Guadalupe Lugo A/K/A Tish Lugo v. Regions Bank, Ginger Lott,temporary Guardian of the Person and the Estate Pending Contest and Marissa Garcia Guardian Ad Litem ( 2022 )

Opinion issued December 22, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00403-CV
———————————
IN THE GUARDIANSHIP OF SAMANTHA LUGO,
AN INCAPACITATED PERSON
On Appeal from Probate Court No. 4
Harris County, Texas
Trial Court Case No. 382193
MEMORANDUM OPINION ON REHEARING
Appellee, Marissa Garcia, guardian ad litem for Samantha Lugo, an
incapacitated person (“Samantha”), has filed a motion for rehearing of our July 26,
2022 opinion and judgment.1 We grant the motion for rehearing, withdraw our
opinion and judgment of July 26, 2022, and issue this opinion and new judgment in
their stead.
Appellant, Guadalupe Lugo, also known as Tish Lugo (“Tish”), challenges
the trial court’s order denying her bill of review2 to set aside a prior order removing
her as the guardian of the person and estate of her sister, Samantha.3 In two issues,
Tish contends that the trial court erred in denying her bill of review.
We dismiss in part and reverse, render, and remand in part.
Background
Tish was appointed as the guardian of the person and estate of Samantha in
2016. In the order appointing Tish as guardian of Samantha’s person and
Samantha’s estate, the trial court granted Tish “full authority” over Samantha
“except as provided by law.” The order also gave Tish “the right to physical
possession of” Samantha and the right “to establish [Samantha’s] legal domicile.”4
1
See TEX. R. APP. P. 49.1. In her motion for rehearing, Garcia requested that this
Court modify its judgment so that “appellate court costs” are not “taxed” against
her.
2
See TEX. EST. CODE ANN. § 1056.101.
3
Appellees are Regions Bank (the “Bank”), Ginger S. Lott, temporary guardian
pending contest of the person and estate of Samantha, and Garcia, guardian ad litem
for Samantha.
4
See TEX. PROP. CODE ANN. § 1151.051(c)(1).
2
In June 2020, the Bank, the trustee of a trust created for Samantha’s benefit
under Texas Property Code chapter 1425 (the “trust”), filed an application to remove
Tish as the guardian of Samantha’s person and a motion to terminate the
guardianship of the estate of Samantha.6 In its first amended application and motion,
the Bank explained that Samantha, in infancy, “suffered a brain injury which left her
incapacitated for the remainder of her life,” and the settlement of a medical
malpractice lawsuit filed by Samantha’s parents led to the creation of the trust.
The Bank also recounted certain interactions it had with Tish about
Samantha’s guardianship over a couple of years. According to the Bank, Tish
informed it in May 2018 that she intended to build a home for Samantha on an
unimproved tract of land located on Memorial Drive in Houston, Texas (the
“Memorial tract”), property owned by Tish’s and Samantha’s mother (the “mother”).
Tish planned to build a home that “would accommodate [Samantha’s] physical
needs and oversized wheelchair.” At Tish’s request, the Bank “distributed $43,000”
to her from the trust for “architectural plans” and “to pay $25,000 towards the
pouring of a slab for the new residence.” But Tish did not mention the $43,000
5
See id. § 142.001–.010.
6
When the trial court appointed Tish as guardian of Samantha’s estate, it did so to
explore the possibility of converting the trust into a “special needs trust.” See 42
U.S.C. § 1396p(d)(4)(A); see also TEX. EST. CODE ANN. § 1151.051(c)(5).
3
distribution from the trust in her annual guardian’s report on the location, condition,
and well-being of Samantha.7
The Bank objected to Tish’s annual report because it failed to mention the
$43,000 distribution. After Tish amended the report by adding a footnote explaining
that the funds had been distributed to her in her individual capacity to reimburse her
for the use of her own funds to pay “architects, engineers, and builders to develop
plans for housing which could best accommodate [Samantha’s] needs,” the Bank
withdrew its objection, and the trial court approved Tish’s annual report.
The Bank alleged that Tish, in January 2019, asked for “another distribution
from the trust to build” the Memorial tract home. The Bank responded that it would
“need to take a lien against the Memorial tract in an amount equal to the distribution
amount” before it would distribute funds from the trust for that purpose. Tish then
said that the plans to build a home on the Memorial tract “were off” and “she was
moving to Puerto Rico.”
According to the Bank, in April 2019, Tish applied to transfer Samantha’s
guardianship to a foreign jurisdiction, Puerto Rico.8 In her application, Tish
“asserted that it was necessary and in the best interest[] of [Samantha] to move
[Samantha] to Puerto Rico because [Samantha’s] immediate family was moving
7
See TEX. EST. CODE ANN. § 1151.052(b).
8
See id. § 1253.001.
4
there.” In July 2019, Tish asked the Bank to distribute $3,533.40 from the trust to
pay for two tickets for a cruise from Orlando, Florida to San Juan, Puerto Rico so
that Samantha could be transported “to Puerto Rico in the most comfortable way
possible.”
The Bank responded to the request for distribution by asking Tish “whether
arrangements ha[d] been made to establish a permanent residence in Puerto Rico”
and whether she had “started the legal proceedings in Puerto Rico to permanently
move [Samantha’s] guardianship” there. Tish’s trial counsel informed the Bank
“that a residence was being established and that Puerto Rican counsel had been either
retained or consulted regarding filing pleadings necessary to transfer the
guardianship.”
