In re Guardianship of Erickson

• Decision Date: 29 November 2006
• Docket Number: No. 06-05-00129-CV.,06-05-00129-CV.
• Citation: In re Guardianship of Erickson, 208 S.W.3d 737 (Tex. App. 2006)
• Parties: In the GUARDIANSHIP OF Betty Joann ERICKSON, an Incapacitated Person.
• Court: Texas Court of Appeals

Page 737

208 S.W.3d 737

In the GUARDIANSHIP OF Betty Joann ERICKSON, an Incapacitated Person.

No. 06-05-00129-CV.

Court of Appeals of Texas, Texarkana.

Submitted July 26, 2006.

Decided November 29, 2006.

COPYRIGHT MATERIAL OMITTED

M. Keith Dollahite, M. Keith Dollahite, PC, Kenneth E. Raney, Thigpen & Raney, PC, Tyler, Todd Tefteller, Tefteller & Pelaia, Gilmer, for appellant.

Robert D. Bennett, Allen S. Reaves, Robert D. Bennett & Associates, PC, Gilmer, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Betty Joann Erickson (Betty) was, by all accounts, a friendly, deeply religious, and stubborn woman. Some time after her husband's death in 2002, Betty's mental capacities began to diminish with the onset of senility, though she still valued her independence. She still maintained an office at the million-dollar business she owned, though she let other people run the business. In August 2005, Betty left her office to go to a feed store. She was missing for the next thirty hours, apparently driving around East Texas before returning home confused and exhausted.

Betty's two sons, both of whom live out of state, applied to have a temporary guardian appointed for Betty. One son, Jim, was deemed ineligible to serve as Betty's guardian. On August 25, 2005, the other son, David Capps (David), was appointed Betty's temporary guardian. Challenging David for both temporary and permanent guardianship were Betty's long-time friend Victor Stolley (Stolley) and a young man who had become close to Betty since her husband's death—Betty's then-twenty-four-year-old employee, Matthew Armstrong (Armstrong).

At the conclusion of a two-day hearing, the court appointed Stolley as Betty's permanent guardian. The court later entered an explicit finding that David had cruelly "and/or negligently" treated Betty and ordered his removal as her temporary guardian. David raises two issues on appeal: (1) the legal and factual sufficiency of evidence of cruel/neglectful treatment supporting the removal of the temporary guardian of the person and the estate, and (2) the court's premature appointment of Stolley as permanent guardian of the person.¹ We find that the trial court did not have jurisdiction to appoint the permanent guardian and, therefore, that appointment is void. We further find that the removal of the temporary guardian was within the trial court's discretion.

Appointment of Permanent Guardian

The qualification of a properly appointed permanent guardian terminates a temporary guardianship. See Blackburn v. Gantt, 561 S.W.2d 269, 272 (Tex.Civ. App.-Houston [1st Dist.] 1978, no writ). If Stolley was properly appointed, David's first issue (the improper removal of the temporary guardian) is moot. See In re Guardianship of Berry, 105 S.W.3d 665, 666 (Tex.App.-Beaumont 2003, no pet.); Douglas v. Proctor, 559 S.W.2d 912, 913 (Tex.Civ.App.-Waco 1977, no writ). We, therefore, address David's second issue first: was the permanent guardian properly appointed? David contends the appointment of the permanent guardian of the person is void because (1) under Section 633(f) of the Texas Probate Code, the trial court was not allowed to appoint any permanent guardian until October 3, 2005, and (2) the trial court denied due process by ruling on applications and motions for permanent guardian not yet set for hearing.

A judgment is void when the trial court rendering it has no jurisdiction over the parties or subject matter. See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987); In re Guardianship of B.A.G., 794 S.W.2d 510, 511 (Tex.App.-Corpus Christi 1990, no writ); Wilkinson v. Owens, 72 S.W.2d 330, 335 (Tex.Civ.App.-Texarkana 1932, no writ). "[A] void judgment is one entirely null within itself, and which is not susceptible of ratification or confirmation, and its nullity cannot be waived." Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (1932); accord B.A.G., 794 S.W.2d at 511; Wilkinson, 72 S.W.2d at 335. A trial court's subject-matter jurisdiction is a question of law an appellate court reviews de novo by examining the pleadings and any other evidence relevant to the determination. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The Texas Probate Code confers jurisdiction on county courts to appoint guardians for incapacitated persons. TEX. PROB.CODE ANN. § 605 (Vernon 2003); see also TEX. PROB.CODE ANN. §§ 606, 677(a) (Vernon Supp.2006). As to the procedure in creating a permanent guardianship, the Probate Code provides:

The court may not act on an application for the creation of a guardianship until the Monday following the expiration of the 10-day period beginning the date service of notice and citation has been made as provided by Subsections (b), (c), and (d)(1) of this section and the applicant has complied with Subsection (d-1) of this section.

