in the Guardianship of Sterling MacEr, an Incapacitated Person

Vacated in Part and Reversed and Remanded in Part and Opinion filed August
2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00300-CV
IN THE GUARDIANSHIP OF STERLING MACER, AN INCAPACITATED
PERSON
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 15-CPR-028121
OPINION
This is an appeal of a probate court’s order awarding reimbursement of
attorney’s fees and expenses to one of the parties in this suit, a guardianship
proceeding. Because the probate court’s order did not comply with certain statutory
requirements, it is void in part. Further, the probate court erred in awarding certain
attorney’s fees because there is no evidence to support an implied finding of fact.
We therefore vacate the order in part and reverse in part and remand the case to the
probate court.
Background
Sterling R. Macer, Sr. and his wife, Delores, had three children: Deanne
Hodge, Sterling R. Macer, Jr., and Dawn Macer. In 2010, while living in Missouri,
Sterling Sr. appointed Sterling Jr. and Deanne co-attorneys-in-fact under a durable
power of attorney to act in a fiduciary capacity on Sterling Sr.’s behalf. In 2011,
Sterling Sr. and Delores moved from Missouri to Texas.
Delores began this guardianship proceeding in 2015 by moving to have the
probate court appoint an attorney ad litem to represent Sterling Sr.’s legal interests.
Delores also applied to act as temporary guardian of Sterling Sr.’s person and estate.
The probate court appointed an attorney ad litem, a guardian ad litem, a
receiver, and a temporary guardian of the person. The court also created a
management trust for Sterling Sr.’s funds and assets. The probate court declared
Sterling Sr. totally incapacitated.
Sterling Jr. intervened in the guardianship proceeding and filed a request for
reimbursement of attorney’s fees and expenses. Based on the evidence attached to
the request, Sterling Jr. sought to recover (a) fees and expenses incurred in a prior
Missouri lawsuit initiated by Delores regarding Sterling Sr.’s retirement funds, and
(b) fees and expenses incurred to date in ancillary Texas litigation. Sterling Jr.
contended that he was entitled to reimbursement of fees and expenses as to those
proceedings because he was acting as attorney-in-fact for Sterling Sr. in an effort to
fulfill Sterling Jr.’s fiduciary obligation to defend and protect Sterling Sr.’s life
savings.
The probate court denied Sterling Jr.’s request by written order signed April
1, 2016. More than two months later, Sterling Jr. moved for reconsideration and
also filed a supplement to his reimbursement request. In the supplemental motion,
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Sterling Jr. sought additional attorney’s fees and expenses he alleged were incurred
in the guardianship proceeding. The probate court granted Sterling Jr.’s motion for
reconsideration and signed an order on February 20, 2017 authorizing Sterling Jr.,
his attorney, and two law firms retained as local counsel in the Missouri and Texas
proceedings, to receive $131,631 in reimbursement paid from the funds of Sterling
Sr.’s estate by the trustee of the management trust. The order did not purport to
resolve any pending claims or issues in the guardianship proceeding other than
Sterling Jr.’s request for reimbursement of fees and expenses.
Sterling Sr. died approximately one month after the trial court’s February 20,
2017 reimbursement order.1 Deanne and Delores appeal the probate court’s
February 20, 2017 order.
Analysis
Deanne and Delores challenge the merits of the probate court’s order in
numerous respects. Before we address those arguments, we must first ascertain
whether we have jurisdiction over the appeal. Our jurisdiction turns on whether the
probate court’s order is final for purposes of appeal. At our request, the parties filed
supplemental briefing on the jurisdictional question.2
1
Following Sterling Sr.’s death, the management trust terminated, Tex. Est. Code
§ 1301.203(b)(3), and the probate court signed orders discharging the guardian ad litem and
receiver.
2
“We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte.”
