In re Guardianship of Miller

• Decision Date: 07 October 2009
• Docket Number: No. 05-08-00627-CV.,05-08-00627-CV.
• Citation: 299 S.W.3d 179
• Parties: In re the GUARDIANSHIP OF James Stephen MILLER III, an Alleged Incapacitated Person.
• Court: Texas Court of Appeals

299 S.W.3d 179

In re the GUARDIANSHIP OF James Stephen MILLER III, an Alleged Incapacitated Person.

No. 05-08-00627-CV.

Court of Appeal of Texas, Dallas.

October 7, 2009.

Ronald D. Gray, Geary Porter & Donovan, P.C., Addison, TX, for appellant.

John R. Norris, III, Calloway, Norris, Burdette, & Weber, Lawrence J. Friedman, Friedman & Feiger, L.L.P., Dallas, TX, for appellee.

Before the Court en banc.

OPINION

Opinion By Justice WRIGHT.

Shelly Miller Goolsby and James Stephen Miller III appeal the probate judge's order finding Goolsby lacks standing in this guardianship proceeding. In three issues, Goolsby and Miller contend the probate judge erred by determining Goolsby lacked standing to participate in the guardianship proceeding. We agree with Goolsby that the probate judge erred by determining she lacked standing, render judgment denying the motion in limine with respect to Goolsby, and strike that portion of the probate judge's order precluding Goolsby from participating in this guardianship proceeding as described in parts (1), (2), (3), and (4) of section 642(b) of the Texas Probate Code.¹

Procedural Background

In 2007, Miller filed a petition for divorce against his wife Carol Browning Duffey-Miller (Duffey). She responded by filing an answer and various motions regarding Miller's mental capacity. The family court appointed John Norris as amicus attorney regarding the issue of Miller's mental capacity. Thereafter, Norris filed an application in the probate court seeking the appointment of a permanent guardian of the person and estate of Miller. Norris asserted Miller was partially incapacitated due to dementia caused by Alzheimer's disease and was unable to care for himself or manage his financial affairs. Norris did not seek appointment of a particular guardian in his application, but attached a "Declaration of Guardian in the Event of Later Incompetence or Need of Guardian" submitted by Miller. In that document, Miller designated Goolsby, his daughter, to serve as guardian of his person and estate; his son, John Barton Miller (Bart Miller), as first alternate guardian; and his son-in-law, Chris Goolsby, as second alternate guardian.

Miller, Goolsby, and Duffey filed answers to Norris's application. Both Miller and Goolsby asserted Miller was competent and did not need a guardian, but if the probate judge determined he was incapacitated and a guardian was necessary, Goolsby should be appointed. Miller further sought to have Duffey disqualified from serving as his guardian. Goolsby also requested that, in the event the probate judge determined Miller was "partially incapacitated," the probate judge should consider appointing an "attorney ad litem in this matter." Contrary to these assertions, Duffey claimed Miller was incompetent and his declaration was invalid, and sought appointment as Miller's permanent guardian. On December 26, 2007, Miller filed a motion in limine challenging Duffey's standing to commence or contest the proceeding. Thereafter, on January 4 2008, Goolsby likewise filed a motion in limine, challenging both Duffey's standing to commence or contest the guardianship proceeding and Duffey's qualifications to be appointed guardian. Finally, on January 11, 2008, Duffey filed a motion in limine challenging Goolsby's, Bart Miller's, and Chris Goolsby's standing and qualifications.

The probate judge conducted a hearing on the motions in limine. During the hearing, the probate judge stated that the parties were "characterizing this pleading as a motion in limine when it's really a motion to decide the facts of the case," and "I'm probably going to be dealing with the big picture." As a result, the probate judge had Miller brought to the courtroom so that the probate judge could personally question Miller. After doing so, the probate judge stated, "I don't think that we're eventually going to be appointing a guardian for Mr. Miller. I haven't seen a strong need for a guardian." Instead, the probate judge appointed an attorney ad litem and determined the probate judge would go forward with the application for guardianship if the attorney ad litem advanced the issue and suggested a guardian. Thereafter, the probate judge told the parties, "At the most, I am going to appoint a guardian for the very limited purpose of making the decisions which Mr. Miller has to make in the divorce."

