IN RE GUARDIANSHIP OF ARCHER

• Decision Date: 03 May 2006
• Docket Number: No. 4,4
• Citation: 203 S.W.3d 16
• Parties: IN RE THE GUARDIANSHIP OF JOHN R. "JACK" ARCHER, AN INCAPACITATED PERSON.
• Court: Texas Court of Appeals

203 S.W.3d 16

IN RE THE GUARDIANSHIP OF JOHN R. "JACK" ARCHER, AN INCAPACITATED PERSON.

No. 4-02-00547-CV.

Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: May 3, 2006.

Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.

OPINION

Opinion by: KAREN ANGELINI, Justice

Sherri Archer Loveday brought a derivative legal malpractice action in the probate court against appellees on behalf of her uncle's temporary guardian, alleging that the temporary guardian had failed or refused to prosecute the lawsuit. Loveday appeals the trial court's dismissal of her claims against appellees. Appellees respond that the trial court correctly dismissed Loveday's claims because she did not have standing or capacity to bring suit on behalf of her uncle's temporary guardian. We affirm the judgment of the trial court.

Background

Loveday's uncle, John R. "Jack" Archer, is an incapacitated individual. This case arises from Loveday's belief that her uncle's attorneys had been careless with his money and her concern that her uncle's temporary guardian had not brought suit against the attorneys.

Several years ago, Archer suffered a stroke that affected his mental abilities. Thereafter, Archer made changes to his estate plan, including the creation of a trust containing most of his assets, with the help of his girlfriend, Pamela Rucker, and several attorneys, including Douglass Hearne, Richard Leshin of the Kleberg Law Firm, J.G. Adami, Jr. of Warburton, Adami, McNeill, Paisley & Appell, P.C., and Ted Anderson.

On May 9, 2000, Loveday's siblings, David B. Archer and Carol Anne Archer-Bugg, instituted guardianship proceedings in Bexar County. The trial court assigned case number 2000-PC-1460 to the Bexar County guardianship proceeding. The trial court¹ entered a number of orders appointing representatives. First, on August 8, 2000, the trial court appointed A. Chris Heinrichs as attorney ad litem. Next, on October 23, 2000, the trial court appointed Douglas C. Young as guardian ad litem. Then, on February 1, 2001, the trial court appointed Rucker as temporary guardian of the person. Also, on February 5, 2001, the trial court appointed J.R. Hamilton as temporary guardian of the estate. The order appointing Hamilton gave him the authority, among other things, to "marshal and gather the assets of John R. 'Jack' Archer and to report to the Court as to the assets which comprise the Estate and property of John R. 'Jack' Archer" and "[s]ubject to further court approval, to take such further actions with respect to the Estate, assets and property of John R. 'Jack' Archer as may be warranted or required to properly manage and administer such assets and property."

After the appointment of these representatives, on November 8, 2001, Loveday filed three separate lawsuits in Cause No. 2000-PC-1460:² (1) a legal malpractice and breach of fiduciary duty action against the attorneys who had helped Archer alter his estate plan and set up the trust (Hearne, Leshin and his firm, Adami and his firm, and Anderson) as well as Archer's attorney ad litem (Heinrichs) (collectively, "the lawyer defendants"); (2) an action against Hamilton pursuant to section 772 of the Probate Code, alleging that Hamilton had breached his fiduciary duty to Archer while he was temporary guardian of the estate; and (3) an emotional distress action against Anderson and Rucker, alleging that they had caused Archer emotional distress. This appeal involves the first case, the malpractice case against the lawyer defendants.

In her petition alleging malpractice and breach of fiduciary duty, Loveday alleges that she has standing to bring suit on behalf of Archer's temporary guardian:

The Plaintiff, who is Jack Archer's niece, is a person interested in Jack Archer's estate and therefore has standing to bring this lawsuit. The Plaintiff has standing to bring a derivative action on behalf of Hamilton, the Temporary Guardian of Jack Archer's estate, because Hamilton has failed and/or refused to prosecute this lawsuit.

The lawyer defendants responded by arguing that Loveday lacked standing and capacity to bring the action and moving for the trial court to dismiss Loveday's claims. While the lawyer defendants' motions were pending, on April 16, 2002, the trial court³ removed Hamilton as temporary guardian of the estate and appointed Richard Tinsman as successor temporary guardian of the estate. The order appointing Tinsman gave him the power to "marshal and gather the assets of John R. `Jack' Archer, and to report to the Court as to the assets which comprise the Estate and property of John R. 'Jack' Archer" and "[s]ubject to further Court approval, to manage and administer such assets and property and to take all such further actions with respect to the Estate, as may be warranted or necessary." Tinsman entered a one-year limitation tolling agreement with the lawyer defendants, effective April 24, 2002. In an order signed May 31, 2002, the trial court gave Tinsman permission to sign and file the limitation tolling agreement with the court.