In re Estate of Gaines, 262 S.W.3d 50, 62 n.13 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
3
A. Appellate Jurisdiction
1. The “complex area” of appellate jurisdiction over interlocutory
probate orders
As a general rule—with few, mostly statutory exceptions—a party may appeal
only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Under Lehmann, when a conventional trial on the merits has not occurred,
an order or judgment is considered final for purposes of appeal only if it: (1) actually
disposes of every pending claim and party; or (2) clearly and unequivocally states
that it finally disposes of all claims and all parties. Id. at 205.
Probate proceedings, however, are an exception to the “one final judgment”
rule. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). A probate proceeding
consists of “a continuing series of events,” and later decisions regarding
administration of an estate or guardianship of a ward necessarily may be based on
earlier decisions in the proceeding. See In re Estate of Adams, No. 14-12-00064-
CV, 2013 WL 84925, at *2 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.)
(mem. op.). In such cases, “‘multiple judgments final for purposes of appeal can be
rendered on certain discrete issues.’” De Ayala, 193 S.W.3d at 578 (quoting
Lehmann, 39 S.W.3d at 192). Therefore, probate orders need not dispose of all
pending claims and parties in the entire proceeding to be appealable. See SJ Med.
Ctr., L.L.C. v. Estahbanati, 418 S.W.3d 867, 870-71 (Tex. App.—Houston [14th
Dist.] 2013, no pet.); see also De Ayala, 193 S.W.3d at 578 (the exception for probate
proceedings from the one-final-judgment rule exists, in part, to allow appellate
review of controlling, intermediate issues in order to prevent an error from harming
later phases of the proceeding).
4
In De Ayala, the Supreme Court of Texas reaffirmed the test announced in
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995), for determining appellate
jurisdiction of an “ostensibly interlocutory probate order”:
If there is an express statute, such as the one for the complete heirship
judgment, declaring the phase of the probate proceedings to be final and
appealable, that statute controls. Otherwise, if there is a proceeding of
which the order in question may logically be considered a part, but one
or more pleadings also part of that proceeding raise issues or parties not
disposed of, then the probate order is interlocutory.
De Ayala, 193 S.W.3d at 578 (internal quotation omitted).3 Accordingly, to
determine whether a probate court order is final for purposes of appeal, we first give
controlling effect to an express statute declaring the phase of the probate proceeding
to be final and appealable. Id. If no express statute controls, a probate court order
is final and appealable only if it “dispose[s] of all parties or issues in a particular
phase of the proceedings.” Id. at 579.
2. The reimbursement order
We first consider whether a controlling statute declares an order such as the
one disposing of Sterling Jr.’s motion to be final for appellate purposes. See id. at
578-79. Section 1157.057 of the Estates Code provides that an order signed by a
“court acting on a claim . . . has the effect of a final judgment.” A claim, for purposes
3
De Ayala concerned a decedent’s will and estate, not a guardianship proceeding.
However, because guardianship proceedings, like proceedings involving a decedent’s will, must
be filed and heard in a court exercising original probate jurisdiction, Tex. Est. Code § 1022.001(a),
we determine our appellate jurisdiction over the reimbursement order in this case under De Ayala’s
test regarding appealability of interlocutory probate orders. See, e.g., In re Estate of Calkins, Nos.
01-11-00731-734-CV, 2013 WL 4507923, at *2-3 (Tex. App.—Houston [1st Dist.] Aug. 22, 2013,
no pet.) (per curiam) (mem. op.) (applying De Ayala in review of trial court’s order denying motion
to dismiss guardianship); In re Guardianship of Glasser, 297 S.W.3d 369, 374 (Tex. App.—San
Antonio 2009, no pet.) (applying De Ayala in review of probate court’s orders authorizing an
attorney ad litem to hire litigation counsel and authorizing the payment of fees to the attorney ad
litem and litigation counsel).
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of this statute, is one made against the guardianship estate. See generally Tex. Est.
Code ch. 1157, subch. A. Concerning guardianships, the Estates Code defines
“claim” to include “a liability against the estate of an incapacitated person.” Id.
