in the Matter of the Guardianship Kathryn Houseworth Gibbs, as an Incapacitated Person

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-05-143-CV

IN THE MATTER OF
THE GUARDIANSHIP OF
KATHRYN HOUSEWORTH GIBBS,
AS AN INCAPACITATED PERSON

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FROM PROBATE COURT OF DENTON COUNTY

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OPINION ON REHEARING

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We withdraw our opinion of October 5, 2006 and substitute the

following. We deny Appellee’s Motion for Rehearing.

I. Introduction

Howard Kirk Gibbs, Candace Gibbs Watson, and Kenneth Vernon Gibbs

(collectively, appellants) appeal from an adverse judgment for Kip H. Gibbs, as

Next Friend for Kathryn Houseworth Gibbs and Co-Guardian of the Estate of

Kathryn Houseworth Gibbs. In ten issues, appellants contend that (1) the trial
court, which is a statutory probate court, lacked subject matter jurisdiction over

Kip’s claims, (2) the trial court committed harmful error by failing to timely file

findings of fact and conclusions of law, (3)-(4) the trial court erred in holding

appellants liable for tax penalties because that claim was never pleaded, (5)-(8)

the evidence is legally and factually insufficient to support Kip’s claims for

breach of fiduciary duty and restitution and to support the damages awards for

those claims, (9) the trial court erred by removing appellants as trust

beneficiaries, and (10) the court’s award of attorney’s fees is improper because

it lacks a statutory or contractual basis. We reverse the trial court’s judgment

and render judgment dismissing the case.

II. Background Facts and Procedural History

The Mary L. Houseworth Revocable Trust (Houseworth Trust) was

established by Mary L. Houseworth on July 17, 1990. The Houseworth Trust

provided for monthly distributions to Mary’s daughter, Kathryn Houseworth

Gibbs. Upon Kathryn’s death, Kathryn’s four children, the appellants and

appellee herein, were to be the final trust beneficiaries. Mary Houseworth died

in 1991, her will was probated, and the revocable trust became irrevocable.

The Kathryn Houseworth Gibbs Irrevocable Trust (Gibbs Trust) was also

established in 1990. The beneficiaries of the Gibbs Trust were Mary

Houseworth, Kathryn Gibbs, and Kathryn’s four children. The Gibbs Trust

2
provided for distributions to any of the beneficiaries for health emergencies and

provided for coordination of maintenance distributions to Kathryn for her living

expenses. As with the Houseworth Trust, Kathryn’s children were the ultimate

trust beneficiaries.

The Gibbs Trust also provided that, if Kathryn and any three of her four

children agreed in writing, additional trust funds could be removed from the

Trust for Kathryn’s benefit. In 1998, allegedly fearing the circumstances

surrounding the impending Y2K scare, Kathryn and three of her four

children—appellants—signed written authorizations to withdraw $1,015,000

from the Gibbs Trust. Appellants used approximately $701,000 of the money

to purchase gold coins. They also purchased food and other items in

preparation for Y2K.

Kip Gibbs was not consulted regarding the funds withdrawal.

Consequently, in September 2000, Kip filed suit as next friend of Kathryn

against appellants in Denton County Probate Court. In the suit, Kip asserted

claims against appellants for restitution/money had and received and breach of

fiduciary duties related to removal of the trust funds. Kip asked that a

constructive trust be declared over all of Kathryn’s property and assets under

appellants’ control; asked the trial court to “terminat[e] . . . any right, power,

or authority by any of the [appellants] over the Trust assets or the interference

3
with the duly appointed and acting Trustee”; and sought punitive damages and

attorney’s fees.

Thereafter, on May 7, 2001, Kip and his wife Sandra filed an application

for a temporary guardianship over Kathryn’s estate. That same day, the

probate court issued an order approving the guardianship. On May 15, 2001,

the trial court entered an order extending the temporary guardianship until July

6, 2001.1 On July 6, the court entered an order purporting to extend the

temporary guardianship until August 3, 2001.

Meanwhile, on June 29, 2001, Kip filed an application to convert the

temporary guardianship of Kathryn’s estate to a permanent guardianship.

