Opinion
No. 05-14-01495-CV
04-15-2016
IN THE MATTER OF THE GUARDIANSHIP OF DORIS L. TIPPS
On Appeal from the Probate Court No. 3 Dallas County, Texas
Trial Court Cause No. PR-13-3072-3
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
Steven V. Tipps ("Steven") appeals from two orders entered in the guardianship proceedings concerning his mother Doris L. Tipps ("Doris"). In his first two issues, he contends the trial court erred by denying and limiting his requests to cross-examine witnesses. Next, he argues the trial court erred by revoking his medical power of attorney. Finally, he asserts the trial court erred by failing to address his claims for expenses and costs incurred during the guardianship of his mother. We affirm the trial court's judgment in all respects. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL & PROCEDURAL BACKGROUND
Thomas Vinson Tipps ("Thomas Vinson") and Doris established the Tipps Living Trust ("Trust") in 1992. Under the Trust's terms, Thomas Vinson and Doris served as initial co-trustees, and upon the death or disability of one of them, the other was to serve as sole trustee with the right to appoint a co-trustee. Upon the death or disability of both Thomas Vinson and Doris, then their son, Appellee Thomas Richard Tipps ("Thomas"), would serve as trustee.
In September 2013, Thomas filed an Application for the Appointment of Temporary Guardian of the Person and Estate, in which he stated Thomas Vinson had predeceased Doris and that Doris suffered from total incapacity. He attached to the application a Declaration of Guardian in the Event of Later Incapacity or Need of Guardian, signed in July 2012, in which Doris named Thomas as guardian of her person and estate and expressly disqualified her other son Steven from serving in either capacity. The trial court entered an order appointing an attorney ad litem, Scott Weber ("Weber"), to represent Doris. Another attorney, W. Thomas Finley ("Finley"), filed on behalf of Doris a Contest of Appointment of Temporary Guardian, denying the allegations in Thomas's Application. Thomas filed a Motion for Independent Mental Examination, which the trial court granted. In November 2013, the court-appointed psychiatrist filed his report in which he determined, among other things, Doris suffered from severe dementia and was totally incapacitated.
Doris (represented by Weber and Finley), Thomas, Steven, and Doris's daughters Glenda Jordan and Sally Fink, participated in mediation, and in January 2014, they entered into a Mediation Settlement Agreement that provided (1) Thomas would resign as trustee of the Trust, (2) appellee Cumberland Trust and Investment Company ("Cumberland") would serve as a successor trustee of the Trust, (3) and appellee Senior Citizens of Greater Dallas d/b/a Senior Source ("Senior Source") would serve as Doris's guardian of the person. In February 2014, the trial court entered an order appointing Senior Source as guardian of Doris's person, ordering Cumberland to serve as trustee of the trusts, and approving the Mediation Settlement Agreement.
In June 2014, Senior Source filed a Petition to Revoke Authority of Agent, requesting the trial court revoke the authority Steven had obtained pursuant to a medical power of attorney signed in September 2013—days after Thomas filed his Application for the Appointment of Temporary Guardian of the Person and Estate and less than two months before the court-ordered psychiatrist's report found Doris to be totally incapacitated. In August 2014, Cumberland filed a Motion to Accept Resignation, Discharge Trustee and Reinstate Trustee, requesting the trial court accept Cumberland's resignation and appoint Thomas as successor trustee. In September 2014, Steven filed answers to Cumberland's motion and Senior Source's petition.
In October 2014, Finley, purporting to act on behalf of Doris, filed a combined opposition to Cumberland's motion, demand for accounting, and motion to enforce a Rule 11 agreement and the Mediation Settlement Agreement. Soon after, Thomas filed a Motion to Show Authority, arguing Finley did not have authority to act as counsel for Doris, since she was adjudicated to be totally incapacitated in the trial court's February 2014 order. That same month, the trial court conducted a hearing on Cumberland's motion, Senior Source's petition, and Thomas's motion. The trial court then entered the following orders: (1) Order Granting Motion to Accept Resignation, Discharge Trustee and Reinstate Trustee; (2) Order Granting Motion to Show Authority; and (3) Order to Revoke Authority of Agent. Steven timely filed his notice of appeal.
Finley filed a notice of his intent to appeal the Order Granting Motion to Show Authority. However, he failed to file a brief on appeal. By letter dated January 20, 2016, we notified Finley the time for filing his brief had expired. We directed Finley to file a brief, or otherwise notify the Court of his intention to pursue his appeal, within ten days of the letter. Finley has failed to file a brief or an extension motion or otherwise correspond with the Court regarding the status of his appeal. Accordingly, we dismiss his appeal. See TEX. R. APP. P. 38.8(a)(1); 42.3(b)(c).
JURISDICTION
In his appellate brief, Thomas challenges the jurisdiction of this Court to consider the issues raised by Steven and raises the question of whether the trial court's orders could be considered final for purposes of appeal. We note that the issues Steven raises relate to (1) the Order Granting Motion to Accept Resignation, Discharge Trustee and Reinstate Trustee and (2) the Order to Revoke Authority of Agent. Thomas argues no statute makes either order a final judgment or grants us jurisdiction to review and that the trial court's orders failed to dispose of at least one issue raised by Steven in his answer to Senior Source's petition, specifically his claim for reimbursement of ongoing expenses related to his visits to his mother's nursing home and the repair of her car for his transportation to the nursing home.