§ 1002.005(1). The code establishes several procedural requirements applicable to
claims against guardianship estates, including presentment of the claim to the
guardian of the estate or the clerk, as well as inclusion of a supporting affidavit. Id.
§§ 1157.001, 1157.002, 1157.004. After a claim against a ward’s estate has been
presented to, and allowed by, the guardian of the estate, the claim must be filed with
the county clerk, who will then enter the claim on the claim docket. Id. § 1157.053.
The court shall then approve or reject the claim; the court’s order documenting its
action on the claim has the effect of a final judgment. Id. §§ 1157.055, 1157.057(b)
(stating that “an order under Subsection (a) has the effect of a final judgment”).
In signing the February 20, 2017 reimbursement order, the probate court did
not “act[] on a claim” within the meaning of Chapter 1157. Sterling Jr.’s request for
reimbursement—insofar as he sought reimbursement for fees and expenses incurred
as Sterling Sr.’s attorney-in-fact relating to the Missouri and Texas litigation—is an
assertion of a liability against the guardianship estate. Tex. Est. Code § 1002.005(1).
Thus, Sterling Jr. was required to present his request as a “claim” and comply with
the procedures outlined in Chapter 1157. However, there is no indication that
Sterling Jr. invoked or complied with Chapter 1157. Because claims procedures
were not followed here, the trial court’s order is not fairly characterized as one
“acting on a claim” under section 1157.057(a). Therefore, section 1157.057(b) does
not apply and hence does not require that we give the court’s order the effect of a
final judgment.
To the extent Sterling Jr.’s motion or supplemental motion sought fees and
expenses incurred in connection with the guardianship proceeding, those alleged
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fees and expenses may be recoverable independently of Chapter 1157’s claims
procedures. See, e.g., Tex. Est. Code § 1155.054. For example, and as we discuss
below, the trial court’s award included fees incurred by Sterling Jr. in seeking
appointment as Sterling Sr.’s guardian and otherwise participating in the
guardianship proceeding. See id. However, no statute controls the finality for appeal
purposes of such an award.
Because no controlling statute declares the type of order at issue final and
appealable, the order is appealable only if it “dispose[s] of all parties or issues in a
particular phase of the proceedings.” De Ayala, 193 S.W.3d at 579. An order that
“does not end a phase of the proceedings, but sets the stage for the resolution of all
proceedings, . . . is interlocutory.” Id. As the Supreme Court of Texas has noted,
there is no clear test to determine whether an interlocutory probate order disposes of
all parties or issues “in a particular phase of the proceedings,” an issue that presents
“inherent difficulties.” Id. at 578-79; see also id. at 578 (noting that adoption of the
Crowson test was an effort to alleviate confusion or ambiguity in the law under the
court’s earlier “substantial right” test and to clarify the “complex area” of appellate
jurisdiction in probate matters).
The question, then, is whether the probate court’s order reimbursing Sterling
Jr. for fees and expenses finally resolved all issues in a discrete phase of the
guardianship proceeding. We conclude that it did. In Sterling Jr.’s “Request for
Reimbursement of Reasonable Attorneys’ Fees and Expenses,” as supplemented, the
only issues raised were Sterling Jr.’s entitlement to reimbursement of the attorney’s
fees and expenses he (and the attorneys he retained) allegedly incurred on his father’s
behalf under the power of attorney and his entitlement to fees and expenses incurred
during the guardianship proceeding. The probate court’s reimbursement order fully
addresses and resolves those issues by ordering the management trustee to pay
7
Sterling Jr. and his attorneys their incurred fees and expenses. Because no issues
raised in Sterling Jr.’s request remained unresolved, the probate court’s
reimbursement order concluded a discrete phase of the guardianship proceeding. See
In re Guardianship of Person and Estate of A.M.K., No. 04-08-00268-CV, 2009 WL
1028074, at *2 (Tex. App.—San Antonio Apr. 15, 2009, no pet.) (mem. op.) (when
no issues raised in a motion for attorney’s fees remain unresolved, the order
awarding fees “conclude[s] a discrete phase of the guardianship proceedings and
therefore is appealable”); In re Guardianship of Humphrey, No. 12-06-00222-CV,
2008 WL 2445503, at *3 (Tex. App.—Tyler June 18, 2008, pet. denied) (mem. op.)
(order authorizing attorney ad litem fees concluded a discrete phase of the
guardianship proceeding).