Appellants never contested the application for a temporary guardianship;

however, on July 13, 2001, they contested the application for conversion of

the temporary guardianship into a permanent one.

On October 5, 2001, the trial court again issued an order purporting to

extend the temporary guardianship of Kathryn’s estate “until further order of

1
… The version of probate code section 875(f)(2) in effect in 2001
provided that the ward or her attorney could consent for the order appointing
the temporary guardian to be extended up to 60 days after the date the
application for temporary guardianship was filed. Act of May 30, 1993, 73rd
Leg., R.S., ch. 957, § 1, sec. 875(f)(2), 1993 Tex. Gen. Laws 4081, 4152
(amended 2003) (current version at T EX. P ROB. C ODE A NN. § 875(f)(2) (Vernon
Supp. 2007) (providing for only a 30-day extension by consent)).

4
this court.” Also in the October 5 order, the trial court “transferred as an

ancillary action to this guardianship action” Kip’s restitution and breach of

fiduciary duty claims against appellants. On April 27, 2004, the trial court

entered an order purporting to convert the temporary guardianship over

Kathryn’s estate into a permanent guardianship.

On September 13, 2004, the trial court called the underlying suit to trial,

but appellants did not attend. The trial court rendered a final judgment against

appellants on Kip’s restitution and breach of fiduciary duty claims and awarded

Kip a total of $1,060,799.21 in actual and punitive damages and prejudgment

interest. The trial court also modified the trusts to remove appellants as trust

beneficiaries.

III. The Statutory Probate Court’s Jurisdiction

In their first issue, appellants assert that the trial court, a statutory

probate court, had no subject matter jurisdiction over Kip’s claims against them

for restitution and breach of fiduciary duty. Appellants contend that the district

court had exclusive jurisdiction over these claims and that the guardianship

provided no basis for the trial court’s jurisdiction because it expired by operation

of law on July 6, 2001. Kip contends that the trial court had subject matter

jurisdiction over his restitution and breach of fiduciary duty claims by virtue of

5
former probate code sections 5(d) and 5A(c)– (d) and section 115.001(d) of the

Texas Trust Code.

A. Probate and Trust Codes

A statutory probate court may exercise only that jurisdiction accorded it

by statute.2 Former section 5(e) provides that “[a] statutory probate court has

concurrent jurisdiction with the district court . . . in all actions involving an inter

vivos trust . . . and in all actions involving a testamentary trust.” 3 Likewise,

2
… Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 723 (Tex. App.—Fort
Worth 2004, no pet.).
3
… Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 2, 1989 Tex. Gen.
Laws 4162, 4163 (amended 2001, 2003, 2005) (current version at T EX. P ROB.
C ODE A NN. § 5(e) (Vernon Supp. 2007)). The enabling legislation provides that
the 2001 through 2005 amendments apply only to proceedings commenced on
or after the effective dates of the amendments. Act of May 23, 2005, 79th
Leg., R.S., ch. 551, § 9, 2005 Tex. Gen. Laws 1476, 1480; Act of May 28,
2003, 78th Leg., R.S., ch. 1060, §17(a), 2003 Tex. Gen. Laws 3052, 3057;
Act of May 1, 2001, 77th Leg., R.S., ch. 63, § 3, 2001 Tex. Gen. Laws 104,
106. The underlying suit was filed in September 2000; thus, we apply former
section 5(d) to this case.

Kip also relies on a local rule of the Denton County Probate Court, which
tracks former sections 5(d) and 5A(c) and provides that “[t]he Probate Court of
Denton County, Texas hears: . . . concurrently with the district court, . . . all
actions involving an inter vivos trust . . . and . . . all actions involving a
testamentary trust[.]” D ENTON C OUNTY (T EX.) P ROBATE C OURT L OC. R. 1.2(d).
Because the probate court’s jurisdiction is purely statutory, Mobil Oil Corp., 128
S.W.3d at 723, it cannot confer jurisdiction on itself by local rule beyond what
the legislature has conferred by statute. Cf. In re Stark, 126 S.W.3d 635, 639
(Tex. App.—Beaumont 2004, orig. proceeding) (stating that local rules cannot
allow the transfer of cases from one court to another unless the cases are

