Opinion
No. 05-09-00913-CV
Opinion issued November 3, 2010.
On Appeal from the Probate Court No. 2, Dallas County, Texas, Trial Court Cause No. PR-09-0871-P2.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
MEMORANDUM OPINION
The trial court appointed the Texas Department of Aging and Disability Services (DADS) temporary guardian of the person of Luther Smith. DADS appealed that order. Subsequently, the trial court signed an order appointing permanent guardians for the person and the estate of Smith. We conclude that the appeal is moot and that DADS has not shown the applicability of any exception to the mootness doctrine. Accordingly, we dismiss the appeal.
I. Background
In April 2009, a probate court investigator filed a referral report in Probate Court No. 2 of Dallas County. The investigator averred, among other facts, that Luther Smith was 85 years old and had been diagnosed with dementia. The investigator recommended that the court appoint a guardian ad litem for Smith to further investigate the possible need for a temporary guardianship. The court appointed a guardian ad litem for Smith. The guardian ad litem filed an application for appointment of a temporary guardian for Smith, requesting that David Jackson Wilburn II be appointed. On June 29, 2009, the guardian ad litem filed an amended application for appointment of a temporary guardian in which he omitted Wilburn's name and instead requested only that "a suitable person or suitable persons" be appointed as Smith's temporary guardian. That same day, the probate court held a hearing and signed an order appointing DADS as the temporary guardian of Smith's person and David Kelton as the temporary guardian of Smith's estate. The order expired on July 28, 2009.
DADS filed a motion to vacate the order appointing it as temporary guardian of Smith's person. DADS averred that it had received no notice of the hearing of the application for temporary guardianship and no notice that the court intended to appoint DADS as Smith's temporary guardian. DADS argued that the order was void for lack of jurisdiction and should be vacated. The guardian ad litem responded to DADS's motion and also moved to extend the temporary guardianship. On July 28, 2009, the court signed an order extending the temporary guardianship for 30 days. On July 31, 2009, DADS filed a notice of appeal from the temporary-guardianship order and the order extending the temporary-guardianship order. The probate court later signed an order extending the temporary guardianship indefinitely pending the final hearing of the matter.
About three weeks after DADS filed its appellate brief in this matter, the probate court signed an order appointing Senior Citizens of Greater Dallas as the permanent guardian of Smith's person and Michael A. Duran as the permanent guardian of his estate. Those two parties filed bonds and oaths, and the probate court approved the bonds.
We directed DADS to file a supplemental brief addressing the finality of the order establishing temporary guardianship. DADS filed a letter brief addressing both that issue and the possibility that the permanent-guardianship order had rendered the appeal moot.
II. Analysis
We conclude that the appointments of a permanent guardian for Smith's person and a permanent guardian for his estate have rendered this appeal moot. Accordingly, we express no opinion whether the order establishing a temporary guardianship was final for purposes of appeal.
An appeal is moot when a court's action on the merits cannot affect the rights of the parties. Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) (per curiam); In re J.G., 301 S.W.3d 376, 379 (Tex. App.-Dallas 2009, no pet.). Appellate courts are prohibited from deciding moot controversies. Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). The mootness doctrine implicates subject-matter jurisdiction. Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.-Dallas 2009, no pet.).
Complaints about an order regarding temporary guardianship ordinarily become moot if a permanent guardian is appointed. See In re Guardianship of Berry, 105 S.W.3d 665, 666 (Tex. App.-Beaumont 2003, no pet.) (per curiam) ("The appointment of the temporary guardian is moot now that the temporary guardian has been replaced with a permanent guardian."); accord In re Guardianship of Humphrey, No. 12-06-00222-CV, 2008 WL 2445503, at *2 (Tex. App.-Tyler June 18, 2008, pet. denied) (mem. op.); see also In re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex. App.-Texarkana 2006, no pet.) (observing that proper appointment of permanent guardian would moot issues regarding removal of temporary guardian); cf. Hamilton Cnty. v. Cooper, No. 05-07-00307-CV, 2007 WL 2774166, at *1 (Tex. App.-Dallas Sept. 25, 2007, no pet.) (mem. op.) (dismissing appeal from temporary injunction as moot after trial court rendered final judgment in the case). In this case, the record establishes that a permanent guardian of Smith's person has been appointed, and DADS does not dispute that this appointment terminated any temporary guardianship.
DADS contends that its appeal is not moot because the signing of the permanent-guardianship order did not "cure" the invalid entry of the temporary-guardianship order, implying that there is some ongoing harm flowing from the temporary-guardianship order. But it does not explain what this harm is, or how a judgment from this Court could remedy it. DADS also contends that we always retain jurisdiction to determine subject-matter jurisdiction. The case DADS cites for this proposition actually states, "Courts always have jurisdiction to determine their own subject matter jurisdiction." Dolenz v. Vail, 200 S.W.3d 338, 341 (Tex. App.-Dallas 2006, no pet.) (emphasis added). We have found no authority supporting the proposition that we can consider alleged jurisdictional defects in a trial court's order after an appeal has become moot. We reject DADS's contentions and conclude that any issues attacking the propriety of the order appointing DADS as Smith's temporary guardian are moot.
Finally, DADS contends that its appeal comes within an exception to the mootness doctrine. An issue does not become moot if the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot and there is a reasonable expectation that the same action will occur again if the court does not consider the issue. See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999). This exception applies only in rare circumstances. Trulock, 277 S.W.3d at 924. "The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test." Id. at 924-25. DADS argues that it has a reasonable expectation of facing the same problem in the future based on the legislative history of section 875 of the probate code. See Senate Comm. on Human Services, Bill Analysis, Tex. H.B. 2795, 76th Leg., R.S. (1999). We conclude that this legislative history from over a decade ago does not show that DADS currently has a reasonable expectation of being appointed as temporary guardian without notice in other cases. At oral argument, DADS advised us of two particular instances in which allegedly similar events have taken place in other Texas trial courts. But there is no evidence of these instances in the record, and we conclude it would not be proper to take judicial notice of those alleged facts. See generally Tex. R. Evid. 201 (governing judicial notice). Thus, DADS has not demonstrated the applicability of the exception to the mootness doctrine.
III. Disposition
We dismiss the appeal as moot.