*1 in The filed a motion limine to State testimony concerning the divorce In re the
exclude GUARDIANSHIP OF James Stephen III, Ponce and A.S.’s pending Alleged action between MILLER During the cross-examination mother. Incapacitated Person. mother, Ponce’s trial counsel at-
A.S.’s No. 05-08-00627-CV. mother tempted impeach A.S.’s property that she had a interest grounds Texas, Appeals Court in the outcome of the criminal trial due to Dallas. proceedings. of the divorce pendency objected, and the trial court State Oct. admonished trial counsel at the bench and hearing jury of the not to fur- out in
ther violate the motion limine. At the testimony,
conclusion of A.S.’s mother’s perfected
both the State and Ponce bills of
exception. issue, argues
In his third Ponce perfected
that trial counsel a deficient bill by only addressing
of review A.S.’s moth history any possible ex
er’s criminal addressing
tramarital affairs and not alleges
divorce action. Ponce that he was
harmed because trial counsel failed to de
velop testimony that show bias. would support record does not Ponce’s
contentions that trial counsel’s fell actions Nothing
below a reasonable standard.
the record reflects what AS.’s mother’s
testimony concerning would have been already
divorce action. She had testified jury proper-
before the that she did have a
ty interest the outcome of the trial.
The record does not support argu- Ponce’s that,
ment but for the bill of review that perfected,
trial there counsel would have probability
been reasonable of a different
outcome. The third issue is overruled. Ponce, requested by reaching
As our case,
decision we have not consid-
ered evidence that was not admitted
trial court. affirm the We
trial court. *3 permanent & Dono- Geary Porter Gray, D.
Ronald Norris Addison, TX, estate of Miller. P.C., appellant. van, incapacitated partially Miller was asserted Norris, Norris, III, Calloway, R. John by Alzheimer’s to dementia caused due Weber, Burdette, Lawrence J. Fried- & to care for himself disease and was unable L.L.P., Dallas, man, Feiger, & Friedman did financial affairs. Norris manage TX, appellee. particular appointment of not seek but attached application, in his Event of of Guardian “Declaration *4 OPINION Incompetence or Need of Guardian” Later document, Miller. In that by submitted By Justice WRIGHT. Opinion daughter, to Goolsby, his designated Miller and James Ste- Goolsby Shelly Miller estate; of his and serve as judge’s probate III Miller phen (Bart Miller), son, Barton Miller his John Goolsby standing finding lacks order and his son-in- guardian; as first alternate three is- proceeding. In guardianship law, alternate Goolsby, as second Chris pro- sues, Miller contend the Goolsby and guardian. determining Goolsby by erred judge bate in the standing participate lacked Miller, Duffey filed an- Goolsby, and with agree proceeding. We guardianship Both Miller application. swers to Norris’s by erred probate judge Goolsby that compe- Miller was Goolsby asserted and standing, render determining she lacked if the guardian, not need a tent and did motion in limine denying the incapaci- he was probate judge determined Goolsby, and strike respect necessary, Gools- tated and a pre- probate judge’s portion of be Miller further by appointed. should in this cluding Goolsby participating from from Duffey disqualified sought to have proceeding as described guardianship Goolsby also re- guardian. his serving as 642(b) (1), (2), (3), and of section parts that, in the event quested of the Texas Probate Code.1 “partially in- judge determined Miller was should Background probate judge capacitated,” Procedural “attorney ad litem appointing consider an 2007, for di- petition Miller filed a asser- Contrary to these this matter.” Browning against vorce his wife Carol tions, incompe- Duffey claimed Miller was (Duffey). responded Duffey-Miller She invalid, and tent and his declaration was re- an and various motions filing answer permanent as Miller’s sought appointment capacity. Miller’s mental garding 26, 2007, Miller On December guardian. Norris as ami- family appointed court John challenging a motion in limine Duf- filed Miller’s attorney regarding the issue of cus or contest the fey’s standing to commence Thereafter, Norris filed capacity. mental 4, Thereafter, January on seeking proceeding. court appointment proceeding provides of the code 1. Section 642 pro- interest to the particular person an adverse as absent of a Tex. Prob. incapacitated person, any per- posed (Vernon 2003). ward or A motion Code Ann. 642 guardian- standing any has to commence son challenge person's stand- limine is used to including ship proceeding, restoration ing or contest to commence a ward’s capacity ward’s or modification of proceeding. Id. any appear guardianship, or to and contest filed a motion in contest the application likewise limine, Duffey’s challenging standing complete both restoration of Miller’s capacity or the guardianship commence or contest modification of guardianship. his In its qualifications to Duffey’s order, and proceeding also judge Finally, appointed guardian. on Janu- Norris as attorney Miller’s ad litem. Nor- Duffey filed motion in ary accepted ris Miller’s, Goolsby’s, Bart challenging
limine litem February ad on Goolsby’s standing qualifica- Chris later, 15, 2008, days Eleven on tions. probate judge signed the following or- judge hearing conducted der: During motions limine. having This matter come before the hearing, probate judge stated that the court, and the having court heard evi- “characterizing this pleading were dence argument: really a motion in limine when it’s It is the finding ease,” motion to decide the facts *5 JAMES MILLER STEPHEN III has probably going dealing “I’m to be with the capacity sufficient mental to formulate a result, picture.” probate As a big divorce, rational a desire to obtain and judge brought had Miller to the courtroom relating make decisions to a divorce probate judge personally that the could so action, is necessary and that it neither so, doing Miller. question pro- After appropriate appoint nor a guardian stated, judge “I think that bate don’t we’re cause; eventually going appointing guard- to be a It that Ordered this Cause is for Mr. I seen strong ian Miller. haven’t a ABATED, hereby and this Cause is Instead, guardian.” pro- need for a reassigned to the Inactive Docket of the judge appointed bate an ad litem Court. judge the probate and determined would appeal This guard- forward with the for followed.2 go application ianship if the litem attorney ad advanced Jurisdiction a suggested
the issue and Thereafter, probate told the judge par- begin We determination ties, most, going appoint “At the I am regarding jurisdiction whether we have very purpose for the limited of appeal. Generally, party may over this making the which Mr. decisions Miller has only appeal judgment. from a final Leh to make the divorce.” v. Corp., mann 39 S.W.3d Har-Con (Tex.2001).