6
former section 5A(c) provides that “[a] statutory probate court has concurrent

jurisdiction with the district court in all actions . . . (2) involving an inter vivos

trust; . . . and (4) involving a testamentary trust.” 4 Former section 5A(d)

provides that “[a] statutory probate court may exercise the pendent and

ancillary jurisdiction necessary to promote judicial efficiency and economy.” 5

Because a statutory probate court’s jurisdiction over actions involving

trusts is concurrent with that of the district court,6 the district court’s

jurisdiction over actions involving trusts determines the extent of a statutory

probate court’s jurisdiction over such actions. 7 Section 115.001(a) of the trust

code provides that a district court has original and exclusive jurisdiction—except

for jurisdiction conferred by law on a statutory probate court 8 —over all

proceedings “concerning trusts,” including proceedings to:

(1) construe a trust instrument;

within the jurisdiction of the court to which the cases are transferred).
4
… Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen.
Laws 4162, 4164, repealed by Act of May 28, 2003, 78th Leg., R.S., ch.
1060, § 16, 2003 Tex. Gen. Laws 3052, 3057.
5
… Id.
6
… See id.
7
… Mobil Oil Corp., 128 S.W.3d at 724.
8
… T EX. P ROP. C ODE A NN. § 115.001(d) (Vernon Supp. 2006).

7
 (2) determine the law applicable to a trust instrument;

(3) appoint or remove a trustee;

(4) determine the powers, responsibilities, duties, and liability of
a trustee;

(5) ascertain beneficiaries;

(6) make determinations of fact affecting the administration,
distribution, or duration of a trust;

(7) determine a question of fact arising in the administration or
distribution of a trust;

(8) relieve a trustee from any or all of the duties, limitations, and
restrictions otherwise existing under the terms of the trust
instrument or of this subtitle;

(9) require an accounting by a trustee, review trustee fees, and
settle interim or final accounts; and

(10) surcharge a trustee.9

Texas courts construing section 115.001(a) and its predecessor, Texas Trust

Act article 7425b-24A, have consistently held that these statutes provide the

exclusive list of actions “concerning trusts” over which a district court has

jurisdiction.10

9
… Id. § 115.001(a).
10
… Mobil Oil Corp., 128 S.W.3d at 724 & n.23 and cases cited therein;
In re NationsBank, N.A., No. 01-98-00582-CV, 1999 W L 213100, at *3-5
(Tex. App.—Houston [1st Dist.] April 14, 1999, orig. proceeding) (not
designated for publication) and cases cited therein.

8
 The goal of statutory construction is to give effect to legislative intent.11

Unless a statute is ambiguous,12 we discern that intent from the language of the

statute itself.13 A statutory provision will not be construed to lead to an absurd

result if the provision is subject to another more reasonable interpretation.14

Further, we consider the provisions of a statute as a whole and not in

isolation.15

Kip’s causes of action against appellants for restitution and breach of

fiduciary duty are not enumerated in section 115.001(a), nor do they fall within

its scope. Kip has asserted fraud-type claims against appellants, alleging that

Kathryn was “extremely gullible,” “incapable of protecting her own interests,”

and was “browbeaten,” “cajoled,” and “terrorized” by appellants into signing

11
… Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002);
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).
12
… The parties do not assert that any of the statutes in this case are
ambiguous.
13
… Downs, 81 S.W.3d at 805; see T EX. G OV’T C ODE A NN. § 311.011(a)
(Vernon 2005) (“Words and phrases shall be read in context and construed
according to the rules of grammar and common usage.”); id. § 312.002(a)
(providing that words shall be given their ordinary meaning).
14
… C & H Nationwide, Inc. v. Thompson, 903 S.W .2d 315, 322 n.5
(Tex. 1994), abrogated on other grounds, Battaglia v. Alexander, 177 S.W.3d
893 (Tex. 2005); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.
1991).
15
… Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

9
a blanket authorization for withdrawal of trust funds, which appellants

wrongfully used to take control of the trust property for their own purposes.