The Bank then filed an application for a temporary restraining order and a
temporary injunction to prevent Tish “from removing [Samantha] from Texas.” The
parties agreed to a temporary injunction, signed by the trial court, in which Tish
agreed not to remove Samantha from Texas until either the trial court granted Tish’s
application to transfer the guardianship to a foreign jurisdiction or the Bank agreed
to dissolve the temporary injunction. After further discussions between the Bank
and Tish, Tish, in March 2020, informed the Bank that “the move to Puerto Rico
was on hold.”
5
As grounds for Tish’s removal as guardian of Samantha’s person, the Bank
asserted that Tish had failed to adequately account for the $43,000 distribution to
her from the trust or to use those funds for their intended purposes and had acted
improperly by “us[ing] [Samantha’s] resources for [her] personal and monetary
benefit.” The Bank also asserted that Tish had been generally “non-compliant”; had
“a history of not listening to [the trial court] or to any person associated with keeping
[Samantha] and her funds safe”; “habitually fail[ed] to file timely reports”; and
“delay[ed] two months before complying with the [trial court’s] order to file an
increased bond.”
Further, the Bank alleged that Tish had “create[d] unnecessary costs and
financial drain on [Samantha’s] finances,” citing her hiring of eight different
attorneys and firing of seven since her appointment as guardian of Samantha’s
person and Samantha’s estate and the friction between Tish and the trust companies,
including the Bank’s two predecessor trustees. The Bank also asserted that removal
of Tish as guardian was in Samantha’s best interest because Tish “never complied”
with the guardian ad litem’s 2016 recommendations to either modify Samantha’s
residence or move her “to a living facility or a home that w[ould] provide a larger
living space for her care.”
6
As grounds for termination of the guardianship of the estate of Samantha, the
Bank asserted that Samantha’s estate had no assets, and there was no need for a
guardianship of the estate of Samantha.
The Bank requested that the trial court remove Tish as the guardian of
Samantha’s person and appoint another person as the guardian of the person of
Samantha. The Bank also requested that the guardianship of the estate of Samantha
be terminated.
In her response to the Bank’s first amended application to remove her as
guardian of Samantha’s person and motion to terminate the guardianship of the
estate of Samantha, Tish requested that the trial court deny the Bank’s application
and motion. Tish noted, as to the $43,000 distribution to her from the trust, that at
the time of the distribution, the Bank had classified it “as a direct reimbursement to
Tish” and had transferred the funds into her personal account. Tish had maintained
the distribution “as an intact fund since it was distributed and bonded for the past
year” that was “intended to pay for [Samantha’s] accommodations in the family’s
new home.” When the Bank objected to the failure to include the $43,000
distribution in Tish’s annual report, Tish “amended her . . . [a]nnual [report] to
explain that the[] funds were distributed to her directly and not the guardianship
estate.” The Bank then withdrew its objection.
7
Tish also acknowledged that in April 2019, she filed an application to transfer
the guardianship to a foreign jurisdiction, in which she sought “to establish
permanent residence for [Samantha] in Puerto Rico,” along with the rest of her
family, “for personal and financial reasons.” According to Tish, tension began to
grow between her and the Bank after she had informed the Bank of her desire to
move to Puerto Rico.
Tish also pointed out that the Bank had recently failed to pay the court-ordered
monthly allowance of $5,000 to the mother, Samantha’s caregiver, for Samantha’s
health, education, support, and maintenance needs. Tish had “covered [those]
expenses directly from her own pocket to ensure that [Samantha’s] needs [were]
being met.”
As to the Bank’s urged reasons for removal of Tish as the guardian of
Samantha’s person, Tish asserted that personal discord between a trustee and a
guardian was not a statutory basis for removal of a guardian. Tish also noted that in
July 2019, the Bank had unequivocally tendered its own resignation as trustee of
Samantha’s trust in anticipation of Samantha’s move to Puerto Rico, and according
to Tish, the Bank “ha[d] acted as resigned trustee since that date.” Tish asserted that
the Bank had failed to plead a proper basis for removal of her as the guardian of
Samantha’s person or for termination of the guardianship of the estate of Samantha.
8
Garcia, Samantha’s guardian ad litem, also filed a response to the Bank’s first
amended application to remove Tish as guardian of Samantha’s person and motion
to terminate the guardianship of the estate of Samantha, asserting that Tish should
be removed as the guardian of Samantha’s person and the guardianship of the estate
of Samantha should be terminated. As to the $43,000 distribution to Tish from the
trust, Garcia noted that the distribution was made for the “construction of a new
home” for Tish, Tish’s family, Samantha, and the mother, but “[t]he home was never
built.” Tish had “decided against building the home” on the Memorial tract and
Tish’s counsel “confirmed that the money [was] sitting in the same account” into
which it was initially deposited and “ha[d] not been used.” But “the money ha[d]
not been returned to the [t]rust.” Yet, according to Garcia, “an agreement to return
the funds” to the trust was “being discussed between the parties.”
Garcia also informed the trial court that the Bank had not paid “any of
[Samantha’s] expenses” for the previous two months. The Bank appeared to be
withholding the funds because it “wanted Tish to agree to a new annual budget.”
