In re Fairley

• Decision Date: 04 March 2022
• Docket Number: 20-0328
• Citation: 650 S.W.3d 372
• Parties: In the GUARDIANSHIP OF James E. FAIRLEY
• Court: Texas Supreme Court

650 S.W.3d 372

In the GUARDIANSHIP OF James E. FAIRLEY

No. 20-0328

Supreme Court of Texas.

Argued September 30, 2021

OPINION DELIVERED: March 4, 2022

Rehearing Denied September 2, 2022

Gabrielle O'Connor, Laura A. Cavaretta, San Antonio, Erin McNiece, William E. Leighner, for Respondent.

Susan Cecilia Norman, Houston, Craig T. Enoch, Austin, for Petitioner.

Max Renea Hicks, for Amicus Curiae Texas College of Probate Judges.

Justice Huddle delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined.

After Mauricette Fairley acted as her husband's guardian for the last three years of his life, their daughter Juliette Fairley—the petitioner here—asks us to void all orders entered in the guardianship proceeding because the proposed ward, her now-deceased father, was personally served by a private process server. Specifically, Juliette claims personal service on her father by a private process server was insufficient to vest jurisdiction in the probate court because, she asserts, Chapter 1051 of the Estates Code requires a proposed ward in Texas to be personally served by a sheriff, constable, or other elected officeholder.

We hold the probate court's orders are not void. While the Estates Code directs that personal service on a ward be effected in a particular manner, it does not reflect an intent by the Legislature that the failure to satisfy each technical requirement—as opposed to the failure to personally serve the ward altogether—is jurisdictional. Thus, we hold 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. We affirm the court of appeals' judgment.

I. Background

Juliette seeks a guardianship in Texas, and her application is dismissed.

This dispute between James Fairley's wife, Mauricette, and his daughter, Juliette, has a tortured procedural history and has spanned a decade. The parties first involved the courts in Bexar County in 2011, when James was 81 and Juliette alleged that he needed a guardian. The probate court appointed a guardian ad litem who determined a guardianship was not necessary, so that proceeding was closed.¹ The following year, Juliette filed another application asking to be appointed James's permanent guardian. But Juliette agreed to nonsuit her application in exchange for certain promises regarding both James's care and Juliette's access to James. The probate court thus entered an order dismissing Juliette's second guardianship application in September 2014.

Juliette moves James to New York, and dueling proceedings are filed in Texas and New York.

One month after the Bexar County probate court dismissed her application to serve as James's permanent guardian, Juliette took her father from his San Antonio assisted-living facility to New York, where she lived. Mauricette then requested that a Bexar County probate court appoint her as James's temporary guardian under Estates Code Section 1251.001.² Mauricette alleged that Juliette had unlawfully removed James from his residence and defrauded him into signing powers of attorney, which Juliette used to take money from James's bank account. Mauricette claimed that Juliette endangered James's health and safety and that Mauricette's appointment as James's temporary guardian was necessary for his protection.

James was personally served with this temporary-guardianship application in New York in November 2014. According to an Affidavit of Service signed by Sara M. Clark, she served James with the application and citation at a New York residence "by personally delivering and leaving the same with JAMES E. FAIRLEY." The affidavit describes James's physical appearance and location within the residence where he was served. In her affidavit, Clark states that she is over the age of 18 and is "not a party to this action."

Three days after Mauricette filed her temporary-guardianship application in Texas, Juliette filed a petition in New York state court asking that she be appointed James's guardian. Mauricette opposed, and the New York court held a hearing on December 1, 2014. After determining that James was "able and willing to attend," the New York court recessed the hearing to allow James to be brought to the courthouse. The court received evidence from a court-appointed evaluator who personally observed the "warm and affectionate" reunion between James and Mauricette at the courthouse. The New York court appointed Mauricette and the court evaluator "special temporary co-guardians" of James for the limited purpose of returning James to Texas so the Bexar County probate court could resolve any further dispute over the guardianship. The New York court also revoked the powers of attorney in favor of Juliette and reinstated those in favor of Mauricette.

Mauricette files an application for permanent guardianship of James.