Following hearing, Similarly, when except law,” signed January by judge “specifically provided may 2008 order there granting regarding judgment” the motions in limine but “one final be rendered Duffey stating they any and cause. Tex.R. P. 301. could Consistent Civ. (1) file an principles, not: create a with these Texas Probate Miller, provides for “[a]ll contest the Code that final orders of Miller, any original juris a guardianship exercising creation of person appealable contest as a diction shall be to the courts of estate, both, appeals.” § of the 5(g) Tex. Prob.Code Ann. 00448-CV, (Tex. Duffey appealed. appeal 2. also WL at *1 That was dis 18, 2008, (mem. pursuant agreement. App.-Dallas Aug. pet.) missed to a settlement Guardianship op.). In re See No. 05-08- of 2008). purposes A is final for (Vernon judgment code Supp. pending par if it all disposes of of orders are final that some specifies Lehmann, at claims. ties and judgment that example, appealable, any not judgment A final need heirship. determines Tex. Prob.Code form; finality is determined particular 2003). But, 55(a) (Vernon this sec Ann. the record in the language its from code does not otherwise tion finally dispos judgment case. Id. A final, ap- between any make distinction final, regard parties of all and claims es probate code and under the pealable order .And, the lan language. of its Id. less pur that is final for any other final, make it even of an order can guage poses appeal. if interlocutory, have been though should all expressly disposes language are, however, unique some There dispo If final parties. claims and all Id. finality may regarding judgment rules unequivocally ex of the case is sition governed to matters apply itself, of the order pressed words Mackie, 193 S.W.3d Ayala De code. appealable, final and even then the order is (Tex.2006). exceptions These though provide the record does necessary be one-judgment rule are judgment. adequate basis for rendition controlling, “review of the need to cause disposes trial court Id. at 200. Once the an error can before intermediate decisions claims, the trial court’s all proceeding.” Id. phases harm later or interlocutory judgments and preceding cases, judgments final “multiple In such *6 merged judgment into the final ders are be purposes can rendered interlocutory judg or not whether Id. Both the discrete issues.” certain specifically are named ments or orders requirement right test and substantial Jorns, judgment. within the final Webb v. Wakeham, v. 897 outlined in Crowson 407, (Tex.1972); Campbell 409 488 S.W.2d (Tex.1995), the order dis 779 S.W.2d Kosarek, 647, (Tex.App. v. 44 S.W.3d 650 “phase all issues in the pose of 2001, denied); pet. Rio -Dallas Columbia brought, may which it was proceeding” for Stover, 17 S.W.3d Reg’l Hosp. Grande whether an “ostensi be to determine used 2000, 387, no (Tex.App.-Corpus 391 Christi suffi bly interlocutory probate order has determining whether an or pet.). When finality” appel to confer final, cient attributes of we consider the entire record der is Lehmann, 193 jurisdiction. Ayala, late See De at in the case. See 39 S.W.3d novo review to there is no need 195. We conduct a de S.W.3d at 578. jurisdiction is a finality because rules used determine unique probate to resort to the Group, Inc. v. legal question. IFS Sec. a interloc seemingly to determine whether Co., Equity Am. Ins. appealable if the order is utory order is pet.). no (Tex.App.-Dallas Guardianship final. In re otherwise Cf. Moon, (Tex.App.-Tex case, judge’s order In this (declining to discuss pet.) arkana single a issue on the motion in limine left guardianship rules where unique probate a guardianship whether to be determined: so, matter became final after instituted, if who should should be closed). had been Such an order is ex The guardian. pressly 5(g) determining section appealable February under 15th order judge’s necessary appropriate nor code. “it is neither Tex. Ann. Prob.Code fully in this cause” appoint guardian § a 5(g). presented That is the situation resolved issue. this case. only purpose guardianship pro- language expressly disposes of a of all claims
ceeding appoint guardian parties. though may is to with ei- and all Even have authority full limited over an inca- been error for the probate judge ther to make pacitated person. See his determination regarding the need for Tex. Ann. Prob.Code 2003). (Vernon A is in this without pro- case further (an necessary appropriate nor when a ceedings appeal), neither issue not raised on person competent. interlocutory merely is found to be If the the order is not be- judge had found Miller to be inca- cause the an adequate record fails show appropriate course of action pacitated, legal disposition. basis for See id at appoint would have been to 205-06. authority
with full or limited
over him.
conclusion,
In reaching this
we are
did not. A
probate judge
See id
probate judge
mindful that
failed to
no guardian
conclusion that
is needed is a
rule on Duffey’s motion in limine directed
proposed
that the
ward has
determination
Goolsby.
at Bart Miller and
Howev-
Chris
to care for
capacity
sufficient
himself.
er,
probate judge
required
was not
is,
effect,
a finding
Such a conclusion
Duffey’s challenge
rule on
to Bart Miller’s
that the
and it
competent,
Goolsby’s
standing
Chris
to make the
request
of a
express denial
form a order final and
appealable. The record
guardianship.
only Goolsby,
this case shows
Duffey appeared
guard-
and contested the
Although there is no order in the
ianship
Although
Miller
proceeding.