When the Bank asked Tish to agree to the new budget, she “suggested . . . that since
there ha[d] been no changes, [the Bank] should be able to continue with the prior
annual budget.” The Bank apparently took that response as a refusal to approve the
proposed annual budget, and it “stopped all payments from that point on.” Garcia
stated that she was displeased with the apparent inability of Tish and the Bank “to
9
cooperate for Samantha’s best interest,” noting that the “toxicity between the two
[parties] ha[d] led to several tens of thousands in legal fees being spent by the trust,
with more to come.”
As to the removal of Tish as the guardian of Samantha’s person, Garcia agreed
that Tish should be removed if she continued to pursue the “move to Puerto Rico.”
Garcia observed that Tish had been planning to move her “entire family” to Puerto
Rico for her own business reasons, and “[w]hile it appear[ed] the move would be a
positive one for Tish’s business,” in Garcia’s opinion, it would “create[] a strain on
[Samantha’s] [g]uardianship.” Garcia was also “concern[ed] about the continued
growth of the [t]rust” and its “sustainability and management” if it were moved to
Puerto Rico because Puerto Rican law recognized only a guardianship of the estate
and did not recognize the form of trust that had been created and maintained for
Samantha under Texas law. Given all those factors, Garcia concluded that it would
be in Samantha’s “best interest to [r]emove Tish” as the guardian of Samantha’s
person and appoint the mother as successor guardian of Samantha’s person.
At the hearing on the Bank’s first amended application to remove Tish as the
guardian of the person of Samantha and motion to terminate the guardianship of the
estate of Samantha, the trial court made clear that it wanted to have the Bank’s
application for removal heard before it addressed any issues about the Bank’s
resignation as trustee. The Bank’s trial counsel informed the trial court that the
10
parties had been “unable to reach a resolution”—apparently as to Tish’s resignation
or removal—and the Bank was “ready to proceed” with argument on its application
for removal. But before proceeding, the trial court gave Tish’s trial counsel
additional time to meet with Tish to continue to try to settle the dispute with the
Bank as to Samantha’s guardianship.
When the hearing resumed, the trial court asked Tish’s trial counsel if an
agreement had been reached. He answered that it had not, but that Tish had
“offer[ed] her resignation as guardian of [Samantha’s] person and estate,”
conditioned on the mother’s appointment as the successor guardian of Samantha’s
person. The trial court asked the Bank whether it accepted Tish’s offer, and the
Bank’s trial counsel responded that while the Bank was “in favor of [Tish’s]
resignation,” it had “some concerns” about having the mother appointed as the
successor guardian of Samantha’s person.
After further discussion, the trial court stated:
We have two steps to do, obviously. One is the removal, either by
agreement or by [c]ourt ruling. And, then, the qualification of anyone
named as successor. So . . . if your client’s position is that her
resignation is conditional and the other parties are not willing to accept
that, then we’re going to start the case now on removal.
Speaking directly to Tish’s trial counsel, the trial court then explained that it “just
need[ed] to find out if [Tish’s] decision to resign [was] unconditional” in order to
11
“move on to the next issue as to whether or not [the] mother [was] suitable to serve”
as guardian of Samantha’s person.
The trial court then allowed Tish’s trial counsel another short break to confer
with Tish. When trial counsel returned, he informed the trial court that Tish still did
not “have an agreement” with the Bank. Counsel asked the trial court if it could
determine whether the mother was qualified to serve as guardian of Samantha’s
person before Tish resigned. The trial court said it would not. It told Tish’s counsel,
“[E]ither you decide to . . . have your client resign, or we’re going to have testimony
regarding the removal.”
After the Bank’s first witness was sworn but before the witness testified,
Tish’s trial counsel interjected, “Your Honor, my client said that she unconditionally
resigns” as the guardian of Samantha’s person and guardian of the estate of
Samantha. The Bank’s trial counsel responded: “We accept that.” And the trial
court stated, “All right. Very good.” Without hearing testimony from any witness
on the removal of Tish as the guardian of Samantha’s person or the termination of
the guardianship of the estate of Samantha, the trial court immediately turned to
consider whether the appointment of the mother as the successor guardian of
Samantha’s person would be in Samantha’s best interest, and it heard testimony from
the mother on that issue.
12
At the close of the hearing, the trial court told the parties that it wanted to have
“two orders” prepared. As to the first order, the trial court asked Tish’s trial counsel
to draft an order for Tish’s resignation as guardian of Samantha’s person and the
estate of Samantha, noting that it understood that she had “resigned, but” explaining
that it wanted “to have that in writing.” As to the second order, the trial court stated
that it believed it also “need[ed] to sign an order actually removing [Tish]” as
guardian of Samantha’s person and the estate of Samantha and that it would “sign
[that] order” after it received Garcia’s “additional report and the proposed order of
resignation.”
Tish’s trial counsel noted that “[t]he resignation as guardian of the estate
require[d] the discharge of the bond,” and he proposed that the discharge be included
in the agreed order closing the guardianship of the estate. And he agreed to “prepare
that as well and submit it to the [trial] [c]ourt.”
Tish’s trial counsel then asked the trial court to confirm his understanding that
he was to draft “an order related to acceptance of the resignation” of the trustee and
an agreed order terminating the guardianship of the estate and discharging the bond.