Following the hearing, the probate judge signed his January 22, 2008 order granting the motions in limine regarding Duffey and Goolsby and stating they could not: (1) file an application to create a guardianship for Miller, (2) contest the creation of a guardianship for Miller, (3) contest the appointment of a person as a guardian of the person or estate, or both, of Miller, or (4) contest the application for complete restoration of Miller's capacity or modification of his guardianship. In its order, the probate judge also appointed Norris as Miller's attorney ad litem. Norris accepted his appointment as attorney ad litem on February 4, 2008.

Eleven days later, on February 15, 2008, the probate judge signed the following order:

This matter having come before the court, and the court having heard evidence and argument:

It is the finding of the court that JAMES STEPHEN MILLER III has sufficient mental capacity to formulate a rational desire to obtain a divorce, and to make decisions relating to a divorce action, and that it is neither necessary nor appropriate to appoint a guardian in this cause;

It is Ordered that this Cause is ABATED, and this Cause is hereby reassigned to the Inactive Docket of the Court.

This appeal followed.²

Jurisdiction

We begin with a determination regarding whether we have jurisdiction over this appeal. Generally, a party may only appeal from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Similarly, except when "specifically provided by law," there may be but "one final judgment" rendered in any cause. TEX.R.CIV. P. 301. Consistent with these principles, the Texas Probate Code provides that "[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals." TEX. PROB.CODE ANN. § 5(g) (Vernon Supp. 2008). The probate code specifies that some orders are final and appealable, for example, a judgment that determines heirship. See TEX. PROB.CODE ANN. § 55(a) (Vernon 2003). But, this section of the probate code does not otherwise make any distinction between a final, appealable order under the probate code and any other judgment that is final for purposes of appeal.

There are, however, some unique rules regarding judgment finality that may apply to matters governed by the probate code. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006). These exceptions to the one-judgment rule are necessary because of the need to "review controlling, intermediate decisions before an error can harm later phases of the proceeding." Id. In such cases, "multiple judgments final for purposes of appeal can be rendered on certain discrete issues." Id. Both the substantial right test and the requirement outlined in Crowson v. Wakeham, 897 S.W.2d 779 (Tex.1995), that the order dispose of all issues in the "phase of the proceeding" for which it was brought, may be used to determine whether an "ostensibly interlocutory probate order has sufficient attributes of finality" to confer appellate jurisdiction. See De Ayala, 193 S.W.3d at 578. However, there is no need to resort to the unique probate rules used to determine whether a seemingly interlocutory order is appealable if the order is otherwise final. Cf. In re Guardianship of Moon, 216 S.W.3d 506, 509 (Tex.App.-Tex-arkana 2007, no pet.) (declining to discuss unique probate rules where guardianship matter became final after guardianship had been closed). Such an order is expressly appealable under section 5(g) of the probate code. TEX. PROB.CODE ANN. § 5(g). That is the situation presented in this case.

A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Lehmann, 39 S.W.3d at 195. A final judgment need not be in any particular form; finality is determined from its language and the record in the case. Id. A judgment that finally disposes of all parties and claims is final, regardless of its language. Id. And, the language of an order can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. If final disposition of the case is unequivocally expressed in the words of the order itself, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. at 200. Once the trial court disposes of all parties and claims, the trial court's preceding interlocutory judgments and orders are merged into the final judgment whether or not the interlocutory judgments or orders are specifically named within the final judgment. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972); Campbell v. Kosarek, 44 S.W.3d 647, 650 (Tex.App.-Dallas 2001, pet. denied); Columbia Rio Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 391 (Tex.App.-Corpus Christi 2000, no pet.). When determining whether an order is final, we consider the entire record in the case. See Lehmann, 39 S.W.3d at 195. We conduct a de novo review to determine finality because jurisdiction is a legal question. IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex.App.-Dallas 2005, no pet.).

In this case, the probate judge's order on the motion in limine left a single issue to be determined: whether a guardianship should be instituted, and if so, who should be appointed as guardian. The probate judge's February 15th order determining "it is neither necessary nor appropriate to appoint a guardian in this cause" fully resolved that issue.

The only purpose of a guardianship proceeding is to appoint a guardian with either full or limited authority over an...