Generally, appeals may be taken only from final judgments. 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." Id. Not every interlocutory order in a probate case is appealable, however, and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal has proved difficult. Id.
This much is clear, however: 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. Id. 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. Id.
We first consider whether any statute grants an immediate right of appeal from the discharge of a successor trustee and the reinstatement of a trustee. Section 51.014(a)(1) of the Texas Civil Practice & Remedies Code allows for interlocutory appeal from an order that "appoints a receiver or trustee." However, appellate courts have consistently held the statute does not apply to orders appointing successor trustees. Haluska v. Haluska-Rausch, 03-11-00312-CV, 2012 WL 254639, at *2 (Tex. App.—Austin Jan. 24, 2012, no pet.) (mem. op.); Epstein v. Hutchinson, No. 01-03-00797-CV, 2004 WL 1689685 (Tex. App.—Houston [1st Dist.] July 23, 2004, pet. denied) (mem. op.) (citing Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2003, no pet.)); In re Estate of Dillard, No. 07-00- 00504-CV, 2001 WL 139082 (Tex. App.—Amarillo Feb. 5, 2001, no pet.) (not designated for publication) ("Although the appointment of a trustee is an appealable interlocutory order pursuant to section 51.014(a)(1), the grandchildren note that an order appointing a successor trustee, as here, is not appealable under section 51.014(a)."); Swate v. Johnston, 981 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998, no pet.) ("Texas courts have consistently held, when construing predecessor statutes with identical language, that an interlocutory order appointing a successor to a permanent receiver is not appealable."). We agree.
We next consider whether any statute grants an immediate right of appeal from the revocation of an agent's authority under a medical power of attorney. None of the parties cites such a statute, and we have found none.
We finally consider whether the challenged orders dispose of all parties or issues in a particular phase of the proceedings. De Ayala, 193 S.W.3d at 578. In his answer to Senior Source's petition, Steven sought the following relief.
• Retention of the medical power of attorney;The trial court's Order to Revoke Authority of Agent disposes of Steven's request for retention of the medical power of attorney, and since Senior Source was successful in its request to revoke Steven's authority, Steven's request for reimbursement of all costs associated with Senior Source's petition was also disposed of. However, neither that order nor any other in the record disposes of Steven's remaining requests.
• Amendment of Doris's "Do Not Resuscitate" order;
• A new bed for Doris at the expense of the nursing home where she lived;
• Additional furniture, such as a recliner, at the expense of the nursing home where Doris lived;
• Passes permitting Steven to take Doris out of the nursing home, as well as oxygen bottles to be provided by the nursing home;
• Reimbursement of costs related to his visits and repair of Doris's car to allow him to transport her (without specifying who would be reimbursing these costs);
• Reimbursement from Senior Source for all costs associated with Senior Source's petition.
We note that the question of whether an answer sets up a counterclaim or is merely defensive must be determined by the facts alleged, and not by the name given the plea or by the particular form of the prayer for relief. Flukinger v. Straughan, 795 S.W.2d 779, 787 (Tex. App.—Houston [14th Dist.] 1990, writ denied). A test for making the determination is to inquire whether the defendant could have maintained a suit to enforce the claim before suit was brought by the plaintiff. Id. If the defendant could have maintained such an independent suit, the claim will be regarded as a setoff or counterclaim that, if pending, would defeat finality. Id. If the suit could not have been maintained, however, it is a defensive plea that would be disposed of in connection with a resolution of the main claim. Id.
Here, Steven's remaining requests that were not addressed by the trial court do not raise any issue on which he could have filed a separate claim. We also note that no legal authority provides Steven with the right of such reimbursement as a person authorized pursuant to a medical power of attorney, nor does the medical power of attorney Doris executed, although Steven references the common law right of quantum meruit in his appellate brief. Under these circumstances, we conclude no remaining parties or issues remain to be disposed of by the trial court's orders. Accordingly, we conclude the trial court's orders were final and that we have jurisdiction to hear this appeal. De Ayala, 193 S.W.3d at 578.
MOTION TO STRIKE
Cumberland has moved in this Court to strike certain documents in the appendix to Steven's appellate brief on the grounds that they were not in the record below. Texas Rule of Appellate Procedure 38.1 requires appellate briefs to contain a statement of facts and clear and concise arguments that are supported by record references. TEX. R. APP. P. 38.1(g), (i). An appellate court generally cannot consider documents cited in a brief and attached as appendices if they are not formally included in the record on appeal. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.).
Cumberland's motion to strike is granted to the extent it requests the Court to disregard evidence that was not before the trial court. We confine our analysis to the record properly before us.
