Opinion
NO. 01-17-00186-CV
05-01-2018
CAROL MERSCH, Appellant v. TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, AS GUARDIAN OF THE PERSON AND ESTATE OF JOHN STOUT, Appellee
On Appeal from the 344th District Court Chambers County, Texas
Trial Court Case No. CV-26248
MEMORANDUM OPINION
Carol Mersch appeals the dismissal of her counterclaim for declaratory relief against the Texas Health and Human Services Commission (HHSC), as the guardian of John Stout. Because it is no longer John Stout's guardian and Stout is deceased, HHSC has moved to dismiss the appeal as moot. We grant the motion and dismiss the appeal.
Background
HHSC's predecessor, the Texas Department of Aging and Disability Services (DADS), was appointed to be the permanent guardian of the person and estate of John Stout. The guardianship proceeding was styled In the Matter of the Guardianship of John Stout, cause number CV-25849 and was pending in the 344th Judicial District Court of Chambers County.
HHSC replaced DADS as Stout's guardian on September 1, 2016. In 2015, the Texas Legislature reorganized DADS and four other Health and Human Services agencies and incorporated them into another state agency, the Texas Health and Human Services Commission (HHSC). TEX. S.B. 200, 84TH LEG., R.S. (2015). Effective September 1, 2016, the guardianship program of DADS became part of HHSC. For simplicity, DADS and HHSC are referred to collectively as HHSC.
During its guardianship, HHSC sued Mersch, seeking the return of property that it claimed belonged to Stout—in particular, certain Lunar Bibles and related memorabilia in Mersch's possession. During the 1960's, Stout headed the Apollo Prayer League, a group of Christian men involved in the aerospace industry in the NASA area of Houston. The Lunar Bibles are microfilmed Bibles that some member astronauts carried into space on Apollo lunar missions.
The dispute with Mersch proceeded in a separate case from the guardianship, and was styled Texas Department of Aging and Disability Services, as Guardian of the Person and Estate of John Stout v. Carol Mersch and Heritage Auctions, Inc., under cause number CV-26248, and also was pending in the 344th Judicial District Court of Chambers County, Texas.
Heritage Auctions, Inc. was non-suited in open court on October 9, 2012.
Mersch counterclaimed against HHSC "as guardian of the person and estate of John Stout." Mersch sought declarations that (1) the Lunar Bibles and related memorabilia were property of other entities, not Stout; and (2) she owned these entities and their property, including the Lunar Bibles and related memorabilia. Mersch requested declarations that she is the owner of (1) Aerospace Ministries, Apollo Prayer League, APL News Service, and The Association of Space Support Chaplains; and (2) all Aerospace Ministries and Apollo Prayer League property, including "Apollo 12 miniature bound Bibles, Apollo 13 and 14 microfilm Lunar Bibles, the Lunar Bible registry, supporting Lunar Bible documentation and certification."
Mersch also sought a permanent injunction against HHSC, requiring HHSC to "deliver all Aerospace Ministries and Apollo Prayer League property to Carol Mersch," and enjoining HHSC from "delivering any Aerospace Ministries and Apollo Prayer League property to any person or entity other than Carol Mersch." Mersch later nonsuited her claims seeking injunctive relief against HHSC, and she has not reasserted them.
In the trial court, HHSC filed a plea to the jurisdiction, seeking dismissal of Mersch's counterclaims on the basis that (1) the counterclaims against HHSC were barred by sovereign immunity and (2) Mersch lacked standing because she sought declarations addressing the rights of third parties. The trial court granted the plea to the jurisdiction and dismissed Mersch's counterclaims with prejudice.
Stout died on December 8, 2016. After his death, HHSC nonsuited with prejudice the claims that it had asserted against Mersch. With HHSC's claims nonsuited, and Mersch's counterclaims dismissed with prejudice, the trial court issued a final order on December 16, 2016, dismissing the entire cause with prejudice.
On January 12, 2017, Mersch moved for new trial, requesting that the trial court reinstate her counterclaims. Mersch argued that, although HHSC would no longer be a party to the litigation once discharged as Stout's guardian, HHSC should be replaced by the administrator of Stout's probate estate, against whom her counterclaims could be asserted. On January 25, 2017, Mersch filed a motion for reconsideration and restatement of her counterclaims, further requesting that she be allowed to amend her pleadings to assert her counterclaims against Stout's estate. On February 16, 2017, the trial court denied Mersch's motion for new trial and her motion for reconsideration.
On May 25, 2017, the guardianship court issued an order approving HHSC's account for final settlement of the estate. Pursuant to its order, HHSC delivered all property at issue in the case to the registry of the court. On May 25, 2017, the court issued an order formally closing the guardianship and discharging HHSC.