The trial court asked the parties if they needed an immediate “ruling on [the
mother’s] suitability” to be appointed as the guardian of Samantha’s person and
indicated that it was “ready to make a ruling on that.” Alternatively, the trial court
offered to give the parties “some time to work out the agreements before” it made
13
the ruling. The trial court, in the end, did not rule on the appointment of the mother
as the successor guardian of Samantha’s person. It scheduled a status conference
with the parties for a later date.
On October 20, 2020, three events then happened in the case. First, the mother
filed an agreed motion to continue the status conference previously set by the trial
court, which the trial court granted.
Second, Tish filed her “Resignation of the Guardian of the Person and Estate,”
in which she stated that she was appointed as guardian of the person and the estate
of Samantha in 2016. And effective October 2, 2020, she resigned as guardian of
Samantha’s person and Samantha’s estate. She would “file her verified [f]inal
[a]ccount and [f]inal [r]eport” by October 28, 2020.9 She asked the trial court to
accept her resignation and discharge her and her corporate surety.
Third, the trial court signed an “Order Removing Personal Representative and
Appointing Temporary Guardian of the Person and Estate Pending Contest” (the
“removal order”). In the removal order, the trial court, “on its own motion,” stated
that it was considering the removal of Tish as guardian of the person and guardian
of the estate of Samantha. And it concluded that Tish was “no longer suitable to
serve as guardian.” Thus, it ordered that Tish be “removed as [g]uardian of the
9
See id. §§ 1163.101–.105
14
[p]erson and [e]state of Samantha” and that “the letters . . . issued to her . . . be
surrendered and that all such letters be canceled of record whether delivered or not.”
(Emphasis omitted.) The trial court then determined “that a necessity for a
[g]uardian still exist[ed]” and appointed a “temporary guardian pending contest of
the person and estate of [Samantha].” (Emphasis omitted.)
In May 2021, Tish filed her first amended bill of review seeking withdrawal
of the trial court’s removal order.10 She argued that the removal order “was entered
in error because [she had] resigned as guardian [of Samantha’s person and the estate
of Samantha], and no evidence was heard to support the trial court’s finding on
removal.” Also, the removal order “was plainly inconsistent with what [had]
transpired at the hearing” on the Bank’s first amended application to remove Tish as
the guardian of the person of Samantha and motion to terminate the guardianship of
the estate of Samantha and was “not supported by evidence.” According to Tish, the
reporter’s record from the hearing “show[ed] that [Tish] resigned voluntarily
and . . . no evidence was presented or admitted as to her removal.”
In its objection to Tish’s bill of review, the Bank argued the trial court was
not required to accept Tish’s verbal resignation as guardian of Samantha’s person
and the estate of Samantha tendered through her trial counsel at the hearing. The
10
See id. § 1056.101.
15
trial court also was not required to accept Tish’s written resignation, filed on October
20, 2020, because it did not qualify as a “written application” for resignation under
Texas Estates Code section 1203.001.11 And “[n]o necessity existed that would have
required the [t]rial [c]ourt to accept” Tish’s resignation.
Further, the Bank asserted that the trial court’s records contained sufficient
evidence to support Tish’s removal, namely: (1) her frequent hiring and firing of
attorneys to represent her as guardian of Samantha’s person and the estate of
Samantha; (2) her failure to timely file annual accounts and reports; (3) her attempt
to move Samantha from Texas to Puerto Rico; (4) her unspecified actions which
caused the “removal/resignation and replacement of two trustee companies”; (5) her
failure to modify Samantha’s home as recommended by Garcia, Samantha’s
guardian ad litem; (6) her requests to the Bank to approve approximately $100,000
in attorney’s fees that she had incurred for payment by the trust; and (7) her having
taken $43,000 in trust funds for expenses to build a home on the Memorial tract and
her later returning those funds after acknowledging they had been in her personal
account all along.
11
See id. § 1203.001 (“A guardian of . . . the person who wishes to resign the
guardian’s trust shall file a written application with the court clerk, accompanied by
a verified report containing the information required in the annual report required
under [Texas Estates Code sections 1163.101–.105], showing the condition of the
ward entrusted to the guardian’s care.”).
16
In her reply to the Bank’s objection, Tish argued that the trial court’s removal
order and the Bank’s response did not account for what had occurred at the hearing
on the Bank’s first amended application to remove Tish as the guardian of the person
of Samantha and motion to terminate the guardianship of the estate of Samantha,
because it was “clear from the [reporter’s record] that both [the Bank] and the [trial
court] were satisfied with . . . Tish’s unconditional resignation as guardian [of
Samantha’s person and the estate of Samantha] which was made in open court.” In
particular, she noted that “[a]fter the resignation was made, [the Bank’s] counsel
stated, ‘We accept that,’ and the [trial] [c]ourt stated, ‘All right, very good.’”
The trial court denied Tish’s bill of review without a hearing.
Standard of Review
A bill of review is a separate, independent suit, brought by a party to a former
action, to set aside a final judgment that is no longer subject to a motion for new trial
or appealable. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010);
Woods v. Kenner, 501 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2016, no
pet.); see TEX. R. CIV. P. 329b(f). We review a trial court’s ruling on a bill of review
for an abuse of discretion, indulging every presumption in favor of the court’s ruling.
