in Re: Peggy Fower Redding

MARY'S OPINION HEADING

                                                NO. 12-07-00098-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§                     

IN RE:

§                      ORIGINAL PROCEEDING

PEGGY FOWLER REDDING

§

MEMORANDUM OPINION

            Relator, Peggy Fowler Redding, petitions for a writ of mandamus ordering the trial court to vacate its order appointing the real party in interest, Doris Fowler, permanent guardian of Relator’s father.¹  Relator contends the order is void, because the trial court lacked jurisdiction.  We conditionally grant the writ of mandamus.

Background

            On August 14, 2006, Relator applied for temporary guardianship of her father, William Neal Fowler.  The trial court appointed her temporary guardian pending the hearing set on her temporary guardianship application for August 21, 2006.  Two days after Relator filed her application, Doris Fowler, William Neal Fowler’s spouse, filed her application for appointment as temporary guardian and as permanent guardian.  On the date set for hearing Relator’s application for temporary guardianship, Doris Fowler filed an amended petition for permanent guardianship.  At the conclusion of the hearing held on August 21, 2006, the trial court appointed Fowler permanent guardian of her husband’s person and estate.  On September 18, 2006, the trial court signed the order appointing Doris Fowler permanent guardian of the person and estate of William Neal Fowler.  The order recited that the application came on to be heard on August 21, 2006.  August 28, 2006 was the return date shown on the citation on Doris Fowler’s application for appointment as permanent guardian. 

Availability of Mandamus

            Mandamus is appropriate if the trial court has abused its discretion, and the relator has no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, that is when it acts in an arbitrary and unreasonable manner.  City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).  A trial court abuses its discretion in issuing an order when it lacks jurisdiction to issue the order.  In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).  When an order is void, the relator need not show it did not have an adequate appellate remedy.  Id.

The Trial Court’s Jurisdiction

            Relator contends the trial court lacked jurisdiction to render the order appointing Doris Fowler permanent guardian, because as the order plainly states, it was made before the Monday following the expiration of the ten day period beginning the date of service of notice and citation.  See Tex. Prob. Code Ann. § 633(f) (Vernon Supp. 2006) (prescribes when a trial court may act on an application for creation of a guardianship).  Relator maintains that, because the order was rendered before the return date, it is void. Relator also contends the order is void because neither Doris Fowler nor her attorney filed an affidavit stating that the required notice had been sent to the proposed ward’s children.  See id. § 633 (d-1)(2) (requiring filing of affidavit sworn by applicant or applicant’s attorney that notice was mailed as required by section 633, subsection (d)).

Applicable Law

            The Texas Probate Code confers jurisdiction on county courts to appoint guardians for incapacitated persons.  Id. § 605 (Vernon 2003); see also id. § 606 (Vernon Supp. 2006).  Probate proceedings, however, including the appointment of guardians, are not within the common law jurisdiction of the courts.  The constitution, and the laws enacted pursuant to it relating to guardianships, define and limit the powers of the probate courts and they possess no other powers except those there enumerated. 42 Tex. Jur. 3d Guardianship and Conservatorship § 18 (2005).  The power of a court to appoint a guardian is a special power conferred by statute.  Compliance with the statute is a condition precedent to the valid exercise of that power and is jurisdictional.  Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.–San Antonio 1989, writ dism’d) (emphasis added).

            Regarding the procedure the court must follow in creating a permanent guardianship, the Probate Code provides, as follows:

The court may not act on an application for the creation of a guardianship until the Monday following the expiration of the 10-day period beginning the date service of notice and citation has been made as provided by Subsections (b), (c), and (d)(1) of this section and the applicant has complied with Subsection (d-1) of this section.

Tex. Prob. Code Ann. § 633(f). “Section 633 does not set out optional procedures; only through compliance with Section 633 of the Texas Probate Code is the trial court’s jurisdiction invoked.”  In re Erickson, 208 S.W.3d 737, 740 (Tex. App.–Texarkana 2006, no pet.).

