Youngs v. Choice

868 S.W.2d 850, 1993 Tex. App. LEXIS 3030, 1993 WL 459923
CourtCourt of Appeals of Texas
DecidedNovember 10, 1993
DocketB14-92-01052-CV
StatusPublished
Cited by33 cases

This text of 868 S.W.2d 850 (Youngs v. Choice) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Youngs v. Choice, 868 S.W.2d 850, 1993 Tex. App. LEXIS 3030, 1993 WL 459923 (Tex. Ct. App. 1993).

Opinion

OPINION

SEARS, Justice.

Appellant appeals pro se from two partial summary judgments granted in favor of Ap-pellee, and from an order of sanctions entered by the trial court. In three points of error, Appellant challenges the guardianship of her mother, May T. Youngs, the judicial partition-in-kind of Appellant’s real property, and the sanctions imposed by Judge Hutchi-son. We affirm all three orders.

On November 28, 1988, Maggie S. Choice, Appellant’s daughter, was appointed permanent guardian of May T. Youngs and of May Youngs’ estate. On August 11, 1989, the Guardian sued Appellant for: (1) partition of property jointly owned by Appellant and the ward; (2) reimbursement based on non-accessibility to the property created by the Appellant; (8) rents owed because Appellant was living on the property; (4) waste of the property; and (5) taxes. In November of 1989, Appellant filed her “First Amended Answer” and requested that the trial court deny the partition and dissolve the guardianship of her mother, or in the alternative, remove Maggie Choice as guardian. The Guardian propounded discovery upon the Appellant, and in particular, served Appellant with requests for admissions. Appellant failed to respond to the discovery, and the Guardian moved for summary judgment based upon the deemed admissions. The trial court granted partial summary judgments on both the guardianship and partition issues. It is from these orders that Appellant seeks relief.

We begin by noting that in order to appeal a probate matter, it is not necessary that the decision, order, or decree fully and finally dispose of the entire probate proceeding. Instead, such an order is appealable if it finally disposes of the issue or controverted question for which that particular part of the proceeding was brought. 1 Taliaferro v. Texas Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.-Fort Worth 1983, no writ). In other words, a probate order is appealable if it finally adjudicates a substantial right. Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex.App.-Corpus Christi 1993, no writ). This is because a probate court conducts its business in a continuing series of events. Id. As the Fort Worth Court of Appeals noted in Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex.App.-Fort Worth 1987, no writ):

The nature of “administration” contemplates decisions to be made on which other decisions will be based. There must be a practical way to review erroneous, controlling, intermediate decisions before the consequences of the error do irreparable injury.

Therefore, even though both summary judgments are entitled “Partial Summary Judgment,” we hold that both judgments are final judgments for this appeal.

In her first point of error, Appellant challenges the guardianship of May T. Youngs. Appellant claims that the trial court violated May Youngs’ due process rights when it appointed Maggie Choice as guardian, and alternatively, that the trial court erred in failing to remove Ms. Choice as guardian.

This Court can not address the substance of Appellant’s claim that May Youngs was denied due process when a guardian was appointed, because the claim is untimely and the record is insufficient for review. Appellant admits in her brief that she received notice of the pending guardianship. See, Appellant’s brief on page 20. However, Appellant did not move to have the guardianship set aside until 11 months after the permanent guardianship had been established. Appellant’s appeal on this issue is untimely. See, Tex.R.App.P. 5, 40, 41 and 45. *853 Further, Appellant has failed to bring us any evidence from the hearing on the appointment of the permanent guardian. An appeal from the selection of a guardian is viewed from the record as a whole. Ramirez v. Garcia de Bretado, 547 S.W.2d 717 (Tex.Civ.App.-El Paso 1977, no writ). Without the evidence from the hearing below, this Court cannot determine if the trial court erred in appointing Maggie Choice as guardian. Adams v. Sadler, 696 S.W.2d 690 (Tex.App.-Austin 1985, writ ref'd, n.r.e.). Accordingly, we overrule Appellant’s point complaining of the appointment of Maggie Choice as guardian.

Appellant also complains that the trial court erred in granting summary judgment against her in her claim for removal of Ms. Choice as guardian. Tex.PROB.Code Ann. § 222 (Vernon Supp.1998), controls the removal of guardians. 2 The burden to prove grounds for removal is on the party challenging the guardianship. See, Chapa v. Hernandez, 587 S.W.2d 778 (Tex.Civ.App.-Corpus Christi 1979, no writ) and Hernandez v. Borjas, 734 S.W.2d 776 (Tex.App.-Fort Worth 1987, no writ). A defendant of a removal notice may prevail on summary judgment if he can establish as a matter of law that the he, as guardian, has not violated any of the provisions of § 222. See, Yturri v. Yturri, 504 S.W.2d 809 (Tex.Civ.App.-San Antonio 1978, no writ); Novak v. Schellenberg, 718 S.W.2d 822 (Tex.App.-Corpus Christi 1986, no writ); and Hernandez v. Borjas, 734 S.W.2d 776 (Tex.App.-Fort Worth 1987, no writ). In this case, requests for admissions were served upon the Appellant which, if deemed true, negated the cause of action for removal. Appellant failed to respond to the admissions, and accordingly, they were deemed admitted. See, Tex R.Civ.P. 169. Deemed admissions are proper summary judgment proof. TexR.Civ.P. 166a(c). Based upon the evidence presented, we hold that the trial court properly granted summary judgment for the Guardian.

Appellant contended at the trial level that because she had filed a “Motion to Dismiss,” she was not required to answer any discovery until her motion had been heard and overruled. The trial court went out of its way on two separate occasions to advise Appellant that she was required to answer all discovery, and that if she failed to do so, she would be sanctioned. Appellant ignored the advice and direction of the court. Although Appellant proceeded pro se, “pro se litigants are held to the same standards as licensed attorneys.” Brown v. Texas Employment Commission, 801 S.W.2d 5, 8 (Tex.App.—Houston [14th Dist.] 1990, writ denied). We cannot hold Appellant to a less stringent standard than another litigant. We overruled Appellant’s first point of error.

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Bluebook (online)
868 S.W.2d 850, 1993 Tex. App. LEXIS 3030, 1993 WL 459923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/youngs-v-choice-texapp-1993.