Woods, 501 S.W.3d at 190; Li v. DDX Grp. Inv., LLC, 404 S.W.3d 58, 62 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). A trial court abuses its discretion if it acts
in an unreasonable or arbitrary manner, or without reference to guiding rules and
17
principles. Woods, 501 S.W.3d at 190; Li, 404 S.W.3d at 62. Under the
abuse-of-discretion standard, evidentiary sufficiency issues are not independent
grounds of error, but the sufficiency of the evidence is a relevant factor in
determining whether the trial court abused its discretion. Kubbernus v. ECAL
Partners, Ltd., 574 S.W.3d 444, 486 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied); Vandervlist v. Samara Portfolio Mgmt., LLC, No. 14-16-00044-CV, 2017
WL 3194062, at *6 (Tex. App.—Houston [14th Dist.] July 27, 2017, pet. denied)
(mem. op.); In re Guardianship of Finley, 220 S.W.3d 608, 612 (Tex. App.—
Texarkana 2007, no pet.). A trial court does not abuse its discretion where the record
contains some evidence of a substantial and probative character to support its ruling.
Vandervlist, 2017 WL 3194062, at *6.
Pertinent here, Texas Estates Code section 1056.101 provides:
(a) An interested person, including a ward, may, by a bill of review
filed in the court in which the guardianship proceeding was held, have
an order or judgment rendered by the court revised and corrected on a
showing of error in the order or judgment.
(b) Except as provided by [s]ubsection (c), a bill of review to revise
and correct an order or judgment may not be filed more than two years
after the date of the order or judgment.
TEX. EST. CODE ANN. § 1056.101(a), (b).12
12
The Texas Estates Code similarly provides for bills of review in probate
proceedings. See id. § 55.251.
18
A movant seeking an equitable bill of review must plead and prove (1) a
meritorious defense to the underlying cause of action, (2) which the movant was
prevented from making by the fraud, accident or wrongful act of the opposing party
or official mistake, (3) unmixed with any fault or negligence on her own part. Valdez
v. Hollenbeck, 465 S.W.3d 217, 226–27 (Tex. 2015) (elements of “equitable bill of
review”). But a statutory bill of review13 is not subject to the same limitations or
requirements of an equitable bill of review. Woods, 501 S.W.3d at 191; see also
McDonald v. Carroll, 783 S.W.2d 286, 288 (Tex. App.—Dallas 1989, writ denied).
Instead of the three elements required to prove an equitable bill of review, the
movant seeking a statutory bill of review only needs to show “substantial error” in
the challenged order or judgment. Valdez, 465 S.W.3d at 226–27; Woods, 501
S.W.3d at 191. Such substantial error “need not have appeared on the face of the
record and the movant may prove the error at trial by a preponderance of the
evidence.” Ablon v. Campbell, 457 S.W.3d 604, 609 (Tex. App.—Dallas 2015, pet.
denied). Thus, to prevail on her statutory bill of review, Tish was required to
specifically allege and prove, by a preponderance of the evidence, substantial error
in the removal order.
13
Statutory bills of review exist predominantly in the probate and guardianship
contexts. See Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015).
19
Bill of Review
In a portion of her first issue14 and in her second issue, Tish argues that the
trial court erred in denying her bill of review because the removal order “removed”
Tish as guardian of Samantha’s person and the estate of Samantha when she actually
resigned as guardian and no evidence supported her removal by the trial court. Tish
also asserts that the removal order should be corrected to reflect that she resigned as
guardian of Samantha’s person and the estate of Samantha.
14
Tish’s first issue is phrased to directly challenge the removal order instead of the
trial court’s order denying Tish’s bill of review. But Tish did not timely appeal the
trial court’s October 20, 2020 removal order, which, in the context of this
guardianship proceeding, constituted a final judgment. In re Webster, No.
05-15-00945-CV, 2015 WL 4722306, at *2 (Tex. App.—Dallas Aug. 10, 2015, orig.
proceeding) (mem. op.) (“Texas law has long recognized that an order removing a
guardian is a final appealable order.”); see, e.g., Stevens v. Douglas, 505 S.W.2d
532, 532 (Tex. 1974) (order setting aside appointment of person as administrator
and reinstating the appointment of prior administrator was decree determining all
issues of law and fact between parties and thus constituted final and appealable
judgment); Pine v. deBlieux, 360 S.W.3d 45, 46–47 & n.1 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied) (order accepting initial administrator’s resignation and
appointing successor administrator was appealable); see generally De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (“Probate proceedings are an exception
to the one final judgment rule; in such cases, multiple judgments final for purposes
of appeal can be rendered on certain discrete issues.” (internal quotations omitted)).
Any party “seek[ing] to alter the trial court’s judgment or other appealable order”
must timely file a notice of appeal. See TEX. R. APP. P. 25.1(c). Generally, if a
party fails to timely file a notice of appeal, we have no jurisdiction to address the
merits of that party’s appeal. See TEX. R. APP. P. 25.1(b); In re K.L.L., 506 S.W.3d
558, 560 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (without timely notice of
appeal, appellate court lacks jurisdiction over appeal); Brashear v. Victoria Gardens
of McKinney, L.L.C., 302 S.W.3d 542, 545–46 (Tex. App.—Dallas 2009, no pet.)