Back in Texas, on December 8, 2014, Mauricette filed (in the same probate court and under the same cause number as her application for temporary guardianship) an application seeking appointment as James's permanent guardian.³ Mauricette alleged that James was totally incapacitated and that Juliette was a threat to his welfare.

Shortly after Mauricette filed her application for permanent guardianship, the probate court held a hearing on Mauricette's application for temporary guardianship. James was represented by a court-appointed attorney ad litem, who had filed an answer on James's behalf in this proceeding and had served as James's attorney ad litem during the 2012 proceedings in which Juliette sought to be appointed as James's guardian. Following an evidentiary hearing, the probate court appointed Mauricette as James's temporary guardian pending the resolution of Juliette's contest to the application for a permanent guardianship. See TEX. EST. CODE § 1251.052(b)(1) (authorizing a temporary guardian to serve until the conclusion of the hearing contesting an application for guardianship). The probate court also ordered that James's attorney ad litem "continue[ ] ... to represent the interests of the Proposed Ward during the pendency of this contest."

One month later, James was personally served with the application for permanent guardianship at the San Antonio assisted-living facility to which he had returned. The return of citation shows that James was personally served with the application and citation by a Texas licensed private process server.

The probate court appoints Mauricette as James's permanent guardian.

Mauricette served as James's temporary guardian under the probate court's order for most of 2015. Then, following a November 2015 hearing, the probate court appointed Mauricette as James's permanent guardian. The probate court found James was "totally incapacitated" and that it was in his best interest that Mauricette be appointed guardian of his person. The probate court's order notes that James "appeared by and through his court appointed attorney ad litem."

Juliette challenges the appointment order through appeal and mandamus.

Juliette appealed the probate court's order appointing Mauricette as James's permanent guardian. She argued the probate court abused its discretion by requiring her to deposit $20,000 as security for the probable costs of the guardianship proceeding and then dismissing her cross-application when she failed to do so. The court of appeals affirmed, and we denied Juliette's petition for review. In re Guardianship of Fairley , No. 04-16-00096-CV, 2017 WL 188103 (Tex. App.—San Antonio Jan. 18, 2017, pet. denied).

Juliette then filed a pro se petition for writ of mandamus in March 2018. She argued that the order requiring her to pay $20,000 as security and later orders based on her failure to comply were void because they violated "the Texas Rules of Civil Procedure, the 8th Amendment, the Due Process and Equal Protection Clause [and] the Texas Estates Code." The court of appeals denied Juliette's mandamus petition. In re Guardianship of Fairley , No. 04-18-00190-CV, 2018 WL 1610924 (Tex. App.—San Antonio Apr. 4, 2018, orig. proceeding).

Juliette files a mandamus petition in this Court, asserting the probate court never acquired jurisdiction over James.

Juliette filed a pro se petition for writ of mandamus in this Court in June 2018, then retained new counsel. Because some of the challenged orders were issued by probate court judges who no longer presided over the case, the Court abated the mandamus proceeding under Rule of Appellate Procedure 7.2(b) to allow the current judge to reconsider those orders. Juliette then filed in the probate court a motion to reconsider in which she argued, for the first time, that all the probate court's orders after September 2014 were void because the court never obtained jurisdiction over James.

Specifically, Juliette argued that Mauricette's applications for guardianship were served on James by private process servers in violation of Section 1051.103 of the Estates Code, which Juliette contended required James to be served by "[t]he sheriff or other officer." TEX. EST. CODE § 1051.103(a)(1). The probate court denied Juliette's motion, finding that "citation was properly served upon [James] in this cause as required by the TEXAS ESTATES CODE and the Texas Rules of Civil Procedure [and] that this Court has jurisdiction over the pending guardianship proceeding in this Cause."

James dies, and Juliette's mandamus petition is denied.

After the probate court denied reconsideration, we reinstated the mandamus proceeding, and Juliette filed a redrawn petition asserting that every order issued after September 2014—the date her 2012 application was dismissed—was void due to what she contends was improper service of Mauricette's guardianship applications. James died soon thereafter, and...