in Re Guardianship of Terry L. Gilmer, an Incapacitated Person
04-14-00362-CV
| Tex. App. | Jan 20, 2015Background
- Appellants Daniel and Sharlene Gilmer filed to appoint a guardian for their mother, Mrs. Nana Seeley Gilmer, alleging she needs care and is subject to undue influence.
- The trial court granted the ad litem’s motion in limine and concluded Dan and Sharlene had an "interest adverse" to the proposed ward, effectively barring them from pursuing the guardianship application.
- The trial court relied in part on materials from the parents’ pending divorce (including a notice of lis pendens) and on communications showing Dan and Sharlene’s emotional frustration with their mother.
- Appellants contend their statements reflect concern for their mother, not an adverse legal interest; they assert they sought appointment of a neutral third-party guardian to protect Mrs. Gilmer and her assets from undue influence.
- Appellants also argue any possible connection to the Gilmers’ divorce (e.g., a now-expunged lis pendens) did not create an adverse interest by Dan or Sharlene, and that the court erred by taking judicial notice of divorce proceedings from another case.
Issues
| Issue | Appellants' Argument | Ad Litem / Trial Court's Argument | Held (trial court) |
|---|---|---|---|
| Whether expressions of frustration and emotional statements by Dan and Sharlene constitute an "interest adverse" under Tex. Estates Code §1055.001 | Emotional frustration is not a legal "interest" that forecloses standing; statements show concern, not a claim against the ward | Statements show bias/frustration and therefore an adverse interest that precludes standing | Trial court: found Dan and Sharlene had an adverse interest and barred them from proceeding |
| Whether contingent beneficiary status under the trust creates an adverse interest | Appellants lack control of the trust and are only contingent beneficiaries; no direct legal ability to divert trust assets | Ad litem suggested potential financial stake could be adverse | Trial court: treated the trust/financial context as supporting adverse interest finding |
| Whether involvement or filings in the parents’ divorce (e.g., lis pendens) made Dan a party with an adverse interest | Divorce disputes were between spouses, not Dan; the lis pendens was expunged; Dan has no claims against his mother | Ad litem relied on divorce filings and related communications to show adverse interest | Trial court: considered the divorce filings in finding an adverse interest |
| Whether the trial court properly took judicial notice of the divorce file and relied on it | Appellants: court lacked authority to judicially notice a separate case that involves different parties/issues and failed to notify parties as required | Ad litem relied on those records as relevant background | Trial court: took judicial notice and relied on divorce materials in its order |
Key Cases Cited
- Allison v. Walvoord, 819 S.W.2d 624 (Tex. App.—El Paso 1991) (plaintiffs suing proposed ward lacked standing to contest guardianship)
- In re Guardianship of Miller, 299 S.W.3d 179 (Tex. App.—Dallas 2009) (discussing when debts or disputes affect participation in guardianship)
- In re C.L., 304 S.W.3d 512 (Tex. App.—Waco 2009) (trial court must notify parties when taking judicial notice of another proceeding)
- Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) (divorce proceedings focus on division of community property)
- USLIFE Title Ins. Co. v. Howard, 603 S.W.2d 322 (Tex. Civ. App.—Amarillo 1980) (limits on taking judicial notice of another case's files)
- McCurry v. Aetna Cas. & Sur. Co., 742 S.W.2d 863 (Tex. App.—Corpus Christi 1987) (standards for judicial notice of other litigation files)