On May 2, 2002, the trial court held a hearing on the lawyer defendants' pleas in abatement.⁴ The lawyer defendants argued that Loveday lacked standing and capacity to bring a derivative suit against them as long as there was a guardian of the estate who could bring suit. At the lawyer defendants' request, the trial court took judicial notice of the pleadings, motions, and orders in the "A" case and the guardianship case. Leshin's attorney also offered the Archer trust indenture as an exhibit and Hearne's testimony to authenticate it. Loveday's attorney offered the trust indenture, the petition against the lawyer defendants, and the petition against Rucker and Anderson. At the hearing, the trial court asked Loveday's attorney, "[A]s long as there's a guardian of the estate who has the potential to bring the action . . . would that still allow you to bring a derivative suit?" Later, the trial court ruled that the lawyer defendants should be dismissed from the case and asked for a proposed order. In an order dated July 3, 2002, the trial court granted the lawyer defendants' motions and dismissed Loveday's claims. That same day, the trial court also discharged Tinsman as temporary guardian and appointed Mark Murray as temporary guardian of the estate. The order appointing Murray gave him the power to "marshal and gather the assets of John R. 'Jack' Archer and to report to the Court as to the assets which comprise the Estate and property of John R. 'Jack' Archer, the location of each of such assets and the value of such assets" and "[s]ubject to further Court approval, to manage and administer such assets and property and to take all such further actions with respect to the Estate as may be warranted or necessary."

On July 24, 2002, Loveday requested findings of fact and conclusions of law and submitted proposed findings and conclusions. On July 31, 2002, Loveday filed a notice of appeal, indicating her intent to appeal from the trial court's order dismissing her claims. On August 21, 2002, Loveday filed a notice of past due findings of fact and conclusions of law. On September 9, 2002, Loveday moved to sever the claims against the lawyer defendants from the other claims in the "A" case so that the order dismissing the lawyer defendants would become final and appealable. At the hearing on the motion to sever, the trial court⁵ refused to issue findings of fact and conclusions of law, noting that the judge⁶ who had issued the order dismissing the claims was no longer presiding over the case: "The Judge can't. He's no longer the Judge and I didn't see the trial so, I can't. So there can be no findings or conclusions." The trial court also declined to reconsider Judge Rickhoff's order dismissing the lawyer defendants. The trial court, however, did grant the motion to sever. In an order dated October 8, 2002, the trial court created the "B" and "C" cases for the claims against Hamilton and the intentional infliction of emotional distress claims, respectively. Only the claims against the lawyer defendants remained in the "A" case. Loveday filed an amended notice of appeal, noting the order of severance and reiterating her appeal of the "A" case claims against the lawyer defendants.

While Loveday's appeal was pending, on December 31, 2002, the trial court appointed Robert S. McEntyre, Jr. as permanent guardian of Archer's estate.

Failure to Issue Findings of Fact and Conclusions of Law

Loveday argues that the trial court had a duty to file findings of fact and conclusions of law and that she was harmed by the court's failure to do so because she had to guess the legal basis for the trial court's ruling. We disagree. A trial court does not err when it fails to issue findings of fact and conclusions of law in a proceeding in which there are no factual disputes to resolve and the legal conclusions have already been stated in the motions. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441-42 (Tex. 1997)

. For example, in a proceeding in which the trial court dismissed the case for lack of jurisdiction based on the pleadings and counsel's argument rather than sworn testimony, findings of fact and conclusions of law would serve no purpose. See Awde v. Dabeit, 938 S.W.2d 31, 33 (Tex. 1997). As in Adwe, here, the lawyer defendants' motions were based on legal grounds: lack of capacity and standing, and the trial court in this case dismissed Loveday's claims based on the orders, pleadings, and the other documents in the record.⁷ Therefore, the trial court did not err in failing to issue findings of fact and conclusions of law because this was a proceeding in which findings and conclusions would have served no purpose.

Loveday's Ability to Bring Suit

A. A Guardian's Failure or Refusal to Act?

Loveday alleged in her petition that she has standing to bring the lawsuit on...