Bart
using
express language
record
“the
named
alter-
Chris
were
there were
ap
is denied” and
declaration,
nate
Miller’s
nei-
guardians in
parently
hearings
proceed
no further
Goolsby ap-
ther Bart Miller nor Chris
ings
application,
on the
15th
peared before the court. Neither
themof
final.
magic language
order is
There is no
contested,
sought
any way,
nor
the need
required
render
final. See
Thus,
for or
*7
Lehmann,
Further,
Thompson Software Marchand, 789, repaid by Goolsby Proper- Belg., v. 83 loan been N.V. S.W.3d had II, (Tex.2002). had Lyndhurst but she ties to Dallas 795 We conduct our review of on the debt. any payments sufficiency challenges implied findings not received to under the same standards of review that testimony, Thompson’s Following govern sufficiency jury challenges to find- further re- producing evidence without ings findings or a trial court’s of fact. See Duffey ai-gued Goolsby’s standing, garding Roberson, Although 768 at 281. S.W.2d Goolsby showed bor- the evidence may sufficiency we not review the $100,000 Lyndhurst Dallas II from rowed law, support evidence conclusions we repaid. had not been money and the may review correctness of the conclu- Thus, Goolsby according Duffey, was as from the A & sions drawn facts. W 681(7) of the disqualified under section Indus., 738, 741 Day, Inc. v. 977 S.W.2d code, and, turn, standing lacked 1998, (Tex.App.-Fort pet.). Worth be- 642 of the code under section had an interest adverse to Mil- cause she argument Because the evidence and argue any other rea- Duffey ler. did not presented regarding Goolsby’s standing standing. At the Goolsby’s son for lack of was that she was indebted to Miller and hearing, probate judge close of the disqualified therefore under section against orally granted the motion limine 681(7) code, presume we Goolsby stating without the basis for his probate judge’s that was the basis for the Thereafter, probate judge decision. conclusion that had an interest granting Duffey’s motion signed his order adverse to Miller un- standing and lacked Miller, again in limine without stat- against der section 642. None of the ing grounds doing so. 681(7) pro- Section of the probate code findings of fact and con- parties requested person pro- vides indebted to the law, probate judge clusions of and the did posed ward cannot be as a findings not make or conclusions. person pays unless the the debt party The issue of whether a appointment. before Tex. Prob.Code Ann. in a standing participate guardian has 681(7) (Vernon 2003). Section 642 of the ship proceeding question is a of law. See probate provides code as follows: Co., George Cleaver v. Staton 908 S.W.2d (a) Except provided as by Subsection 468, 1995, (Tex.App.-Tyler 472 writ de (b) section, any person this has the Atkins, nied); 160 Tex. see also Womble right any commence (holding proceeding, including proceeding or not a has an interest in whether complete capacity restoration of a ward’s an estate is reviewed de novo the court guardianship, or modification of a ward’s appeals). findings If no of fact or con appear any guardian- or to and contest requested, of law are filed or all clusions ship proceeding or the findings necessary support the trial particular person are Ather- implied. court’s Holt (b) A person who has an interest that is Indus., Heine, Inc. v. ton S.W.2d to a proposed incapaci- adverse ward or (Tex.1992); Robinson, Roberson v. person may tated not: (Tex.1989). When, case, filed, file an reporter’s guard- record is to create *10 implied findings ianship trial court’s are not con for the ward or inca- proposed may challenged legal pacitated person; clusive and (2) guardian- of a contest the creation interest under section that incapaci- ship proposed automatically for the ward or does not do so. person;
tated Further, in this case we need not deter- $100,000 mine if (3) debt alone is sufficient person contest the of a preclude to estate, standing under section 642 be- person as a or guardian of or is no both, cause there evidence in the record incapaci- proposed ward or showing Goolsby was indebted to Miller. person; tated or contrary, To the the record shows only complete contest an application for Goolsby Properties that was indebted to capacity restoration of a ward’s or modi- Lyndhurst Dallas II. is no There evidence fication of a guardianship. ward’s regarding ownership or control of (Vernon 2003). § Tex. Prob.Code Ann. Goolsby Properties, and no evidence that Goolsby any owned Goolsby interest code does not define an Properties. Because there is no evidence interest adverse to interest of a ward to support implied finding Goolsby proposed 642. or ward under section to indebted the probate judge analyz- Nor is there case published law by concluding erred the debt created an or ing defining such an interest. With- to interest adverse Miller that would pre- fully attempting out to define an adverse Goolsby’s clude standing participate interest under section we decline to this proceeding. We sustain of a conclude evidence debt alone Goolsby’s Miller and Having third issue. to the automatically rises level of an ad- so, done we need not their address remain- per- verse interest sufficient divest a Tex.R.App. ing 47.1. issues. P. of standing section Sec- son under for a person tion itself allows who is judgment We render denying Duffe/s proposed pay indebted to the ward to motion in limine with respect Goolsby, the debt and be that portion and strike 681(7). Without judge’s order precluding from Tex. Prob.Code Ann. evidence of the amount of the debt in re- participating guardianship proceed- pro- lation to the (1), (2), (3), estate ward or ing parts as described ward, posed ability 642(b) or inability of of section of the Texas Probate debt, proposed guardian repay the or Code. other
some
evidence such as
misuse
LANG,
dissenting, joined by JJ.
