In the Guardianship of Wyatt Daniel Endicott v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 15, 2025
• Docket: 10-23-00202-CV
• Status: Published

Opinion

Court of Appeals Tenth Appellate District of Texas

10-23-00202-CV

In the Guardianship of Wyatt Daniel Endicott

On appeal from the County Court at Law of Walker County, Texas Judge Tracy M. Sorensen, presiding Trial Court Cause No. 10459G

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Jessica Trisler appeals the trial court’s order appointing Robert Endicott

permanent guardian of the person and estate of Wyatt Daniel Endicott. We

affirm.

Background

Wyatt was born on December 27, 2004, to Jessica and Robert. Robert

has been the custodial parent of Wyatt since 2009, and the 12th District Court

of Walker County had continuing exclusive jurisdiction over Wyatt. On May

24, 2023, after Wyatt had turned 18 years old, Robert filed an application to be

appointed as the permanent guardian of Wyatt’s person and estate pursuant to Section 1103.002 of the Texas Estates Code. Both Jessica and Wyatt were

served with notice of the guardianship proceeding on May 25, 2023. On that

same day, the trial court signed an order appointing Robert as the permanent

guardian of the person and estate of Wyatt. On June 2, 2023, Jessica filed a

contest to the guardianship application and plea in intervention, and on June

16, 2023, Jessica filed a plea to the jurisdiction and a motion to vacate the order

appointing Robert as Wyatt’s guardian. After a hearing, the trial court denied

the plea to the jurisdiction and motion to vacate the order appointing Robert

as guardian. There is nothing in the record to show that the trial court ruled

on the contest to the guardianship application.

Jessica appeals from the trial court’s order appointing Robert as

guardian of the person and estate of Wyatt. She argues in five issues that (1)

the trial court’s order naming Robert as permanent guardian is void because

the trial court did not have personal jurisdiction over Wyatt, (2) the trial court’s

order naming Robert as permanent guardian is void because the trial court did

not have subject-matter jurisdiction, (3) Robert’s counsel was not authorized to

file the application, (4) the application did not comply with the governing

statute, and (5) the trial court erred in approving a bond and oath that were

never executed.

In the Guardianship of Wyatt Daniel Endicott Page 2 Issues One and Two

In her first and second issues, Jessica argues that the trial court’s order

is void because the trial court lacked personal and subject-matter jurisdiction.

To issue a valid and binding judgment or order, a court must have both subject-matter jurisdiction over a case and personal jurisdiction over the party it purports to bind. Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7–8 (Tex. 2021). Subject-matter jurisdiction refers to a court's statutory or constitutional power to adjudicate a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The subject-matter jurisdiction of Texas courts derives solely from the Texas Constitution and state statutes. In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 459–60 (Tex. 2011). Because subject-matter jurisdiction cannot be conferred on a court by consent or waiver, a judgment is never considered final if the court that issued it lacked subject-matter jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Partly out of a desire to “reduce the vulnerability of final judgments to attack,” id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e (AM. L. INST. 1982)), we are reluctant to conclude that a statutory requirement affects a court's subject-matter jurisdiction absent clear legislative intent to that effect. City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). ...

Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Establishing personal jurisdiction over a party requires “citation issued and served in a manner provided for by law.” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). However, unlike challenges to subject-matter jurisdiction, objections to personal jurisdiction generally can be waived, and a party may consent to the personal jurisdiction of a court. In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014).

In the Guardianship of Wyatt Daniel Endicott Page 3 In re Guardianship of Fairley, 650 S.W.3d 372, 379-80 (Tex. 2022).

Jessica first argues that the trial court did not have personal jurisdiction

over Wyatt because he was not properly served. Section 1051.103 of the Texas

Estates Code requires service of citation on “a proposed ward who is 12 years

of age or older.” TEX. EST. CODE ANN. § 1051.103(a). Section 1051.051 provides

that if the person to be cited or notified does not have an attorney of record in

the proceeding, “the sheriff or constable shall serve the citation or notice.” TEX.