(timely filing of notice of appeal is jurisdictional prerequisite). To the extent that
Tish’s first issue directly challenges the trial court’s October 20, 2020 removal
order, we hold that we lack jurisdiction to address that portion of her first issue.
20
The trial court, in its removal order, stated that it was “remov[ing]” Tish as
“[g]uardian of the [p]erson and [e]state of Samantha” because it had determined that
she was “no longer suitable to serve as guardian.” (Emphasis omitted.) A guardian
appointed under Texas guardianship law may be “removed only for some cause
declared by the statute to be a sufficient cause.” Kahn v. Israelson, 62 Tex. 221, 225
(1884); see also Finley, 220 S.W.3d at 612. In other words, the statutory grounds
for removal are exclusive. See In re Guardianship of LaRoe, No. 05-15-01006-CV,
2017 WL 511156, at *12 (Tex. App.—Dallas Feb. 8, 2017, pet. denied) (mem. op.);
Finley, 220 S.W.3d at 612.
Texas Estates Code sections 1203.051 and 1203.052 govern the removal of a
guardian appointed under Texas guardianship law either with or without notice. See
TEX. EST. CODE ANN. §§ 1203.051 (“Removal Without Notice”), 1203.052
(“Removal with Notice”). The trial court’s stated reason for removing Tish as
guardian of Samantha’s person and the estate of Samantha—that Tish was “no
longer suitable to serve as guardian”—is not a statutory ground for removal of a
guardian. See id. §§ 1203.051, 1203.052. And thus, the trial court erred in removing
Tish as the guardian of Samantha’s person and the estate of Samantha because she
was “no longer suitable.”
But a trial court “cannot abuse its discretion if it reaches the right result, even
for the wrong reasons.” Finley, 220 S.W.3d at 612. Accordingly, if the record shows
21
that a statutory ground supports Tish’s removal as the guardian of Samantha’s person
and the estate of Samantha, then there would not be substantial error in the removal
order and the trial court would not have erred in denying Tish’s bill of review.
Under Texas Estates Code section 1203.051, a trial court may remove a
guardian appointed under Texas guardianship law based on certain, more serious,
grounds without notice. See TEX. EST. CODE ANN. § 1203.051(a). To remove a
guardian under Texas Estates Code section 1203.052 though, the trial court must
provide notice to the guardian before her removal. See id. § 1203.052(a), (a-1).
Specifically, Texas Estates Code section 1203.051 allows for the removal of
a guardian appointed under Texas guardianship law, without notice, either on the
court’s own motion or on the motion of an interested person, if the guardian:
(1) neglects to qualify in the manner and time required by law;
(2) fails to return, not later than the 30th day after the date the
guardian qualifies, an inventory of the guardianship estate property and
a list of claims that have come to the guardian’s knowledge, unless that
deadline is extended by court order;
(3) if required, fails to give a new bond within the period prescribed;
(4) is absent from the state for a consecutive period of three or more
months without the court’s permission, or removes from the state;
(5) cannot be served with notices or other processes because:
(A) the guardian’s whereabouts are unknown;
(B) the guardian is eluding service; or
22
(C) the guardian is a nonresident of this state who does not
have a resident agent to accept service of process in any guardianship
proceeding or other matter relating to the guardianship;
(6) subject to [Texas Estates Code] [s]ection 1203.056(a):
(A) has misapplied, embezzled, or removed from the state, or
is about to misapply, embezzle, or remove from the state, any of the
property entrusted to the guardian’s care; or
(B) has engaged in conduct with respect to the ward that would
be considered to be abuse, neglect, or exploitation . . . ; or
(7) has neglected to educate or maintain the ward as liberally as the
means of the ward and the condition of the ward’s estate permit.
Id. § 1203.051(a). Texas Estates Code section 1203.056(a) provides that “[t]he court
may remove a guardian under [s]ection 1203.051(a)(6)(A) or (B) only on the
presentation of clear and convincing evidence given under oath.” Id. § 1203.056(a).
Under Texas Estates Code section 1203.052(a), a court may remove a
guardian with notice, either on the court’s own motion or on the motion of an
interested person, if:
(1) sufficient grounds appear to support a belief that the guardian has
misapplied, embezzled, or removed from the state, or is about to
misapply, embezzle, or remove from the state, any of the property
entrusted to the guardian’s care;
(2) the guardian fails to return any account or report that is required
by law to be made;
(3) the guardian fails to obey a proper order of the court that has
jurisdiction with respect to the performance of the guardian’s duties;
(4) the guardian is proved to have been guilty of gross misconduct
or mismanagement in the performance of the guardian’s duties;
23
(5) the guardian:
(A) becomes incapacitated;
(B) is sentenced to the penitentiary; or
(C) from any other cause, becomes incapable of properly
performing the duties of the guardian’s trust;
(6) the guardian has engaged in conduct with respect to the ward that
would be considered to be abuse, neglect, or exploitation, as those terms
are defined by [s]ection 48.002, Human Resources Code, if engaged in
with respect to an elderly person or person with a disability, as defined
by that section;
(7) the guardian neglects to educate or maintain the ward as liberally
as the means of the ward’s estate and the ward’s ability or condition
permit;
(8) the guardian interferes with the ward’s progress or participation
in programs in the community;
(9) the guardian fails to comply with the requirements of [Texas
Estates Code] [s]ubchapter G, [c]hapter 1104;
(10) the court determines that, because of the dissolution of the joint
guardians’ marriage, the termination of the guardians’ joint
appointment and the continuation of only one of the joint guardians as
the sole guardian is in the best interest of the ward; or
(11) the guardian would be ineligible for appointment as a guardian
under [Texas Estates Code] [s]ubchapter H, [c]hapter 1104.