J.
funds to the
or
detriment
the ward
O’NEILL, RICHTER, LANG-MIERS,
ward,
evi-
proposed
we cannot conclude
MURPHY, and FILLMORE.
cre-
automatically
dence
debt alone
an
ates
interest so adverse to the ward
Dissenting Opinion By Justice LANG.
proposed
that it
ward
would divest
The majority opinion concludes we have
standing
application
file an
jurisdiction
appeal.
of this
be-
to create a
or to contest
cause I would conclude there is no final
guardianship,
ap-
the creation of a
order or
this case
we do
pointment of a person
guardian,
as a
I
jurisdiction,
respectfully
have
dis-
for restoration of a ward’s
sent.
capacity or modification of a ward’s
guardianship.
reaching
majority
the order
this conclu-
determines
sion,
suggesting
Duffey’s
we are not
debt
granting
pursu-
motion in limine
642(c)
never
can
rise to the level of an
ant to
Probate
section
adverse
Texas
Code
*11
or
Goolsby’s standing
guardian-
language,
in this
order “states
unmis
as to
“merged
clarity
into” the
that
it is final as
all
has
takable
ship proceeding
order,
15,
parties”)
the
and all
and Crowson v.
abatement
claims
final,
ju-
analy
is
and we have
a method of
(prescribing
order
Wakeham
abatement
defining
this appeal.
probate
over
Premised on sis for
whether a
order
risdiction
conclusion,
“phase”
the
then
of
majority
disposed
reaches
discrete
the
final).
the mo-
granting
probate litigation
of the order
is
Leh
the merits
and
record,
However,
Corp.,
in limine.
on this
I
v. Har-Con
he did not need a but gave After closing their ar- probate court enforce the declaration if limine, guments respecting the motions it found a In the needed. court stated in discussions alternative, requested Miller with counsel record court disqualify Duffey acting from court as “thought” “appoint attorney it would an ad guardian because of her adverse claims litem in this case to continue to look out him in against pro- the contested divorce Miller, Miller, for Mr. talk to Mr. and to Also, ceeding. Miller filed a motion in need, report they back me if perceive challenge standing limine Judge have someone that Roach can Duffe/s guardianship proceeding. In her an- turn to if perceives get he that he needs to swer, Goolsby asserted Miller did not also information that he’s not receiv- otherwise alternative, Also, need she ing.” court informed the court requested “use least parties that both motions in limine as to available,” alternative such Duffey granted. restrictive would Then, appointing appoint- ad litem requested counsel appellants' 1. This is identified in brief identified as Barton Miller. I refer to John Bart he him declaration as Bart Miller. capacity or modifica- Miller’s discussing before their clients restoi’ation confer *13 probate guardianship. “back on his the divorce case tion of get how to Duffey’s so motion in may want to do far did not address “what we court and track” for attorney ad litem Mr. Goolsby. an as to Bart Miller or Chris appointing limine as recess, order, Also, After a brief concern.” the the January Miller’s in to parties recommended attorney for both court Norris probate appointed counsel 4, 2008, be court that Norris probate February the agreed. litem as On ad court probate ad litem and the attorney guardianship his in the Norris filed answer After Miller’s appoint to Norris. agreed accepting his proceeding court that reminded the counsel attorney ad litem. for original application the filed Norris or proceedings no hear- With further in responded part: the court guardianship, an signed the court order ings, know, go if to for- wants [Norris] You 2008 that abated “the dated appoint to a application ward with the case to its inac- reassigned cause” and it, go I’ll but forward guardian, states, pertinent in order tive docket. into this in gone I haven’t I’m—and part: that Mr. thoroughly to be satisfied depth of the Court finding It but I guardian, Miller doesn’t need a III STEPHEN MILLER has JAMES through he this get would think needs to formulate a capacity mental to sufficient divorce. divorce, desire to obtain and rational
Then, question Duffey’s counsel asked relating make to divorce to decisions court, resulting in the follow- action, necessary and that it is neither exchange: ing in appoint guardian to appropriate nor inclined— Is the still COUNSEL: Court this cause advantage of hav- you mentioned the this is ABAT- It is Ordered that Cause ing a medical exam or medical— ED, hereby reassigned Cause is Well, can [Norris] THE COURT: John the Inactive Docket of Court. to that further. come back and advance it, going I’ll I’m need consider in record indicates there Nothing propose in who for John come in which either the hearing was ever going be the if it’s not is to guard- for Duffey application Norris or the Goolsby.... to be Ms. ianship contrary, was tried. To the above, the court hearing Goolsby’s hearing empha- and Duf- described After the limine, being in limine were court sized motions fey’s motions Further, court January granting, order considered. signed its limine, in that hearing announced on the record