EST. CODE ANN. §1051.051(b)(1). The record indicates that Wyatt was served

by a private process server. Jessica contends that because Wyatt was not

served in accordance with Section 1051.051(b), the trial court did not have

personal jurisdiction over him, citing Guardianship of Fairley as authority.

650 S.W.3d at 383.

In Guardianship of Fairley, the Court held that “a technical defect in

personal service on the ward does not deprive the probate court of subject-

matter jurisdiction or personal jurisdiction over the ward where the ward is

personally served and participates in the proceedings through counsel without

objection.” 650 S.W.3d at 375. While Jessica acknowledges that the Court held

that the defect in service did not deprive the trial court of jurisdiction, she

maintains that the core holding is that the service was defective but that the

defect was waived because the ward participated in the proceedings. She

In the Guardianship of Wyatt Daniel Endicott Page 4 contends that because Wyatt did not participate in any proceedings, he did not

waive the defective service, and the trial court did not acquire personal

jurisdiction over him.

The Court in Guardianship of Fairley specifically noted that there was

no dispute that the ward was personally served with the application for

guardianship. Id. at 387-88. The Court distinguished cases in which courts

held a guardianship order void, noting that in those cases the proposed ward

was never personally served. Id. at 388-89. As in Guardianship of Fairley,

there is no dispute that Wyatt was personally served. Because Wyatt was

personally served, and because Jessica does not allege any defects in service

that rise to the level of a due process violation, we conclude that the trial court’s

order was not void for lack of personal jurisdiction. Id. at 388. We overrule

Jessica’s first issue.

Jessica next argues that the trial court did not have subject-matter

jurisdiction at the time it signed the order. Section 1051.106 provides that:

The court may not act on an application for the creation of a guardianship until the applicant has complied with Section 1051.104(b) and not earlier than the Monday following the expiration of the 10-day period beginning on the date service of notice and citation has been made as provided by sections 1051.102, 1051.103, and 1051.104(a)(1).

In the Guardianship of Wyatt Daniel Endicott Page 5 TEX. EST. CODE ANN. § 1051.106. Jessica argues that the trial court had no

subject-matter jurisdiction to sign the order on May 25, 2023, less than the 10-

day period required by section 1051.106.

A guardianship proceeding begins with “the filing of the application for

the appointment of a guardian of the estate or person, or both.” TEX. EST. CODE

ANN. § 1022.002(d); Guardianship of Fairley, 650 S.W.3d at 381. The trial

court obtained subject-matter jurisdiction over the guardianship when Robert

filed his application for guardianship. See Guardianship of Fairley, 650

S.W.3d at 390. A failure to wait for the expiration of the ten-day period did not

deprive the court of jurisdiction to establish a guardianship. Hailey v. Paduh,

No. 04-12-00823-CV, 2014 WL 1871334, at *10 (Tex. App.—San Antonio May

7, 2014, no pet) (mem. op); In re Guardianship of V.A., 390 S.W.3d 414, 421

(Tex. App.—San Antonio 2012, pet. denied). We conclude that the trial court’s

order was not void for lack of subject-matter jurisdiction. Hailey, 2014 WL

1871334 at *10. We overrule Jessica’s second issue.

Issue Four

In her fourth issue, Jessica argues that the trial court erred in signing

an order naming Robert as permanent guardian because his application failed

to comply with the governing statute. Robert filed his application for

In the Guardianship of Wyatt Daniel Endicott Page 6 permanent guardianship under Section 1103.002 of the Texas Estates Code.

That section provides:

(a) Notwithstanding any other law, if the applicant who files an application under Section 1101.001 or 1103.001 is a person who was appointed conservator of a disabled child and the proceeding is a guardianship proceeding described by Section 1002.015(1) in which the proposed ward is the incapacitated adult with respect to whom another court obtained continuing, exclusive jurisdiction in a suit affecting the parent-child relationship when the person was a child, the applicant may present to the court a written letter or certificate that meets the requirements of Sections 1101.103(a) and (b).

