Rasco, In re, 19198
| Decision Date | 23 May 1977 |
| Docket Number | No. 19198,19198 |
| Parties | In re Nita Lee Garvin RASCO, Incompetent. |
| Court | Texas Court of Appeals |
G. Dennis Sullivan, Woodburn & Sullivan, Dallas, for appellant.
Robert C. McGuire, Ungerman, Hill, Ungerman, Angrist, Dolginoff, Teofan & Vickers, Dallas, for appellee.
Lawyers Surety Corporation has appealed from a judgment entered against it as surety in the final accounting of a guardianship proceeding. Lawyers Surety claims that the probate court erred in precluding it from calling or examining witnesses. Alternatively, Lawyers Surety asserts that there is insufficient evidence to support the probate court judgment. We hold that the trial court erred in precluding the surety's participation as a party to the guardianship proceeding and, accordingly, reverse and remand with instructions to hear evidence presented by appellant regarding the accuracy of the final account.
On May 1, 1973, Thomas K. Rasco applied for appointment as guardian of the person and estate of his mother, Nita Lee Garvin Rasco. The application was granted, and Lawyers Surety was approved as surety. Subsequently, Thomas Rasco was removed as guardian of his mother's estate for various derelictions of guardianship duties and failures to comply with court orders. James J. Hartnett, appellee herein, was then appointed successor guardian and filed a final accounting on behalf of the former guardian. On October 19, 1976, the probate court held a hearing on the final account. However, at that hearing the court heard no testimony regarding the accuracy of the final account; rather it only considered the final account itself, certain stipulations by the former guardian, and arguments of counsel. The successor guardian also requested compensation for his services and stated what he considered to be a reasonable fee. Although Lawyers Surety requested the opportunity to call and examine witnesses regarding the accuracy of the account, the request was not ruled on at that time. Prior to the entry of judgment, the surety filed a motion for rehearing, which formally requested reopening the case for the purpose of allowing a complete investigation into the accuracy of the final account. This motion was overruled, and the court entered a deficiency judgment against both the former guardian and his surety, together with interest and attorney's fees.
Lawyers Surety asserts that the probate court erred in refusing to reopen the case for the purpose of such a hearing. In so contending, it argues that it is an "interested person" within the meaning of the Probate Code and that the probate court was obliged to hold an evidentiary hearing in which all interested parties could present evidence supporting or disputing the accuracy of the account. We hold that Lawyers Surety was an interested party and had standing to present evidence disputing the accuracy of the account.
The controlling statutory provisions are Texas Probate Code Annotated, sections 407 (Vernon Supp.1976) and 408(a) (Vernon 1956). Section 407 provides:
Upon the filing of an account for final settlement by temporary or permanent personal representatives of the estates of decedents or wards, or of the persons of wards, citation shall contain a statement that such final account has been filed, the time and place when it will be considered by the court, and a statement requiring the person or persons cited to appear and contest the same if they see proper. Such citation shall be issued by the county clerk to the persons and in the manner set out below.
Section 408(a) provides:
Action Upon Account. Upon being satisfied that citation has been duly served upon all persons interested in the estate, the court shall examine the account for final settlement and the vouchers accompanying the same, and, after hearing all exceptions or objections thereto, and evidence in support of or against such account, shall audit and settle the same, and restate it if that be necessary. (Emphasis added.)
As surety, appellant was an "interested person" entitled to participate under section 408(a). Any deficiency judgment entered against the former guardian is conclusive against both the guardian and the surety, whether or not the surety formally participates. Williamson v. Bowman, 98 S.W.2d 449, 451 (Tex.Civ.App.-Texarkana 1936, writ ref'd); Whitfield v. Burrell, 54 Tex.Civ.App. 567, 118 S.W. 153, 157 (1909); Bopp v. Hansford, 18 Tex.Civ.App. 340, 45 S.W. 744 (1898). Obviously, if a surety is to be bound by any judgment entered against the former guardian, it must be given the right to...
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