pursu- both part, motions Probate he wanted recommendations ant to section 642 of the Texas “need” Code, attorney ad litem as to the for Duffey and were declared any medical exami- and when participate proceed- guardianship not allowed (1) Miller considered. The filing appli- might an nation of be ings following: as to the Miller, any is silent such recommen- to create a for record cation (2) Finally, the record contains contesting guardian- the creation of a dations. Miller, any denying application contesting appoint- granting orders or ship for or compensating or dis- person ment of a as a estate, Ap- ad litem. both, charging Non'is as January complete challenge only contesting pellants Duffey’s granting purposes 2008 order motion ments final for can be Goolsby. rendered on certain discrete limine as issues.” De
Ayala,
(quoting
Parks v. DeWitt Elec. above, my As stated it is view there is 157, 160 (Tex.App.-Corpus judgment no final order or all disposing of pet.)). Christi no If the record does parties claims and affirmatively appel- demonstrate the proceeding. The last order in the record jurisdiction, appeal late court’s be must clearly is the abatement order that dismissed. Id. expressly stated the ABATED.” “Cause is Applicable A. Law The abatement order does not meet either of finality tests of the Lehmann may Litigants generally appeal only case, majority which the opinion says it judgments, from final statutory absent ex follows. Bendtsen, ceptions. See re Estate of 847 (Tex.App.-Dallas S.W.3d majority opinion anticipates and dis- Lehmann, pet.) (citing no 39 S.W.3d at points cusses some of the I make in this 195); Mackie, De Ayala see also respect majority, dissent. With due to the (Tex.2006). The Texas I will points address those and other Supreme Court has held that: depth. only cases in which one final and [I]n First, majority construes abate- rendered, appealable judgment can be a judgment denying ment order as a final
judgment issued
without
conventional
guardianship.
Howev-
purposes
trial is final for
if
appeal
er, appellants
appeal
judg-
did not
from a
actually
if either
disposes
of all
disposing
pro-
ment
the guardianship
court,
claims and
then before the
ceeding or from the abatement order.
regardless of its
or it
language,
states
solely
granting
from
clarity
with unmistakable
it is a
disqualifying Goolsby.
the motion in limine
judgment
final
all
as to
claims and all Appellants do not attack or address the
parties.
order,
acknowledge
abatement
there is
Lehmann,
statutory
code. The
but hold
tionship
stating
future,
of the two orders
might
necessary
one
the motion
limine is
granting
order
then abate
case until such time as the
the”
abatement
order.
“merged into
judge
to revisit
re
chooses
the issue.” In
Then,
majority says the
abatement
Guardianship
299 S.W.3d at
disposes
“expressly
of the entire
187. The abatement of the case is un-
because,
is final
case” and
addition
and,
view,
equivocal
majority’s
under the
abatement, the order stated “it is neither
of lack
finding
guardian-
of need of
necessary
appropriate
appoint
nor
ship
obviously
in conflict with the abate-
guardian in this cause.”
abundantly
ment. Our
has made it
Court
by the
language
majority
cited
clear that “where there
to be a
appears
recital, i.e.,
abatement order is
not the
discrepancy
judgment’s
between the
recit-
Any
court’s order.
“factual recita-
al and decretal paragraphs, a trial court’s
*15
preceding
tions or reasons
the decretal
recitals,
precede
which
the decretal por-
form
portion
judgment
part
no
judgment,
tions of the
do not determine
Britt,
judgment
itself.” Nelson v.
241
rights
parties.”
and interests of the
672,
2007,
(Tex.App.-Dallas
S.W.3d
676
no Nelson,
Alcantar,
241
at
(citing
S.W.3d
676
Bank,
pet.) (citing Alcantar v.
Nat’l
Okla.
823);
Crider,
47
at
S.W.3d
see also
960
815,
(Tex.App.-Fort
47
823
S.W.3d
Worth S.W.2d at 704. The
provisions
decretal
Cox,
pet.));
see also
Crider
960
Nelson,
judgment
control. See
(Tex.App.-Tyler
writ S.W.3d at 676.
denied)
(same). The probate
court’s
Third, I believe a review of the entire
cryptic
ambigu-
abatement order is not
record demonstrates the abatement order
It expressly
ous.
abates the case.
Lehmann,
judgment.
is not a final
Second, majority
anticipates and dis-
(when
S.W.3d at 198
determining whether
agrees
my
determination that the de-
final,
an order is
the entire record
must
portion
cretal
of the abatement order con-
considered). Here, consideration of the
Nelson,
majority
I,
The
trols.
cites
as do
entire record
reflects
court did
general principle
for the
that where there
not hold a hearing or make a determina-
discrepancy
is a
between
judgment’s
on all
by
tion
of the issues raised
Norris’s
recital
paragraphs,
and decretal
the decre-
but, indeed,
application for guardianship,
Nelson,
tal portion controls. See
intentionally
the proceeding.
abated
Yet,
S.W.3d at
majority
676.
suggests
Several
creating
bases and reasons for
there
discrepancy”
is “no
between the re-
were raised
Norris
his
cital
paragraphs
and decretal
so there is
application
guardianship.
