in the Matter of the Guardianship of Erma Lee Bays, an Incapacitated Person ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00039-CV
IN THE MATTER OF THE
GUARDIANSHIP OF ERMA LEE
BAYS, AN INCAPACITATED
PERSON
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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellant Nyagudi O. Okumu appeals the trial court’s order that, among
other things, appointed Appellee Wells Fargo Bank, N.A. as the temporary
guardian of the estate of Erma Lee Bays. In four issues, Okumu contends that
the trial court failed to properly serve him notice of the temporary guardianship
hearing; that the trial court deprived him of due process of law when it ordered
that he turn over funds to the trial court’s registry; that the trial court’s order
requiring him to turn over funds is not supported by the pleadings or evidence
and is vague and ambiguous; and that the trial court lacked jurisdiction to hold
him in contempt. We will affirm.
II. BACKGROUND
On September 15, 2008, a social worker filed a suggestion of need for
guardianship or need for investigation of circumstances under probate code
section 683. See Tex. Prob. Code Ann. § 683 (West Supp. 2010). Among other
information, the suggestion stated that Bays, the proposed ward, had transferred
money to Okumu and that Bays was unable to care for her own physical health
and manage her own financial affairs. Attached to the suggestion was a
physician’s certificate of medical examination indicating that Bays was partially
incapacitated and was unable to handle her financial affairs. Based on the
suggestion, the trial court appointed a court investigator and a guardian ad litem
to investigate.
Based on her investigation, the guardian ad litem filed an application for
letters of guardianship on October 27, 2008. The guardian ad litem requested
that the trial court appoint a permanent guardian of the person and the estate of
Bays. Following the filing of the application for guardianship, the trial court
appointed an attorney ad litem to represent Bays on November 18, 2008.
Okumu filed a pro se motion on November 20, 2008, asking the trial court
to inform him of any actions taken in the case and asking the court to recognize
that Bays had given him her power of attorney. On November 24, 2008, Okumu
filed another motion titled ―Answer to Application for Letters of Guardianship
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Section 683, Texas Probate Code and a Motion for Continuance on the Hearing
Therein.‖ In that motion, Okumu claimed to have an ―interest in the welfare of
[Bays].‖ Okumu’s attorney filed a notice of appearance as counsel on January 5,
2009. That attorney filed a contest to the guardianship. In his contest, Okumu
claimed that Bays did not need a guardian. He alternatively requested that the
trial court appoint him as the guardian.
On January 21, 2009, the guardian ad litem filed an application for
temporary guardianship. See id. § 875 (West Supp. 2010). In the pleading, the
guardian ad litem alleged that emergency relief was needed because Okumu had
withdrawn over $200,000 from bank accounts held in Bays’s name and closed
them. The trial court held a hearing on January 27, 2009, regarding the
temporary guardianship. Okumu, accompanied by new counsel, attended the
hearing, asked the court to rule on Okumu’s previous attorney’s request to be
removed as his counsel, and requested a continuance. The trial court denied the
continuance, allowed Okumu’s substitution of counsel, and conducted the
temporary guardianship hearing. At the close of the hearing, the trial court
appointed temporary guardians—a temporary guardian of Bays herself and Wells
Fargo as temporary guardian of her estate. In its temporary guardianship order,
the trial court ordered Okumu to place funds that had been removed from Bays’s
accounts or from accounts held jointly in Okumu’s and Bays’s names, into the
trial court’s registry. Okumu did not comply. The trial court eventually found
Okumu in contempt and ordered him incarcerated. This appeal followed.
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III. DISCUSSION
A. Notice to Bays and the Trial Court’s Jurisdiction
In part of his first issue, Okumu contends that Bays was never ―personally
served with citation‖ before the guardianship hearing. Thus, according to
Okumu, the trial court lacked jurisdiction to enter an order appointing temporary
guardians for Bays.
Section 875(e) of the probate code states that ―[o]n the filing of an
application for temporary guardianship, the clerk shall issue notice that shall be
served on the respondent, the respondent’s appointed attorney, and the
proposed temporary guardian named in the application, if that person is not the
applicant.‖ Tex. Prob. Code Ann. § 875(e). Relevant to this case, a party may
resort to substituted service, but only upon the failure of those methods which
provide proof of actual notice—personal service or service by registered or
certified mail, return receipt requested. See Tex. R. Civ. P. 106(a), (b); State
Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 298–99 (Tex. 1993). Rule 106
allows the trial court to sign an order approving a substitute method of service,
provided the movant files a motion supported by proper affidavit. See Tex. R.
Civ. P. 106(b); Costley, 868 S.W.2d at 299. A trial court’s order authorizing
substituted service is the sole basis for such authority. Vespa v. Nat'l Health Ins.
Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003, no pet.).
