jury’s
verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). In
reviewing the legal sufficiency of the evidence, we review the evidence in the light
most favorable to the trial court’s findings, crediting favorable evidence if a
reasonable factfinder could, and disregarding contrary evidence unless a reasonable
factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
reviewing the factual sufficiency of the evidence, we weigh all the evidence, and we
will set aside the judgment only if it is so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust. Id. at 826; see also Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986).
In a bench trial, the trial court acts as the factfinder, is the sole judge of the
weight and credibility of the evidence, is entitled to resolve any conflicts in the
evidence, and may choose which testimony and witnesses to believe. City of Keller,
168 S.W.3d at 819; see also Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003). The factfinder may choose to believe one witness over
another, and we may not substitute our judgment for that of the factfinder. Jackson,
116 S.W.3d at 761. In this case, Judge Stone provided the parties with written
findings.
When findings of fact are filed by the trial court[,] they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element 26 of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment.
Tex. R. Civ. P. 299.
Although Brown does not explicitly challenge the legal or factual sufficiency
of the evidence, she appears to be arguing that insufficient evidence supports the
trial court’s implied finding that a less restrictive alternative to guardianship did not
exist. However, Brown does not discuss or even mention Judge Stone’s written
findings. At the outset, we note the Judge Stone concluded that McKinzie is partially
incapacitated; that is she did not find him to be totally incapacitated.
Among Judge Stone’s written findings, she found, inter alia, that McKinzie
lacked “the capacity to do some, but not all, of the tasks necessary to care for himself
or to manage his own property[.]” The evidence admitted in the trial included the
deposition testimony of Baker, the Guardianship Capacity Assessment Letter that
Baker prepared, and the report from Bricken & Associates. In his Guardianship
Capacity Assessment Letter, Baker expressed his opinion that McKinzie is suffering
from moderate cognitive impairment due to declining memory, judgment, and
decision making. He also stated that he thought McKinzie could not adequately
manage his business and managerial affairs. Baker’s letter report states that he
“do[es] not anticipate any improvement in [McKinzie’s] mental . . . capacity.” The
November 2016 evaluation by Bricken & Associates states that McKinzie’s 27 “memory and cognitive abilities are best represented by the classification, Mild
Neurocognitive Disorder that may be due to Alzheimer’s etiology . . . . Mr. McKinzie
is reported to exhibit progressive declines in memory and higher-level cognitive
abilities over the past 1 ½ to 2 years . . ., and to have commensurate declines in
higher-level tasks of daily living requiring additional supports.” The Bricken &
Associates report also states that McKinzie’s “difficulties in daily living activities
requiring higher cognitive processes reflect a ‘moderate’ or higher level of
impairment.”
We conclude the evidence is legally and factually sufficient to support Judge
Stone’s written findings and her order appointing Moore to be McKinzie’s
permanent guardian. We further conclude that, had Judge Stone been asked to make
further findings, she would have found that the alternative to permanent
guardianship were not feasible based on the evidence admitted in the trial. See City
of Keller, 168 S.W.3d at 827; Jackson, 116 S.W.3d at 761; Cain, 709 S.W.2d at 176;
see also Tex. R. Civ. P. 299. Accordingly, we overrule issue five.
ISSUE SIX
In issue six, Brown contends the trial court erred by appointing Moore as
McKinzie’s permanent guardian because she “is disqualified as a person with an
interest adverse” to McKinzie. Specifically, Brown maintains that Moore is
disqualified because McKinzie deeded some property to her. However, Brown cites
28 no authorities to support her argument that evidence that the ward had transferred
real property to a proposed guardian, without more, establishes that the guardian has
an interest that is adverse to the ward. Moreover, nothing in the record shows that
Moore pursued any claims against McKinzie based upon any deeds. See Tex. R.
App. P. 38.1(i) (requiring briefs to contain appropriate citations to the record and
authorities). Accordingly, we overrule issue six.
ISSUE SEVEN
In issue seven, Brown argues that the trial court erred by denying her motion
to disqualify Hagan as Moore’s attorney. Specifically, Brown asserts that Moore and
Johnson are opposing parties because both sought to be McKinzie’s guardian, and it
is therefore impermissible under the rules of ethics for Hagan to represent both
Moore and Johnson. Brown does not cite any legal authorities supporting her
argument that two persons who apply to be named permanent guardian constitute
opposing parties. See Tex. R. App. P. 38.1(i) Furthermore, the record reflects that
Brown did not move to disqualify Hagan until November 14, 2018, which was six
months after the trial. See Tex. R. App. P. 33.1(a). For all these reasons, we overrule
issue seven. Having overruled each of Brown’s issues, we affirm the trial court’s
judgment appointing Moore as McKinzie’s permanent guardian.
29 AFFIRMED.
_________________________ STEVE McKEITHEN Chief Justice
Submitted on March 20, 2020 Opinion Delivered December 30, 2020
Before McKeithen, C.J., Kreger and Horton, JJ.