In
ap-
“no need to
portion
conclude the decretal
plication,
requested
he
the probate court
respect,
controls.” With
I
alia,
appoint guardian,
inter
Mil-
because
suggest
majority’s
statement
there is
ler was “unable to care for himself or to
discrepancy”
“no
inis
conflict with its ma-
affairs,”
manage his financial
jor premise. The
and asked
major premise of the
that, indeed,
the court
to determine
majority’s conclusion is
whether Miller
there
“discrepancy”
is a
should be
between the recital
allowed
vote or hold or obtain
because,
paragraphs
decretal
major-
driver’s license. Attached to Norris’s
view,
ity’s
application
abatement
was a
improper.
physician’s
letter
majority says unequivocally that
which
physician
Miller’s
stated “action
“[t]he
probate code does not allow for a probate
needs to be taken
patient’s
to ensure
judge to determine a guardian is not nec-
healthcare and financial needs” and recom-
ly
family
not be allowed to drive.
on the
court proceedings
mended Miller
do not
Further,
attached Miller’s declara-
Norris
address critical issues as to whether Mil-
designated Goolsby
as
tion
health,
ler was able to maintain his
man-
Bart Miller and
and listed
Chris
affairs,
age his financial
or should be al-
guardians.
alternative
as
requested
lowed
vote or drive as
application
Norris’s
for guardianship and
The record disclosed the
physician’s
addressed in the
letter.
considered Norris’s
summarily as to the divorce
Fourth,
I disagree
majority
with the
in the abatement
proceeding
order.
says
when it
court’s failure to
limine,
the motions in
hearing
discharge Norris from
appointment
his
merely
probate court
stated on
record
compensation
and address his
attorney
gone
depth
into this in
to be
not]
it “[had
prevent
ad litem does not
the case from
thoroughly
satisfied that Mr. Miller
being final.
It
is clear
are
these
unre
guardian,
doesn’t need a
I would
prevent
solved issues that
the order from
get
through
think he needs to
this di-
Lehmann,
being final. See
39 S.W.3d at
vorce.” The record reflects no consider-
192-93.
accepted
appointment
Norris
medical,
and relevant
ation
current
ad litem on
psychological,
testing
and intellectual
rec-
majority
asserts
Norris’s
physician’s findings
ords of
nor the
*16
expired
days
eleven
later without court
that were a
of
part
and recommendations
order, pursuant to section 646 of the pro
Also, in
application.2
hearing
the
the
on
code,
bate
a guardian
because
was not
limine,
in
probate
the motions
court
appointed.
§
646
Tex.
Prob.Code Ann.
issue,
identified Miller’s health as an
(Vernon
2008). Yet,
Supp.
this conclusion
the record reflects that at
point
some
dur-
is not
with
consistent
the record. The
probate
merely
that
court
ing
hearing
probate
appointed
report
court
Norris “to
having
a medical exam
commented
they
back to me if
perceive a need”
“advantage.”
probate
would be an
The
throughout
the divorce
in
proceeding
interrupted Duffey’s
ques-
court
counsel’s
family court. The record does not reflect
comment,
“Well,
saying,
tion about that
proceeding
pri-
the divorce
was terminated
John
can come back and advance
[Norris]
15,
February
or to the
2008 abatement
probate
further.”
It
is clear the
purported “findings”
Guardianship
court’s
order. See also In re
its Febru-
of
05-08-00448-CV,
ary
abatement order that focused sole-
No.
2008 WL
medical,
(b)
probate
provides:
psychological,
2. Section 686 of the
code
Current
and in-
testing
tellectual
records are a sufficient
Hearing
Appoint
Use
of Records
guardianship.
Guardian
basis for a determination of
(a)Before
hearing may
(c)
be held for the
findings
The
and recommendations con-
guardian,
current and
medical, psychological,
tained in the
medical, psychological,
relevant
and in-
testing
intellectual
are not bind-
records
testing
proposed
tellectual
records of the
ing on the court.
provided
attorney
ward
to the
must be
ad
(Vernon 2003);
see
Tex. Prob.Code Ann.
appointed
represent
proposed
litem
Dep't
Regulatory
also Trimble v. Tex.
Protective &
of
ward unless:
v.,
211,
(Tex.App.
Ser
Houston
1998,
pet.) (filing
no
of
[14th Dist.]
(2)
finding
makes a
on the rec-
guard
physician’s report
ord that no current or relevant records
ianship
requirement
fulfills medical records
examining
proposed
exist and
ward
code).
686(a)
probate
section
purpose
creating
for the
the records is
impractical.
18,
20, 2008,
February
3824000,
(Tex.App.-Dallas Aug.
challenging
at *1
(mem.
January
granting
court’s
22 order
the mo
Duf-
2008,
op.) (granting
pet.)
motion,
tions
limine. That
if considered
8, 2008 motion to dismiss
fey’s August
majority’s position,
under the
was over
have reached a settle
“the
because
law,
by operation
ruled
and the
mediation”).
ment in
expired no later
plenary power
court’s
Further,
majority
contends
be-
days
than 105
after the “final”
has not intervened and
cause Norris
P.
May
on
2008. See
Tex.R.
Civ.
requested the
record does not show he has
(e).