We hold that the February 20, 2017 order authorizing Sterling Jr.’s
reimbursement of fees and expenses is an appealable probate order. We therefore
have jurisdiction over the appeal of the order.
B. Claims Against a Ward’s Estate
Both Delores and Deanne argue that the probate court erred in granting
Sterling Jr.’s reimbursement request because Sterling Jr. failed to follow the
statutory procedures governing claims against a ward’s estate, and that the court’s
resulting order is therefore void because it grants relief that should have been, but
was not, presented through the claims process.
Sterling Jr. sought reimbursement of fees and expenses he allegedly incurred
prior to the guardianship proceeding as attorney-in-fact on his father’s behalf. As
indicated above, Sterling Jr.’s request is in substance a claim against Sterling Sr.’s
guardianship estate, and claims of liability made against a ward’s estate and orders
approving or rejecting such claims are subject to specific statutory requirements.
Sterling Jr. did not follow the statutory requirements for presenting his claim, nor
8
does our record establish that the guardian of the estate allowed or rejected the claim.
See Tex. Est. Code §§ 1157.001, 1157.051. Under these facts, the portion of the
probate court’s February 20, 2017 order authorizing reimbursement for Sterling Jr.’s
fees and expenses incurred in the Missouri litigation and Texas litigation is void.
See Clements v. Chajkowski, 208 S.W.2d 841, 843 (Tex. 1948) (order allowing claim
against decedent’s estate was void when claim had not been presented to, or rejected
by, estate administrator); Cross v. Old Republic Sur. Co., 983 S.W.2d 771, 774 (Tex.
App.—San Antonio 1998, pet. denied) (“If a claimant fails to present a liquidated
claim to the administrator, any resulting order of payment is void.”).
We sustain, in part, Deanne’s first issue and Delores’s second issue.
C. Fees and Expenses Incurred in Guardianship Proceeding
According to the evidence attached to Sterling Jr.’s supplemental motion, not
all of Sterling Jr.’s requested fees and expenses were incurred outside the
guardianship proceeding. Sterling Jr. filed a “Supplemental Motion for
Reimbursement of Reasonable Attorneys’ Fees and Expenses,” seeking attorney’s
fees and expenses incurred from January 2016 to July 2016, which is during the
pendency of the guardianship proceeding. His supplemental motion is somewhat
inconsistent because, on the one hand, Sterling Jr. expressly disavowed that he was
seeking an “award” of attorney’s fees and stated that he sought only
“reimbursement” of fees and costs incurred as attorney-in-fact. That is, his
supplemental motion purported to seek reimbursement only for fees and expenses
that are properly characterized as a claim against Sterling Sr.’s estate. Yet, on the
other hand, in support of his supplemental motion, Sterling Jr. attached billing
records from one of his attorneys, which appear to document fees and expenses
incurred in connection with Sterling Jr.’s participation in the guardianship
proceeding. To the extent that some of the fees and expenses awarded in the
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February 20, 2017 reimbursement order were incurred during the guardianship
proceeding and are not properly characterized as claims against the estate, they
potentially may be recoverable separate from the claims procedures.
For example, Texas Estates Code section 1155.054 provides that a court may
authorize payment of reasonable and necessary attorney’s fees to an attorney who
represents the person who files, as relevant here, an application to be appointed
guardian of the proposed ward. See Tex. Est. Code § 1155.054(a); see also In the
Guardianship of Burley, 499 S.W.3d 196, 199-200 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (trial court permitted to authorize payment of attorney’s
fees under section 1155.054). Such fees, however, are permitted only when the trial
court finds that the applicant “acted in good faith and for just cause in the filing and
prosecution of the application.” Tex. Est. Code § 1155.054(c).