(b) If, on receipt of the letter or certificate described by Subsection (a), the court is able to make the findings required by Section 1101.101, the court, notwithstanding Subchapter C, Chapter 1104, shall:

(1) appoint the conservator as guardian without conducting a hearing; and

(2) to the extent possible preserve the terms of possession and access to the ward that applied before the court obtained jurisdiction of the guardianship proceeding.

TEX. EST. CODE ANN. § 1103.002. Section 1101.103 states that:

(a) Except as provided by Section 1101.104, the court may not grant an application to create a guardianship for an incapacitated person, other than a minor or person for whom it is necessary to have a guardian appointed only to receive funds from a governmental source, unless the applicant presents to the court a written letter or certificate from:

(1) a physician licensed in this state, if the proposed ward's alleged incapacity results from a physical condition or mental condition; or

In the Guardianship of Wyatt Daniel Endicott Page 7 (2) a psychologist licensed in this state or certified by the Health and Human Services Commission to perform the examination, in accordance with rules adopted by the executive commissioner of the commission governing examinations of that kind, if the proposed ward's alleged incapacity results from a mental condition.

(a-1) The physician or psychologist who provides the letter or certificate under Subsection (a) must:

(1) have experience examining individuals with the physical or mental condition resulting in the proposed ward's alleged incapacity; or

(2) have an established patient-provider relationship with the proposed ward.

(a-2) The letter or certificate required by Subsection (a) must be:

(1) dated not earlier than the 120th day before the date the application is filed; and

(2) based on an examination the physician or psychologist performed not earlier than the 120th day before the date the application is filed.

TEX. EST. CODE ANN. § 1101.103. Section 1101.104 provides that:

(a) If an intellectual disability is the basis of the proposed ward's alleged incapacity, the court may not grant an application to create a guardianship for the proposed ward unless the applicant presents to the court a written letter or certificate that:

(1) complies with Sections 1101.103(a) and (b); or

(2) shows that not earlier than 24 months before the hearing date:

In the Guardianship of Wyatt Daniel Endicott Page 8 (A) the proposed ward has been examined by a physician or psychologist licensed in this state or certified by the Health and Human Services Commission to perform the examination, in accordance with rules of the executive commissioner of the commission governing examinations of that kind, and the physician's or psychologist's written findings and recommendations include a determination of an intellectual disability; or

(B) a physician or psychologist licensed in this state or certified by the Health and Human Services Commission to perform examinations described by Paragraph (A) updated or endorsed in writing a prior determination of an intellectual disability for the proposed ward made by a physician or psychologist licensed in this state or certified by the commission.

TEX. EST. CODE ANN. § 1101.104.

In his application, Robert stated that Wyatt is an adult who is totally

incapacitated because of a mental condition. Robert attached a disability

report in effort to comply with Sections 1101.103 and 1101.104. That report

consisted of Wyatt’s school records and evaluations. The records indicated that

Wyatt had a psychological evaluation on November 28, 2015. The reports

attached as proof of Wyatt’s disability do not comply with the requirements of

Sections 1101.103 and 1101.104.

The defects in Robert’s application are not fatal. See In re Guardianship

of Johnson, No 10-19-00351-CV, 2020 WL 5949958 at *5 (Tex. App.—Waco Oct.

7, 2020, no pet.). Section 1055.002 of the Texas Estates Code states,

A court may not invalidate a pleading in a guardianship proceeding, or an order based on the pleading, on the basis of a

In the Guardianship of Wyatt Daniel Endicott Page 9 defect of form or substance in the pleading unless a timely objection has been made against the defect and the defect has been called to the attention of the court in which the proceeding was or is pending.

TEX. EST. CODE ANN. § 1055.002.

Jessica filed a contest to Robert’s guardianship application and noted

that the application did not comply with Section 1101.103. Jessica then filed

a plea to the jurisdiction and motion to vacate. In that filing, she noted that

even if the trial court had jurisdiction, the application did not comply with

Section 1101.103. The trial court held a hearing on Jessica’s plea to the

jurisdiction and motion to vacate, but Jessica did not present her contest to the

guardianship application to the trial court at that time. The trial court did not

rule on Jessica’s contest to the guardianship application or address her

complaints about the defects in the application.