DISCUSSION
I. CROSS-EXAMINATION OF WITNESSES
In his first issue, Steven complains the trial court denied him the right to cross-examine, Karen Ashworth, Cumberland's Vice President and Regional Manager. At the hearing, Ms. Ashworth testified that as a condition of accepting the appointment as trustee, Cumberland required and obtained Steven's agreement that he leave a Trust-owned residence. She further testified Steven refused to vacate by the agreed-upon deadline and refused Cumberland access to the residence to determine its fair market value, which led Cumberland to file its motion to request removal as trustee. After Ms. Ashworth testified on direct and cross-examination by Thomas's attorney, Steven asked to cross-examine her. The judge asked Steven whether he had any suit pending against Cumberland. When Steven admitted he had no suit filed against Cumberland and did not otherwise explain the potential relevance of his cross-examination, the judge denied Steven's request.
To preserve error concerning the exclusion of evidence, including cross-examination, the complaining party must actually offer the evidence and secure an adverse ruling from the court. TEX. R. EVID. 103(a)(2); Love v. State, 861 S.W.2d 899, 902-03 (Tex. Crim. App. 1993); Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 334 (Tex. App.—Dallas 2008, no pet.). While we may be able to discern from the record the nature of the evidence and the propriety of the trial court's ruling, without an offer of proof, we can never determine whether exclusion of the evidence was harmful. Bobbora, 255 S.W.3d at 335. Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to demonstrate its relevance in order to complain of the exclusion on appeal. Id. An offer of proof preserves error for appeal if (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in the reporter's record; and (3) it is made before the charge is read to the jury. Id.
Steven argues that had he been allowed to question Ms. Ashworth, he could have solicited evidence regarding whether Cumberland failed to identify legal encumbrances related to Doris's real-estate assets and whether Cumberland was aware of the existence of a life estate. From his answer to Cumberland's petition, we construe Steven's allegations to be that the residence he refused to vacate was subject to a life estate held by his mother and thus removed from the Trust's ownership. His argument on appeal appears to be that had he been allowed to question Ms. Ashworth, he might have revealed Cumberland's failure to discover the existence of the life estate and its legal effect on whether the residence was a part of the Trust and thus subject to Cumberland's management. He also appears to alternatively argue that Thomas hid the existence of the life estate from Cumberland or that Thomas and Cumberland worked together to somehow circumvent the legal protections afforded to the residence by virtue of the life estate he asserts existed. Neither of these theories was developed before the trial judge in connection with his request to cross-examine Ms. Ashworth. As the record does not contain either an offer of proof at the hearing or a formal bill of exception to preserve Steven's first issue, we overrule Steven's first issue.
When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception. Bobbora, 255 S.W.3d at 335. A formal bill of exception must be presented to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court must sign the bill and file it with the trial court clerk. Id Failure to demonstrate the substance of the excluded evidence results in waiver. Id. --------
In his second issue, Steven argues the trial court unduly constrained his cross-examination of Thomas. After Ms. Ashworth's testimony at the hearing, Thomas testified regarding his history as co-trustee of the Trust and his willingness to be reinstated as trustee. The trial court permitted Steven to ask questions of Thomas, but instead Steven asked the judge how a life estate would be handled in light of the terms of the Trust. The trial court declined to provide legal advice to Steven and called for the next witness. Steven failed to object to any limitation of his cross-examination of Thomas. Reviewing this record, we cannot conclude Steven preserved his second issue for review on appeal. TEX. R. APP. P. 33.1. We overrule his second issue. II. REVOCATION OF MEDICAL POWER OF ATTORNEY
In his third issue, Steven argues the trial court erred by transferring the medical power of attorney from himself to Senior Source. We note that since Steven filed his appeal, Senior Source filed with this Court a suggestion of Doris's death. Due to the death of Doris, any appeal of the order revoking Steven's authority under any medical power of attorney from Doris is moot. See Whatley v. Walker, 302 S.W.3d 314, 320 n.10 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that death of ward made any appeal of the order appointing permanent guardianship over his person moot, but not the issue of guardianship of his estate) (citing Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (per curiam)). We therefore decline to address his third issue as moot. III. REIMBURSEMENT FOR COSTS AND EXPENSES
In his fourth and final issue, Steven complains the trial court erred by failing to address his claims for reimbursement of expenses and costs incurred in his care of Doris. As noted above in our jurisdictional analysis, we found no authority to support Steven's claims for reimbursement. The record reflects that while his claims were included in the prayer of his answer to Senior Source's petition, he did not bring the trial court's attention to his claims or obtain any ruling below on which any claim of error could now be asserted. Accordingly, even if any authority existed to support his claims, Steven failed to preserve his fourth issue for appeal. TEX. R. APP. P. 33.1. We overrule his fourth issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 141495F.P05
JUDGMENT
On Appeal from the Probate Court No. 3, Dallas County, Texas
Trial Court Cause No. PR-13-3072-3.
Opinion delivered by Justice Schenck, Justices Bridges and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Cumberland Trust and Investment Company, Senior Citizens of Greater Dallas, Inc. d/b/a The Senior Source, and Thomas Richard Tipps recover their costs of this appeal from appellant Steven V. Tipps. Judgment entered this 15th day of April, 2016.