Appellants argue that the February 20, 2017 order is error because the fees
Sterling Jr. allegedly incurred in connection with the guardianship proceeding could
not have been based on any provision other than section 1155.054, and the court did
not find (or there is no evidence to support an implied finding) that Sterling Jr. “acted
in good faith and for just cause” as an applicant. We agree.
Though the record shows that Sterling Jr. filed an application to be appointed
Sterling Sr.’s guardian, the probate court here did not make any findings that Sterling
Jr. acted in good faith and for just cause in the filing and prosecution of the
application. Id. Our record contains a request for findings of fact and conclusions
of law filed by Delores, but not Deanne. Further, the record is unclear whether
Delores’s request was timely.
In any event, assuming that neither Delores nor Deanne filed timely requests
for findings of fact and conclusions of law, we will imply a “good faith and just
cause” finding in support of the order. See Sixth RMA Partners v. Sibley, 111 S.W.3d
10
46, 52 (Tex. 2003). In that instance, and when, as here, a reporter’s record is filed,
an implied finding is not conclusive and an appellant may challenge it for legal and
factual insufficiency. Id. Both Delores and Deanne challenge the February 20, 2017
order on no evidence grounds. We have reviewed the relevant reporter’s record and
agree with appellants that Sterling Jr. presented no evidence that he “acted in good
faith and for just cause in the filing and prosecution of the application.” Tex. Est.
Code § 1155.054(c). Accordingly, we cannot affirm any portion of the February 20,
2017 order under section 1155.054. Sterling Jr. cites no other statutory basis to
support the court’s order awarding fees and expenses incurred in connection with
the guardianship proceeding.
We therefore sustain, in part, Deanne’s third issue and Delores’s third issue,
to the extent the probate court awarded Sterling Jr.’s attorney’s fees and expenses
under section 1155.054. Accordingly, we reverse that part of the probate court’s
February 20, 2017 order that authorizes Sterling Jr.’s attorney’s fees and expenses
incurred during the guardianship proceeding.
D. Appellants’ Remaining Issues
Delores and Deanne challenge the probate court’s order in other respects. We
address them briefly.
1. Plenary power
Appellants argue that the probate court’s February 20, 2017 reimbursement
order is void in its entirety because the court signed it after its plenary power expired
over this phase of the proceeding. According to appellants, when the probate court
signed its April 1, 2016 order denying Sterling Jr.’s request, that order was final and
appealable under De Ayala because it disposed of all issues in a discrete phase of the
proceedings. Citing the rule of civil procedure governing a court’s plenary power
11
after a final judgment is signed, appellants contend that the probate court’s plenary
power over the April 1, 2016 order expired thirty days later, and that the probate
court had no authority to change its ruling after that date. See Tex. R. Civ. P. 329b(d)
(“The trial court, regardless of whether an appeal has been perfected, has plenary
power to grant a new trial or to vacate, modify, correct, or reform the judgment
within thirty days after the judgment is signed.”). Because the April 1, 2016 order
was appealable at that time, appellants contend, Sterling Jr. had thirty days to file a
notice of appeal.4 Sterling Jr. did not file a notice of appeal. Rather, he filed a
motion for reconsideration of his request for reimbursement and did so on June 16,
2016, beyond thirty days from the order denying relief.5 The probate court granted
Sterling Jr.’s request for reconsideration on August 15, 2016 and signed an order
authorizing Sterling Jr.’s reimbursement on February 20, 2017.
We have already concluded that the February 20, 2017 order was appealable
under De Ayala because it disposed of all issues in a discrete phase of the proceeding.
The probate court’s earlier April 1, 2016 order disposed of the same issues and was,
therefore, also appealable under De Ayala. See A.M.K., 2009 WL 1028074, at *2.