Citing cases that stand for the proposition that notice cannot be waived in
a temporary guardianship setting, Okumu contends that ―personal service of a
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putative or an alleged incapacitated person in a guardianship proceeding is
mandatory.‖1 See e.g., Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.—San
Antonio 1989, writ dism’d) (holding that the personal service requirement under
the former guardianship statute was jurisdictional and, therefore, the trial court
properly dismissed a guardianship proceeding when the proposed ward had not
been personally served). But Okumu is simply mistaken in his proposition that
substituted service under Rule 106 is not an accepted method of personal
service in a temporary guardianship setting.
In this case the record demonstrates that after multiple attempts to serve
Bays by the certified process server under the methods that provide proof of
actual service, the process server resorted to court order; and in compliance with
Rule 106 and that order, he served Bays by attaching the notice to her door. See
Tex. R. Civ. P. 106(b). The record contains an affidavit by the process server, a
motion for substituted service, an order by the trial court, and a return by the
process server—all before the hearing on temporary guardianship. We overrule
this portion of Okumu’s first issue.
In part of his first issue, Okumu also argues that because Bays was in the
hospital when the temporary guardianship hearing was held, she ―could not [be]
1
In his original brief, Okumu argued that service was defective under Rule
106. In his reply brief, Okumu changed the focus of his issue, contending that
substituted service is a waiver of personal service and that substituted service is
inappropriate in a guardianship setting. The record demonstrates that the
process server attempted multiple times to personally serve Bays, that Bays
refused to be served, and that the process server obtained a Rule 106 order and
complied with it.
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and was not present at [the guardianship] hearing.‖ Thus, according to Okumu,
the trial court lacked jurisdiction and its order was void. Although the probate
code does state that a proposed ward has the right to be present at the hearing,
we find no infirmity in the trial court allowing Bays’s attorney ad litem to represent
her interests while Bays remained in the hospital. See Tex. Prob. Code Ann.
§ 685(a) (West 2003); In re Guardianship of B.A.G., 794 S.W.2d 510, 513 (Tex.
App.—Corpus Christi 1990, no writ) (reasoning that personal appearance at a
hearing appointing a guardian can be made by ―representation by counsel‖). We
overrule this part of Okumu’s first issue.
In the remainder of his first issue, Okumu seems to contend that the trial
court is required to demonstrate that a process server’s return be on file for ten
days prior to the temporary guardianship hearing. See Tex. R. Civ. P. 107.
Wells Fargo argues that Okumu is trying to add statutory requirements to the
probate code that do not exist. We conclude that probate code section 875 does
not have a ten-day-notice requirement prior to a hearing being held. See Tex.
Prob. Code Ann. § 875. Indeed, in a temporary guardianship procedure, the
probate code requires a hearing to be held ―not later than the 10th day after the
date of the filing of the application for temporary guardianship.‖ Tex. Prob. Code
Ann. § 875(f)(1). It would simply be impossible to allow a return to be on file for
ten days prior to the temporary guardianship hearing and to hold the hearing
within the statutorily required ten-day period. We overrule the remainder of
Okumu’s first issue.
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B. Due Process
In part of his second issue, Okumu contends that he was deprived of due
process of law when the trial court ordered that he turn over funds that had
previously been in Bays’s bank accounts. We conclude that Okumu was not
deprived of due process.
Due process of law requires that an individual receive notice and hearing
before being deprived of a property right. See Grannis v. Ordean, 234 U.S. 385,
394, 34 S. Ct. 779, 783 (1914) (―fundamental requisite of due process of law is
the opportunity to be heard‖). But due process does not require that a
complainant who has been granted an opportunity to be heard and has had his
day in court should, after a judgment has been rendered against him, have
further notice and hearing before supplemental proceedings are taken to reach
his property in satisfaction of the judgment against him. See Ex parte Johnson,
654 S.W.2d 415, 418 (Tex. 1983) (stating that notice and hearing prior to
issuance of a turnover order is not required). In the absence of a statutory
requirement, it is not essential that a complainant be given notice before the
issuance of an execution against his tangible property; after the rendition of the
judgment, he must take notice of what will follow, no further notice being
necessary to advance justice. Endicott Johnson Corp. v. Encyclopedia Press,
Inc., 266 U.S. 285, 288, 45 S. Ct. 61, 62–63 (1924).
In this case, Okumu complains that he was deprived of due process of law
because he was not given notice of the temporary guardianship hearing. Okuma
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does not point this court to any statutory requirement entitling him to notice prior
to the hearing which he participated in. And the record demonstrates that
Okumu participated extensively in the temporary guardianship proceedings. He
filed multiple motions prior to the temporary guardianship hearing contesting both
the guardianship and his deposition in relation to the guardianship. The
application for guardianship clearly indicated that Bays’s attorney would seek the
return of funds that had been removed by Okumu from Bays’s bank accounts.