            A judgment is void when the rendering court has no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.  Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987).  “[A] void judgment is one entirely null within itself and which is not susceptible of ratification or confirmation and its nullity cannot be waived.”  Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (1932).  To be void, a judgment’s invalidity must appear from the record.  Iles v. Walker, 132 Tex. 6, 120 S.W.2d 418, 421 (Tex. 1938). 

Discussion

            Doris Fowler filed her application for temporary guardianship and permanent guardianship on August 16, 2006.  Under Section 633(f), the earliest date the court could act on that application was August 28, 2006.  The record affirmatively shows that the court acted on Doris Fowler’s application for permanent guardianship by rendering judgment appointing her permanent guardian of the ward’s person and estate on August 21, 2006.  The court signed a written order on September 18, 2006. The date of judgment, however, is the date of its oral pronouncement in open court on August 21, 2006, not the date of the signing of the written order.  In re Erickson, 208 S.W.3d at 741; see also In re Joyner, 196 S.W.3d 883, 886-87 (Tex. App.–Texarkana 2006, pet. denied).

            Doris Fowler argues that the order is not void despite its premature rendition and notwithstanding her failure to satisfy several other requisites of Section 633, because all the interested persons were present at the August 21 hearing, including the attorney appointed to represent the proposed ward, and all the witnesses agreed that a permanent guardianship was necessary.  Relators maintain that the proposed ward was not present and the judgment does not reflect that he was present at the hearing.²  However, even if the facts surrounding the hearing are as Fowler contends, we must still conclude the court lacked jurisdiction. 

            There is no alternative procedure to Section 633 in the Probate Code, nor do we find any authority for the waiver of its requirements.  The Probate Code does not provide a procedure for waiver of jurisdictional requirements by the proposed ward.  Erickson, 208 S.W.3d at 742.  And an interested person may not waive those requirements on behalf of the proposed ward.  Id. at 743; see also In re Mask, 198 S.W.3d 231, 234 n.3 (Tex. App.–San Antonio 2006, orig. proceeding). Moreover, the hearing was expressly set on Relator’s application for temporary guardianship.  Doris Fowler filed her amended application for permanent guardianship on the day of the hearing.  From the record, it appears extremely doubtful that, when the hearing commenced, either the court or counsel considered Fowler’s permanent guardianship application to be before the court.  The parties behaved as though it was a hearing on Relator’s application for temporary guardianship.  Relator’s counsel opened as one would expect on a hearing on Relator’s application. In closing, Relator’s counsel asked the court to appoint Relator temporary guardian.  Not until his concluding sentence before the court entered judgment did Fowler’s attorney inform the court, “Your honor, we’re not asking for a temporary guardianship.  We are asking for a permanent.”  There was no waiver of jurisdictional requirements.

            We hold that in rendering the order appointing Doris Fowler permanent guardian on August 21, 2006, on her application of August 16, 2006, the trial court acted before it had acquired jurisdiction to order the permanent appointment.  Therefore, the order is void. 

Disposition

            Because the order appointing Doris Fowler guardian of the person and estate of William Neal Fowler is void, we conditionally grant the writ of mandamus.  We are confident that the trial court will promptly vacate the order, and the writ will issue only if it fails to do so within ten days of the date of this opinion and corresponding order.  Immediately upon compliance with our order, the trial court shall furnish the Clerk of this Court a certified copy of its order evidencing such compliance.

                                                                                                    BILL BASS

                                                                                                            Justice

Opinion delivered April 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)

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¹ Respondent is the Honorable D. Matt Livingston, Judge of the County Court at Law Number 1, Henderson County, Texas.

² A proposed ward must be present at a hearing to appoint a guardian unless the court, on the record or in the order, determines that a personal appearance is not necessary.  Tex. Prob. Code Ann. § 685 (Vernon 2003).