329b(c),
is clear that the
record
compensation, there is no
court to set his
compen
court did not tax Norris’s
compensation in this
unresolved claim for
plenary power
sation as costs before its
case,
necessary
it is not
to set
expired May
would have
2008. Ac
attorney
compensation
litem’s
for a
ad
cordingly,
majority’s
conclusion that
regard to the
judgment to be final. With
final
15 abatement order is
contention,
respectfully suggest
I
first
denying
compensa
has the
effect
Norris
no reason to intervene in this
Norris had
any
performed
tion
services
the court to set his com-
request
case or
attorney
li-
court’s
ad
until the conclusion of the case.
pensation
Co.,
tem. See
Pac.
Sheehan
S.
language
order’s clear
did
abatement
(Tex.App.-Houston
950-51
[1st
final
not
give
not
notice was
and would
n.r.e.)
(court-ap
writ ref'd
Dist.]
attorney ad
compensation-seeking
cause a
pointed “attorney ad litem” not
entitled
majority’s
act. As to the
second
litem to
compensation because trial court
re
contention,
majority
cites section 665A quired to
compensation
tax ad litem’s
proposition
code for the
costs and
so after
plenary
could
do
its
to an
ad litem is to
compensation
power expired). Although there is author
be “taxed as costs
the case.”
Tex.
*17
ity to the effect an
could
final
order
(Vernon 2003).
665A
Ann.
Prob.Code
taxed,
though
even
costs have not been
Further, citing Thompson
Beyer,
v.
91
proposition simply
not
does
address
902,
2002,
(Tex.App.-Dallas
no
S.W.3d
903
logical question
nor answer the
Nor
about
majority
a trial
pet.), the
asserts
court is
compensation being
ris’s
an unresolved is
judg-
for
required
not
assess costs
its
finality
sue that demonstrates the lack of
However, weighing
ment
to be final.
Lehmann,
of the order.
39
at 192-
S.W.3d
finality
of
strongly against
construction
93.
that,
record,
is the fact
on the
Finally,
my
it
view
central
is
difficul-
charged
responsibili-
court
Norris with the
ty
majority
with the abatement or-
ty
“report
to watch out
Miller and
why”
der is that it
“unclear
is
Further,
nothing
there is
back.”
dismiss,
court chose to abate rather than
suggesting
record
Norris was to be termi-
thereby
placing
“suspended
the case
litem
nated as
ad
without com-
Guardianship
re
animation.” In
Mil-
Therefore,
agree
I cannot
pensation.
ler,
However,
197 because, Rather, effectively that order appellate re-write court should address agree appeal, may question we not with the whether the granting order court’s decision to abate. See Meridiem motions limine is ap reviewable on Hotels, L.P., I, Fin. P’ship peal Inc. v. LHO 97 using analysis directed 731, 2003, 2 (Tex.App.-Dallas Supreme S.W.3d 734 n. Texas probate proceed Court for (interlocutory pet.) ings. no abatement not must decide order We whether the order appealable, subject adjudicated writ of manda “substantial right” and dis mus); Gore, 696, In 251 posed re S.W.3d 700-01 of all in a particu issues 2007, (Tex.App.-San orig. proceed phase Antonio lar of the proceedings or whether it (mandamus ing) granted trial ordering merely stage “set the for resolution of the court to vacate indefinite order of proceedings.” abate See Ayala, De 193 S.W.3d ment); Sims, 297, 88 at below, re S.W.3d 306 579. as described not 2002, (Tex.App.-San Antonio even orig. proceed analysis under that can Leas, (same); ing) appealed Bennett No. see also v. from be ap- considered final and 13-04-362-CV, 608289, pealable. *1 WL at 2005, 17, (Tex.App.-Corpus Christi Mar. case, Ayala although De not a denied) (mem. (“order pet. op.) of abate case, instructive. id. interlocutory ment is not an authorized at 576-80. Brittingham, a Mexican resi- appeal”); Serrano v. Union Planter’s dent, died in Mexico probate pro- where a
Bank, (Tex. N.A., 381, ceeding was initiated. at Id. 576-77. (order App.-El pet.) grant Paso Subsequently, the decedent’s wife filed an ing motion to interlocutory abate have his will admitted to Inc., Harper Welchem, not appealable); probate in Webb County, Texas. Id. at 496 (Tex.App.-Houston S.W.2d Ayala, a daughter De of the dece- writ) (order 1990, no granting [14th Dist.] dent, claiming moved dismiss the Texas abatement appealable); Bills v. Bras subject tidal lacked jurisdic- matter well, (Tex.Civ.App.- tion. She moved alternative have (same). orig. Texarkana proceeding) Brittingham Ms. removed as executor. The motions were De Ayala denied and conclude, I would if an analysis following appealed. appeals, At the court of utilized, the Lehmann is abatement order estate son of the decedent moved *18 by did not the the dispose of issues raised appeal the subject dismiss for lack of application for guardianship ap or the jurisdiction. matter appeals The court of pointment compensation attorney or of the concluded both it and the court trial had ad litem and the case in remains interlocu jurisdiction the proceeding, over but Ms. Moreover, tory status. I Leh believe the Brittingham should be removed as execu- analysis mann by majority used the is tor conflict of The due to a interest. Tex- inapplicable probate to this case. See Leh Supreme as Court disagreed the mann, (“We at 192 S.W.3d consider court of court appeals, deciding the of only eases in which one final appeal- and appeals jurisdiction. had Id. at 580. able be can rendered not and The was dismissed. eases, like probate receivership some and proceedings, multiple in which judgments supreme court rules clarified articu- purposes appeal can ren in prior opinions, particular be lated in the final for of Crowsm, dered (citing on certain discrete in respecting issues.” rule stated whether Croiuson, pro at 783 “an (involving interlocutory probate S.W.2d otherwise order added). bate proceedings))) (emphasis enough qualify appeal.” is final for Id. Rather, probate the issue at this quoted in was the code. rule Crowson at in is point proceeding guardianship