Id. § 1203.052(a), (a-1). For a court, on its own motion, to remove a guardian based
on one of the grounds provided in section 1203.052(a), the guardian must have been
“notified, by certified mail, return receipt requested, to answer at a time and place
set in the notice.” Id. § 1203.052(a-1).
24
Here, Tish was not notified of or given an opportunity to respond to the trial
court’s sua sponte motion to remove her as guardian of Samantha’s person and the
estate of Samantha before the trial court signed the removal order. As a result, we
consider only whether any of the grounds set forth in Texas Estates Code section
1203.051(a) support her removal without notice.
As to whether Tish “neglect[ed] to qualify” as guardian “in the manner and
time required by law,” the statute for qualification requires a guardian, before the
twenty-first day of an order granting letters of guardianship, to: (1) take an oath or
make a declaration to faithfully discharge her duties and file it with the court; 15
(2) give a bond, if required; (3) “file[] the bond with the clerk”; and (4) “obtain[] the
judge’s approval of the bond.” Id. § 1105.002; see also id. § 1203.051(a)(1). The
record contains a signed oath and an approved bond filed on or before the date of the
trial court’s 2016 order appointing Tish as guardian of Samantha. There is no
evidence showing that the trial court could have removed Tish as guardian because
she “neglect[ed] to qualify” as guardian. See id. § 1203.051(a)(1).
The record also does not show that Tish, while acting as guardian of
Samantha’s person or the estate of Samantha, “fail[ed] to return, not later than the
30th day after the date [she was] qualif[ied], an inventory of the guardianship estate
15
See TEX. EST. CODE ANN. § 1105.051.
25
property and a list of claims that ha[d] come to [her] knowledge.” See id.
§ 1203.051(a)(2). As to whether Tish “fail[ed] to give a new bond within the period
prescribed,” we note that the record shows that Tish was once late in paying an
increase in bond ordered by the trial court, but she ultimately paid the increase, after
which the trial court approved the bond. See id. § 1203.051(a)(3). Thus, there is no
evidence showing that the trial court could have removed Tish as guardian because
she “fail[ed] to return . . . any inventory of the guardianship estate property” or “a
list of claims” or because she “fail[ed] to give a new bond.” See id. § 1203.051(a)(2),
(a)(3).
Further, the record raises no question about Tish’s whereabouts and does not
show that she could not be found. See id. § 1203.051(a)(4) (guardian may be
removed because she “is absent from the state for a consecutive period of three or
more months with the court’s permission, or removes from the state”),
1203.051(a)(5) (guardian may be removed because she could not “be served with
notices of other processes because” her whereabouts were unknown, she was eluding
service, or she was a nonresident of state “who d[id] not have a resident agent to
accept service of process”). Thus, there is no evidence showing that the trial court
could have removed Tish as guardian because she was “absent from the state” or
because she could not “be served with notices of other processes.” See id.
§ 1203.051(a)(4), (a)(5).
26
And as to the ground for removal set forth in Texas Estates Code section
1203.051(a)(6), the trial court could not have relied on that provision to remove Tish
as guardian because it does not apply here. Under section 1203.051(a)(6), the trial
court could only remove a guardian if there had been a “presentation of clear and
convincing evidence given under oath,” and the trial court in this case heard no
evidence at the hearing as to Tish’s removal. See id. §§ 1203.051(a)(6), 1203.056(a)
(“The court may remove a guardian under [s]ection 1203.051(a)(6)(A) or (B) only
on the presentation of clear and convincing evidence given under oath.”). Finally,
nothing in the record suggests that Tish neglected “to educate or maintain
[Samantha] as liberally as the means of [Samantha] and the condition of
[Samantha’s] estate permit[ted].” See id. § 1203.051(a)(7). Thus, there is no
evidence showing that the trial court could have removed Tish as guardian because
she “neglected to educate or maintain” Samantha. See id.
Because none of the statutory grounds under Texas Estates Code section
1203.051(a) support the trial court’s removal of Tish, without notice, as guardian of
Samantha’s person and the estate of Samantha, we conclude that Tish met her burden
to show that the trial court committed substantial error in entering the removal order.
See Woods, 501 S.W.3d at 151 (party seeking statutory bill of review only needs to
show “substantial error” in challenged order or judgment).
27
As to Tish’s request that the removal order reflect her resignation as guardian
of Samantha’s person and the estate of Samantha, the Bank argues that Tish’s
unconditional resignation as guardian at the hearing on the Bank’s first amended
application to remove Tish as guardian of Samantha’s person and motion to
terminate the guardianship of the estate of Samantha was not valid because it was
announced by her trial counsel and because she did not file a written application to
resign as required by Texas Estates Code section 1203.001. See TEX. EST. CODE
ANN. § 1203.001 (“Resignation Application”).