But the fact that the April 1, 2016 order—which is otherwise an interlocutory
order—is considered final for purposes of appeal does not deprive the probate court
of plenary power over the entire proceeding, including the court’s prior rulings. See
Moring v. Inspectorate Am. Corp., 529 S.W.3d 145, 150 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied) (“The trial court holds continuing authority to reconsider
4
A notice of appeal is due within thirty days of the date the order or judgment is signed,
unless, among other exceptions, the appeal is accelerated. Tex. R. App. P. 26.1(b). Appeals from
interlocutory orders are accelerated. Tex. R. App. P. 28.1(a). To the extent the April 1, 2016 order
was final and appealable under De Ayala, we need not, and do not, decide for purposes of this
appeal whether the deadline to file a notice of appeal was twenty days as opposed to thirty days.
5
A motion for new trial or other motion seeking to modify a final order, or a request for
findings of fact, will not extend the time to perfect an accelerated appeal. Tex. R. App. P. 28.1(b).
12
its interlocutory orders while it has plenary power over the case.”). Sterling Jr. had
the right to timely appeal the April 1, 2016 order under De Ayala. He chose not to
appeal and instead moved for reconsideration. At the time Sterling Jr. filed his
motion for reconsideration it was too late for him to have timely appealed the April
1, 2016 order. Had the probate court denied the motion for reconsideration instead
of granting it, Sterling Jr. may have forfeited his chance to appeal the April 1, 2016
order before the rendition of a final judgment in the guardianship proceeding. See
In the Estate of Nunu, No. 14-17-00495-CV, 2018 WL 3151231, at *6-7 (Tex.
App.—Houston [14th Dist.] June 28, 2018, no pet. h.) (mem. op.) (dismissing
untimely appeal of probate court’s order deemed final for purposes of appeal under
De Ayala). Sterling Jr.’s decision to forego appeal of the April 1, 2016 order,
however, has no bearing on the probate court’s continuing jurisdiction over the case
or over the April 1, 2016 order. The court still retained plenary power over the
guardianship proceeding when it reconsidered its prior order denying Sterling Jr.’s
request and signed an order authorizing reimbursement. Moring, 529 S.W.3d at
150.6
We overrule Deanne’s second issue and Delores’s fourth issue.
2. Delores’s procedural challenges
Delores raises two additional appellate issues: (1) the probate court erred by
refusing Delores’s request to prepare findings of fact and conclusions of law; and
(2) the probate court abused its discretion by failing to hold an evidentiary hearing
on Sterling Jr.’s request for reimbursement. Both issues, if meritorious, would result
in remand of the case, which is the remedy granted by part of our disposition of this
6
Once the probate court granted reconsideration and signed the February 20, 2017 order
changing the outcome of the issue, the appellate deadlines began from the date of that order as to
the aggrieved parties, Delores and Deanne.
13
appeal. See Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 615-16 (Tex.
App.—Dallas 2003, pet. denied) (remand for findings of fact and conclusions of
law); In re Guardianship of Laroe, No. 05-15-01006-CV, 2017 WL 511156, at *17
(Tex. App.—Dallas Feb. 8, 2017, pet. denied) (mem. op.) (indicating that remand is
appropriate remedy for failure to hold evidentiary hearing on contested motion in
guardianship proceeding).
Accordingly, we do not reach Delores’s remaining issues. See Johnson v. City
of Houston, 203 S.W.3d 7, 14 n.15 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied).
Conclusion
For the above reasons, we vacate the portions of the probate court’s order
reimbursing Sterling Jr.’s fees and expenses claimed to have been incurred in
connection with the Missouri litigation and Texas litigation. We reverse the
remainder of the order authorizing Sterling Jr.’s fees and expenses incurred during
the pendency of the guardianship proceeding. We remand the case to the probate
court for further proceedings consistent with this opinion.
/s/ Kevin Jewell
Justice
Panel consists of Justices Busby, Brown, and Jewell.
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