in the Matter of the Guardianship of Carlos Y. Benavides, Jr.
2013 Tex. App. LEXIS 2458
| Tex. App. | 2013Background
- Appellees sought temporary and permanent guardianship over Carlos Y. Benavides, Jr. in Webb County in Sept. 2011; a court-appointed ad litem represented Benavides’ interests.
- Leticia Benavides, represented by attorney Zaffirini, moved to dismiss and contest the applications and demanded a jury.
- Benavides, represented by Leshin, also moved to dismiss and demanded a jury.
- On Oct. 3, 2011, appellees filed a Rule 12 motion to show authority alleging Benavides lacked capacity to hire Leshin.
- On Oct. 14, 2011, the court appointed a temporary guardian over Benavides’ person and estate.
- In May 2012, after a hearing on Rule 12, the court found Leshin had no authority to represent Benavides and struck his pleadings; the order was appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 12 may resolve authority despite capacity issues. | Benavides’ capacity issue is a jury issue under probate law. | Rule 12 determines authority pre-trial; capacity may not bind the ruling on authority. | Yes; Rule 12 authority determined; capacity issues do not bar authority ruling. |
| Whether appellees had authority to file the Rule 12 motion. | Appellees may challenge authority of opposing counsel. | Rule 12 permits either party to challenge authority of counsel. | Appellees had authority to file Rule 12 motion. |
| Whether the trial court properly found Leshin had no authority to represent Benavides. | Leshin’s testimony and Benavides’ affidavit showed authority. | Evidence showed Benavides lacked capacity to contract for legal services. | Court did not abuse its discretion; no authority found for Leshin. |
| Whether the court’s Rule 12 ruling was a final, appealable order. | The Rule 12 order was final and appealable as it disposed of discrete issues. | ||
| Whether the evidence supported a finding of lack of capacity to hire an attorney in 2011. | Benavides had capacity to hire Leshin in Sept./Oct. 2011. | Experts showed Benavides lacked capacity to contract for legal services. | Evidence supported lack of capacity; trial court could so find. |
Key Cases Cited
- Miller v. Stout, 706 S.W.2d 785 (Tex. App.—San Antonio 1986) (ultimate issues must be submitted to a jury; Rule 12 non-ultimate issues)
- Smith v. Smith, 339 S.W.3d 756 (Tex. App.—Dallas 2011) (burden on challenged attorney; abuse of discretion standard)
- Boudreau v. Fed. Trust Bank, 115 S.W.3d 740 (Tex. App.—Dallas 2003) (Rule 12 burden-shifting and evidence weighing)
- Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986) (abuse of discretion standard for Rule 12 rulings)
- Logan v. McDaniel, 21 S.W.3d 683 (Tex. App.—Austin 2000) (Rule 12 finality in guardianship where issues resolved)
- Spigener v. Wallis, 80 S.W.3d 174 (Tex. App.—Waco 2002) (pre-amendment; limited to defendant-counsel challenges)
- De Ayala v. Mackie, 193 S.W.3d 575 (Tex. 2006) (probate/guardianship appellate practice; discrete judgments)
- Phillips v. Phillips, 244 S.W.3d 433 (Tex. App.—Houston [1st Dist.] 2007) (amended Rule 12 allowing non-defendants to challenge authority)
- Gulf Reg’l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803 (Tex. App.—Houston [14th Dist.] 1988) (Rule 12 authority of plaintiff after amendment)