Discussion
HHSC has moved to dismiss Mersch's appeal from the dismissal of her counterclaim for declaratory relief, as moot because Stout has died, the guardianship has been closed, and HHSC is no longer Stout's guardian.
Appellate courts lack jurisdiction to decide moot controversies and render advisory opinions. Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). "A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer 'live,' or if the parties lack a legally cognizable interest in the outcome." Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). The same is true if an appellate court's judgment cannot have any practical legal effect upon a then existing controversy. Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) ("An appeal is moot when a court's action on the merits cannot affect the rights of the parties.").
A. The Closed Guardianship Proceeding
HHSC observes that the trial court has lost jurisdiction over the guardianship proceeding, which was closed with a final order that discharged HHSC as guardian in May 2017. But the guardianship proceeding and the litigation in which Mersch filed her counterclaims are separate cases.
Although the litigation with Mersch was ancillary to the guardianship, the suit was a separate action. In contending that the final guardianship order mooted this controversy, HHSC relies on In re Guardianship of Moon, 216 S.W.3d 506 (Tex. App.—Texarkana 2007, no pet.). In Moon, the court of appeals held that it could not remand a judgment, issued in the guardianship proceeding, regarding the ownership of bank accounts for further proceedings after the guardianship had been closed. The court noted that, for this reason, ancillary suits should be filed outside of the guardianship proceeding:
This scenario highlights the problem that can be caused by pursuing—inside the guardianship proceeding—an action that is properly a lawsuit separate and apart from the guardianship proceeding and the management of the ward's estate. The ward dies, the proceeding ends, and all parties are placed in a legal limbo of their own construction.Moon, 216 S.W.3d at 510 n.1. Here, the suit over ownership of the Lunar Bibles was properly filed as a separate action apart from the guardianship proceeding and, thus avoided the issue recognized in Moon.
B. Live Controversy
Although Mersch's claims for declaratory relief initially involved a dispute between the parties as to ownership of the property at issue, there is no longer a live controversy between the parties. HHSC has been discharged as Stout's guardian. Any declaration regarding ownership of the disputed property cannot affect Mersch's rights against HHSC. Mersch's assertion that an administrator of Stout's estate should be appointed is insufficient to demonstrate a live dispute; the record does not demonstrate that an administrator has been appointed, or that an administrator has intervened or been sued by Mersch. Thus, no party to the case has the capacity to dispute Mersch's rights to property that she asserts is hers. For a declaratory judgment to be appropriate, there must be "a genuine conflict of tangible interests and not merely a theoretical dispute." Tanglewood Homes Ass'n, Inc. v. Feldman, 436 S.W.3d 48, 65 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). In the absence of a live controversy, the case is moot.
Further, Mersch's claims for injunctive relief are moot because they were nonsuited. A nonsuit "renders the merits of the nonsuited case moot." Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Mersch did not move to reinstate the nonsuited claims and the trial court has lost plenary power to reinstate the claims. See TEX. R. CIV. P. 329b(d) (limiting trial court's plenary power to reinstate case to 30 days after final judgment); Quanto Int'l Co. v. Lloyd, 897 S.W.2d 482, 485 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding) (holding that trial court may reinstate nonsuited cause while it retains plenary power).
Mersch argues that her counterclaims should be construed as brought against Stout's estate, not HHSC. But her counterclaims were asserted against HHSC in its capacity "as guardian of the person and estate of John Stout," and she does not claim that HHSC is the administrator of the estate. Mersch provided no authority to support her contention that her claims should be construed to have been also brought against Stout's estate. Stout was adjudicated incapacitated, and thus he could not be sued in his individual capacity during the guardianship; HHSC took on that role, but it ended when he died. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). Mersch's counterclaims, filed during Stout's guardianship, could only be brought against his guardian, HHSC, which has authority to "defend suits . . . against the ward." TEX. EST. CODE § 1151.101(a)(4).
Similarly, Mersch's claims now can only be asserted against Stout's estate. Mersch asserts that we should remand the case to the trial court to allow a substitution to take place through opening a probate estate, appointing an administrator, and then substituting that administrator for HHSC. See TEX. R. CIV. P. 152 ("Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir."). But that administrator would not substitute for HHSC. It would instead represent the estate of John Stout in a separate proceeding against the estate. See id.
Conclusion
There is no longer "a justiciable controversy between the parties" with respect to Mersch's dismissed counterclaims. Heckman, 369 S.W.3d at 162. HHSC, the only defendant, has been discharged as guardian, Stout is deceased, and there is no estate administrator to join in the suit because a probate estate has not been initiated. Because our decision cannot have an effect on an existing controversy between the parties to the appeal, we hold that the appeal is moot. Accordingly, without reference to the merits, we dismiss the appeal as moot.
Jane Bland
Justice Panel consists of Justices Bland, Lloyd, and Caughey.