the by the court: instituted, be whether will guardianship a statute, express such If is an there and, is, appointed guard- if it who would judg- complete heirship the the one for context, ian. In I would this conclude phase ment, declaring the of the pur- for the “phase” proceeding, of the appealable, final and to be proceedings poses determining appealability of of the Otherwise, if controls. that statute in the determination of question, order is the order which proceeding is a there guardianship of a and the necessity logically be a may considered question in appointment guardian. of a See id. pleadings more also part, one or but proceeding that raise issues part Next, whether I determine would of, disposed then the parties not adjudicated appellants’ order question interlocutory. disposed that right” “substantial and id.; “phase” proceeding. See of the Crow- 783). Crowson, 897 at (quoting Id. S.W.2d son, Both applica- at 782-83. Moreover, supreme court observed tions for made broad re- guardianship Crowson, the “order was interlocu- that in quest of a appointment dispose par- all tory it did because order, abatement its of the particular phase ties or issues recited Miller had court Finally, at 579. Id. proceedings.” capacity specifically sufficient mental Ayala, in De supreme “[be- court ruled purposes divorce “it is denying plea juris- to the an order cause refusing necessary appropriate ap- an executor neither nor remove diction and phase proceedings, point does not end in this cause.” The fact stage for the of all resolution sets that the made this probate court statement interlocutory.” the order is proceedings, simply in the abatement order does not Id. dispose of the claims and “phase” broadly pled applica- because case, particular, of this At the center tion for Mil- addressed for the application Norris’s “to care alleged incapacity ler’s for himself for Miller’s and es- was, his financial affairs” ac- manage application noted tate. Norris record, cording by never to the clear heard signed” “purportedly Miller had a declara- court, decided, hence not tion, Goolsby, Bart which named Further, “abated.” guardians. as alternate Chris , announced on the record wanted was contested Duf- Norris’s litem recommendations of the ad fey. Goolsby’s Miller’s and answers also the “need” for *19 stated, in guardianship, the contested any when medical examination of Miller alternative, attorney the either an ad litem might be The record is silent considered. appointed Goolsby should be should The any as such recommendations. motions in as probate appli- court has not denied either Duffey Goolsby as inte- limine of were cation, order intact the abatement leaves gral proceeding as the guardianship to the Norris’s ad litem contesting the answers in Nor- guardianship proceeding, the guardianship. the ultimate is- ris’s for his services in that compensation proceeding sue in the is not whether by the regard of not been addressed Goolsby disqualified under section 642 has
199 Finally, Duffey’s motion probate language, court.3 order’s and the abatement order only standing in limine not attacked the of plainly does not state it disposes of all sought disqualify also Bart Goolsby, but parties. claims and all of Neither the Goolsby. Miller Chris The probate in Lehmann tests is met this case. See id. Duffey’s part court not rule on the of did (“We at consider cases in which standing motion that addressed the of Bart appealable judgment one final and can be Miller or serve guard- Chris cases, rendered and like some ian With of under declaration. all and receivership proceedings, in which pending, these matters the central issue multiple judgments purposes final for of proceeding certainly remains undecid- can be rendered on certain discrete “phase” ed and of Crowson, (citing issues.” at is not at an proceeding end. (involving proceedings))) (empha- added). Goolsby’s without Assuming deciding sis right” adjudicated by “substantial I Accordingly, would the pro- conclude order, January the merits of Duffey’s bate court’s order granting mo- Duffey’s ruling court’s motion tion in Goolsby’s limine as to standing is ap limine cannot be now on addressed final, not a appealable order because it
peal merely because that ruling sets dispose does not parties of all claims and stage phase for resolution of the phase the relevant guardianship proceeding. Ayala, De proceeding. 579; Crowson, at 897 S.W.2d at party may 782-83. A seek still relief court to set aside the abate III. CONCLUSION order, proceed ment a guardianship with my view, the probate court’s order application, and ask the court to rehear the 642(c) granting the in li- section motion in limine. motions to Goolsby’s mine as standing analyzed Whether under Crowson final, guardianship proceeding ap- is not a
phase analysis, or even under Lehmann pealable order. Accordingly, I de- would analysis, the abatement is not final termine the appeal should be dismissed for because it does not of all dispose claims jurisdiction. want of parties, and all nor is it final on its face. guides finality Lehmann us to determine
based whether a upon judgment: “ac-
tually of all disposes claims and court, regardless
then before the of its
language”; “states unmistak- clarity
able is a final toas Lehmann, parties.”
all and all claims
S.W.3d at 192-93. A review of the record
demonstrates all claims and all parties
are not disposed “regardless” obligation ward.”) proposed has an under sent the interests of *20 added); (“The compensation (emphasis § code to address Id. 665A court attorney ad payment its litem. shall order the of a fee set Tex. Ann. Prob.Code 646(a) (“In proceeding attorneys under chapter compensation diis court as to the ... guardian, for the chapter under ... be taxed case.”) added). appoint repre- (emphasis shall ad litem to costs