Okumu in fact attended the temporary guardianship hearing with counsel, and his
counsel questioned multiple witnesses at the hearing. After the trial court issued
its order which Okumu now complains of, he then filed multiple post-hearing
motions contesting the guardianship. In short, Okumu has been granted his
opportunity to be heard and had his day in court. See Johnson, 654 S.W.2d at
418. We overrule this portion of Okumu’s second issue.
C. The Propriety of the Trial Court’s Order that Okumu Deposit
Funds into the Court’s Registry
In part of his third issue, Okumu contends that the trial court’s order
requiring him to deposit funds withdrawn by him or by Bays into the court’s
registry is ―void because it was not supported by sufficient pleading or sufficient
evidence and was vague and ambiguous.‖
The trial court’s order appointing the temporary guardians ordered that
Okumu ―shall deliver all funds withdrawn by him or payable to him, or cash
withdrawals by [Bays] from any sole or joint accounts, certificates of deposit of
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[Bays] from October 27, 2008 to the present, to the Registry of this Court.‖ The
order also stated that the monies deposited into the court’s registry were to
include, but not be limited to: $19,000.00 withdrawn from First Financial Bank,
$120,047.90 withdrawn from JPMorgan Chase Bank, $99,465.84 withdrawn from
Bank of America, and $64,932.08 withdrawn from Woodforest National Bank.
Although it is difficult to decipher exactly what Okumu is complaining of in
this issue, we conclude that the court requiring Okumu to deposit these funds
into the court registry does not implicate any of the theories seemingly argued by
him. In reaching this conclusion, we recognize that a trial court does have some
inherent authority to order an individual to deposit funds into the court’s registry.
See Castilleja v. Camero, 414 S.W.2d 431, 433 (Tex. 1967) (holding that when
disputed funds are in danger of being lost or depleted, the court can order
payment of disputed funds into its registry until ownership is determined);
N. Cypress Med. Ctr. Operating Co. v. St. Laurent, 296 S.W.3d 171, 178 (Tex.
App.—Houston [14th Dist.] 2009, no writ) (same). This is especially true when,
as in this case, a complainant can show a dispute about funds and show that the
funds are in danger of being depleted. See Castilleja, 414 S.W.2d at 433–34.
In this case, the guardian ad litem gave detailed testimony regarding
almost $300,000 that had been withdrawn from various bank accounts held in
Bays’s name or in joint accounts held in both Bays’s and Okumu’s names. The
guardian ad litem testified extensively about her investigation of Bays’s assets
and said that she believed Okumu had wrongfully removed funds from accounts
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owned by Bays. In addition, the guardian ad litem testified that Bays had signed
deeds and quitclaim deeds of her property to Okumu. All of this was done at a
time when Bays was ninety-three years old and in poor physical and mental
health. Indeed, the immediate danger of serious impairment to her and the
imminent danger of loss to her property served as the bases for the original
suggestion by the social worker that Bays was in need of a guardian. More
specifically, the suggestion of guardianship stated that since the time Bays had
been unable to care for her own physical health and manage her own financial
affairs, she had been giving money to Okumu, had revoked her son’s power of
attorney appointment, and had granted that power to Okumu. The suggestion
further provided that it was not clear why Bays had done such things and that
Okumu had a questionable background and had been disbarred in Indiana.
Furthermore, the application for temporary guardianship specifically requested
the relief that Okumu be ordered to place these funds in the court’s registry. We
hold that the trial court did not err by ordering Okumu to place these funds in the
court’s registry and that its order is supported by the evidence and not void. See
Castilleja, 414 S.W.2d at 433–34. We overrule this portion of Okumu’s third
issue.
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D. Contempt Issues
In the remaining parts of his second and third issues, and in his fourth
issue, Okumu makes various arguments regarding the trial court having found
him in contempt. We conclude that we have no jurisdiction to address these
issues.
Contempt proceedings are not appealable because they ―are not
concerned with disposing of all claims and parties before the court, as are
judgments; instead, contempt proceedings involve a court’s enforcement of its
own orders, regardless of the status of the claims between the parties before it.‖
In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915–16 (Tex. App.—Fort
Worth 2007, orig. proceeding); see also Norman v. Norman, 692 S.W.2d 655,
655 (Tex. 1985) (holding that court of appeals had no jurisdiction over an appeal
from an order finding a party not in contempt); In re Naylor, 120 S.W.3d 498, 500
(Tex. App.—Texarkana 2003, orig. proceeding) (―Decisions in contempt
proceedings are not appealable.‖). A ruling regarding a contempt proceeding
can be challenged only by an original proceeding. In re B.A.C., 144 S.W.3d 8, 11
(Tex. App.—Waco 2004, no pet.). Thus, because Okumu’s remaining portions of
his second and third issues and his entire fourth issue are an attempted appeal
of the trial court’s contempt proceedings, we have no jurisdiction to address
them. We therefore dismiss these issues.
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IV. CONCLUSION
Having overruled Okumu’s first issue and portions of his second and third
issues, and having dismissed his remaining issues for lack of jurisdiction, we
affirm the trial court’s order.
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: June 23, 2011
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