TEX. PROB.CODE ANN. § 633(f) (Vernon Supp.2006). Section 633 does not set out optional procedures; only through compliance with Section 633 of the Texas Probate Code is the trial court's jurisdiction invoked. See B.A.G., 794 S.W.2d at 512-13 (as to then Section 130E of the Texas Probate Code, now recodified at TEX. PROB. CODE ANN. § 633 (Vernon Supp 2006)); Wilkinson, 72 S.W.2d at 334-35; Threatt v. Johnson, 156 S.W. 1137, 1139 (Tex.Civ. App.-Texarkana 1913, no writ); accord TEX. PROB.CODE ANN. § 684(c) (Vernon 2003) ("court may not grant an application to create a guardianship unless the applicant proves each element required by this code").

Stolley and Armstrong filed and served their permanent guardian application September 19, 2005. The court could not under Section 633(f), act on that application until October 3, 2005, which was the Monday following the expiration of the ten-day period after service. However, the court held the hearing September 28, 2005. The court rendered judgment in open court, as required under TEX. PROB. CODE ANN. § 650 (Vernon 2003), on September 29, 2005. The court stated in open court that "Stolley is named the permanent guardian of the estate" and then clarified "[t]he person and estate." On October 3, 2005, the court signed a written order regarding its earlier judgment. For purposes of our analysis, we note that judgment in this case was rendered by the court's oral pronouncement of judgment in open court September 29, not by the later written order. See In re Marriage of Joyner, 196 S.W.3d 883, 886-87 (Tex.App.-Texarkana 2006, pet. filed) (written judgment subsequent to oral one in open court is "purely a ministerial act"); see also In re Guardianship of Schellenberg, 694 S.W.2d 50, 52 (Tex.App.-Corpus Christi 1985, no writ).

We find the actions from September 28 to September 29 "too early to confer on the trial court jurisdiction" to order the permanent appointment. See In re Estate of Bean, 120 S.W.3d 914, 919 (Tex. App.-Texarkana 2003, pet. denied); accord Wilkinson, 72 S.W.2d at 334. Almost 100 years ago, this Court stated of the guardianship jurisdictional requirements: "compliance with the statute is a condition precedent to the valid exercise of the power, and is jurisdictional." Threatt, 156 S.W. at 1139. Any attempt by the trial court to exercise the special power of appointment of a guardian without compliance with express statutory jurisdictional provisions is a nullity. Id.

Stolley asserts that the invited error doctrine prohibits David's complaint on appeal. See Ne. Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942). Stolley contends David waived any objection to the hearing of all motions on appointment of a permanent guardian on September 28 because David had the matter set for hearing. Stolley further contends that, throughout the two-day hearing, the trial court heard testimony regarding Stolley's or Armstrong's qualifications as a guardian so as to put all parties on notice of the appointment sought. We are not persuaded by Stolley's contentions.

The court had initially set hearings for September 26 and 28 on the following motions: (1) Armstrong's "Motion to Estop David Capps From Preventing Betty Joann Erickson From Attending Church"; (2) Armstrong's motion for emergency hearing to change the temporary guardian of Betty; (3) David's motion to modify agreed order (to show cause why Armstrong should not be fired, and to compel Armstrong's production of Betty's business books and records); and (4) David's motion to show cause why Armstrong and his wife, Leslie, should not be removed from the residence and property of Betty. As indicated in a letter by David's attorney, the hearings on these motions were apparently consolidated to be heard September 28. That letter stated: "This letter is to confirm with everybody that the hearing on the various motions, applications, counter-motions and counter-applications which are presently on file will be heard by the Court on Wednesday, September 28, 2005. . . ."

Stolley asserts this letter set for hearing the following additional applications, which were not previously set: (1) David's application and first amended application for appointment of permanent guardian; (2) Armstrong's application for appointment of permanent guardian of the person and estate; and (3) Armstrong and Stolley's first amended and alternative application for appointment of permanent guardian of the person and estate.

Section 635 of the Texas Probate Code provides that a "competent person who is interested in a hearing in a guardianship proceeding, in person or by attorney, may waive in writing notice of the hearing. . . . A person who submits to the jurisdiction of the court in a hearing is deemed to have waived notice of the hearing." TEX. PROB. CODE ANN. § 635 (Vernon 2003). It is undisputed that all interested parties were present at the September 28 hearing. However, since guardianship entails ongoing proceedings in courts sitting in probate, the parties' presence on one matter may not necessarily...