Section 1101.103 does not require the written letter or certificate to be

filed at the time the application is filed. See Johnson, 2020 WL 5949958 at *5.

Therefore, the defect in Robert’s application could have been cured by a timely

evaluation. Because Jessica did not obtain a ruling on her contest to the

guardianship application or request an evaluation in compliance with the

statute, she has waived her complaint for review. TEX. R. APP. P. 33.1(a); see

Johnson, 2020 WL 5949958 at *5.

In the Guardianship of Wyatt Daniel Endicott Page 10 Moreover, we review a guardianship determination under an abuse-of-

discretion standard. In re Guardianship of Finley, 220 S.W.3d 608, 612 (Tex.

App.—Texarkana 2007, no pet.); Thedford v. White, 37 S.W.3d 494, 496 (Tex.

App.—Tyler 2000, no pet.). We view the evidence in the light most favorable

to the trial court’s decision. Paradigm Oil, Inc. v. Retamco Operating, Inc., 161

S.W.3d 531, 536 (Tex. App.—San Antonio 2004, pet. denied); Thedford, 37

S.W.3d at 496-97.

While Jessica challenges the disability report because it does not comply

with the applicable statutes, she does not contest the report’s findings on

Wyatt’s disability. Robert presented evidence that Wyatt is incapacitated

because of a mental condition. Because the trial court had reports

documenting Wyatt’s disability, it did not abuse its discretion in appointing

Robert as guardian. We overrule Jessica’s fourth issue.

Issue Three

In the third issue, Jessica complains that Robert’s counsel was not

authorized to file the application for guardianship. Section 1054.201 states

that “an attorney representing any person’s interests in a guardianship

proceeding, including an attorney ad litem, must be certified by the State Bar

of Texas, or a person or other entity designated by the state bar, as having

successfully completed a course of study in guardianship law and procedure

In the Guardianship of Wyatt Daniel Endicott Page 11 sponsored by the state bar or the state bar’s designee.” TEX. EST. CODE ANN. §

1054.201. While Robert’s counsel was not certified at the time he filed the

application, he has subsequently completed the requirements for certification.

We cannot conclude that that trial court abused its discretion by denying

Jessica’s motion to vacate its order naming Robert guardian of the person and

estate of Wyatt. We overrule the third issue.

Issue Five

In her fifth issue, Jessica argues that the trial court erred in approving

a bond and oath that were never executed. A guardian is considered to have

qualified when the guardian has:

(1) taken and filed the oath, or made and filed the declaration, required under Section 1105.051;

(2) given the required bond;

(3) obtained the judge's approval of the bond; and

(4) filed the bond with the clerk.

TEX. EST. CODE ANN. § 1105.002. An oath may be taken and a bond may be

given and approved at any time before the 21st day after the date of the order

granting the guardianship. TEX. EST. CODE ANN. § 1105.003. The record

indicates that Robert obtained a bond from Western Surety Company effective

May 31, 2023. The trial court approved the bond on July 25, 2023. Jessica

In the Guardianship of Wyatt Daniel Endicott Page 12 now complains that Robert did not take the required oath or sign the bond.

The record before us does not reflect that the bond was signed by Robert or

that Robert executed a written oath. Furthermore, the record before us does

not reflect that Jessica raised either complaint in the trial court. To preserve

a complaint or objection for appeal, the record must show that the complaint

was made to the trial court by a timely request, objection, or motion. See TEX.

R. APP. P. 33.1. We overrule Jessica’s fifth issue.

Conclusion

We affirm the trial court’s order naming Robert Endicott guardian of the

person and estate of Wyatt Endicott. Jessica’s motion for temporary orders is

dismissed as moot.

MATT JOHNSON Chief Justice

OPINION DELIVERED and FILED: May 15, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06

In the Guardianship of Wyatt Daniel Endicott Page 13