We first note that the announcement of Tish’s unconditional resignation in
open court, followed by the Bank’s acceptance of that resignation, created a valid
agreement between Tish and the Bank under Texas Rule of Civil Procedure 11. See
TEX. R. CIV. P. 11 (agreement is enforceable if it is “in writing, signed and filed with
the papers as part of the record” or “made in open court and entered of record”); see,
e.g., Am. Fisheries, Inc. v. Nat’l Honey, Inc., 585 S.W.3d 491, 501–02 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (parties’ agreement to settle case is
enforceable if made in open court and entered of record). And under these
circumstances, a resignation announcement by Tish’s trial counsel was as valid as
one made by Tish. See Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex.
1986) (declaring “[t]he attorney-client relationship is an agency relationship” and
attorney’s “acts and omissions within the scope of his or her employment are
28
regarded as the client’s acts”); see also Wakefield v. Ayers, No. 01-14-00648-CV,
2016 WL 4536454, *4 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (mem. op.)
(“[A]n attorney may execute an enforceable settlement agreement on his client’s
behalf; and, under such circumstances, a client’s personal signature is not
required.”).
However, the Bank is correct that the trial court was not required to accept
Tish’s resignation as guardian of Samantha’s person and the estate of Samantha. But
the record indicates that the trial court did not oppose it. The trial court stated, “All
right, very good” after the Bank agreed to Tish’s unconditional resignation, and it
turned immediately to the task of selecting a successor guardian for Samantha
without hearing any evidence on the grounds for Tish’s removal as guardian that had
been urged by the Bank. Although the Bank complains that Tish did not file a written
application to resign as guardian of Samantha’s person and the estate of Samantha,
as contemplated by Texas Estates Code section 1203.001, neither the Bank nor the
trial court mentioned the need for an application and the trial court described the
orders that it wanted Tish to prepare to effect Tish’s resignation as guardian of
Samantha’s person and the estate of Samantha and discharge. Given that the Bank
agreed to Tish’s resignation in open court and the trial court voiced its approval and
29
directed Tish to prepare a proposed order for her resignation, an application to resign
was unnecessary.16
The trial court also stated it would need an order to “remove.” But the statute
provides for either resignation or removal of a guardian, not both. Compare TEX.
EST. CODE ANN. §§ 1203.001–.002 (addressing resignation of guardian), with id.
§§ 1203.051–.052 (addressing removal of guardian). Earlier in the hearing, the trial
court told Tish’s trial counsel, “[E]ither you decide to . . . have your client resign, or
we’re going to have testimony regarding the removal.” This statement demonstrates
the trial court’s understanding, consistent with the statute, that resignation and
removal were alternatives.
In asking first for a resignation order, the trial court indicated its agreement
with that disposition. So, in asking next for an order to “remove,” after having
declined to take any evidence on that issue, the trial court appears to have meant that
it would need an order to discharge Tish as guardian.17 See id. § 1203.006
16
Tish was still required to file the annual report required by Texas Estates Code
section 1203.001 before she could be discharged. See id. §§ 1203.001,
1203.002(b); see also id. §§ 1163.001–.052.
17
We also note that the Texas Estates Code section 1203.102 uses “removed” alone
as shorthand for “resigned, removed, or died.” Compare id. § 1203.102(a)
(allowing court to appoint successor guardian “[i]f a guardian resigns, is removed,
or dies”), with id. § 1203.102(b) (“The court may appoint a successor guardian
under this section without citation or notice if the court finds that a necessity exists
for the immediate appointment. Subject to an order of the court, a successor
guardian has the powers and rights of the removed guardian.” (emphasis added)).
30
(requirements for discharge of guardian applying to resign); see also id.
§ 1203.002(b) (addressing discharge of person resigning as guardian). We conclude
that the trial court’s removal order should reflect Tish’s resignation as guardian of
Samantha’s person and the estate of Samantha.
Based on the foregoing, we hold that the trial court erred in denying Tish’s
bill of review.
We sustain a portion of Tish’s first issue and her second issue.
Conclusion
We dismiss for lack of jurisdiction the portion of Tish’s appeal seeking to
directly challenge the trial court’s October 20, 2020 removal order. We reverse the
trial court’s order denying Tish’s bill of review and render judgment granting the
bill of review. We remand the case to the trial court to issue a corrected order that
removes the following portion of the October 20, 2020 removal order:
. . . [C]ame on to be considered by the Court on its own motion,
the removal of GUADALUPE LUGO A/K/A TISH LUGO, Guardian
of the Person and Estate of SAMANTHA LUGO, in the above entitled
and numbered estate and it appearing to the Court that the said guardian
is no longer suitable to serve as guardian.
It is THEREFORE ORDERED, ADJUDGED AND DECREED
that GUADALUPE LUGO A/K/A TISH LUGO is hereby removed as
Guardian of the Person and Estate of SAMANTHA LUGO, and the
letters heretofore issued to her shall be surrendered and that all such
letters be canceled of record whether delivered or not.
31
In place of this language, the trial court’s order shall include a statement accepting
Tish’s resignation as guardian of the person and estate of Samantha, and if all
necessary and compliant reports have been filed, any other provision required to
effect her discharge. We dismiss all pending motions as moot.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
32