None of the categories listed in section 115.001(a) encompasses these types

of claims. “All of [the actions enumerated in section 115.001(a)] involve

actions relating to the trust itself or the operation thereof. None involves

anything remotely resembling a tort action.” 16 Further, nothing in the plain

language of section 115.001(a) authorizes the trial court to modify the trust

documents, as Kip requested, to terminate appellants’ rights as beneficiaries to

the trust assets.

Notwithstanding the statutory limitations on the trial court’s jurisdiction,

Kip contends that the trial court had concurrent jurisdiction with the district

court over his claims because they “relat[ed] to” the Houseworth and Gibbs

Trusts. We decline to read the statutes so broadly.17 The mere fact that trust

funds are implicated by a claim does not transform the claim into one

“concerning” or “involving” trusts.18 Under Kip’s theory, every lawsuit touching

16
… Stark, 126 S.W.3d at 642.
17
… See Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994) (stating
that we may not enlarge the meaning of any word in a statute beyond its
ordinary meaning).
18
… See, e.g., Retzlaff v. Deshay, No. 14-03-00833-CV, 2004 WL
2163173, at *5 (Tex. App.—Houston [14th Dist.] Sept. 28, 2004, no pet.)
(mem. op.) (holding that a claim for breach of fiduciary duty against a trustee

10
on trust funds, however slightly or tangentially, would come within the subject

matter jurisdiction of the statutory probate courts, regardless of the subject

matter. Indeed, construing section 115.001(a) as Kip suggests would render

meaningless the carefully drafted categories enumerated in the statute.19 We

may not construe a statute to lead to an absurd result if it is subject to another

more reasonable interpretation.20 Moreover, we may not construe a statute in

any manner that fails to give effect to all the provisions the legislature enacted

or that reduces any provision to mere surplusage. 21

did not concern a trust within the meaning of section 115.001(a)); Mobil Oil
Corp., 128 S.W.3d at 724-25 (holding that the mere fact that the plaintiff was
a trustee did not transform the suit into one “concerning trusts” under section
115.001(a)); Stark, 126 S.W.3d at 642 (holding that claims for fraud,
conspiracy, and breach of fiduciary duty were not claims “concerning trusts”
within the meaning of section 115.001(a) or claims “involving trusts” within the
meaning of former probate code section 5A(c)); NationsBank, 1999 WL
213100, at *4 (holding proceedings “concerning trusts” under section
115.001(a) did not include claims for negligent misrepresentation, breach of
fiduciary duty, or other torts allegedly committed by the trustee); Mayflower
Trust Co. v. Nowell, 413 S.W.2d 783, 786 (Tex. Civ. App.—Houston 1967,
writ dism’d) (holding that former article 7425b-24A, the predecessor to section
115.001(a), did not cover a suit by trust beneficiaries against the trustee and
others alleging conversion of trust assets, fraud, and other torts).
19
… See Mobil Oil Corp., 128 S.W.3d at 725; NationsBank, 1999 WL
213100, at *4 n.10 (both holding same).
20
… C & H Nationwide, Inc., 903 S.W.2d at 322 n.5.
21
… Mobil Oil Corp., 128 S.W.3d at 725; see State ex rel. State Dep’t of
Highways and Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)
(stating that courts read a statute as a whole and interpret it to give effect to

11
 For these reasons, we hold that Kip’s claims for restitution and breach of

fiduciary duty do not “involve” or “concern” trusts as those terms are used in

the statutes and, therefore, are not within the statutory probate court’s limited

statutory jurisdiction. Accordingly, Kip cannot rely on former probate code

sections 5(d) and 5A(c)–(d) or trust code section 115.001 as a basis for the

trial court’s subject matter jurisdiction in this case.

B. Temporary Guardianship

Next, we consider whether the temporary guardianship provided a basis

for the trial court’s subject matter jurisdiction over Kip’s claims under then

probate code sections 607(d), 608 and 5A(d).

Former Probate Code section 607(d) provides that “[a] statutory probate

court may exercise the pendent and ancillary jurisdiction necessary to promote

judicial efficiency and economy.” 22 Former section 608 provides,

A judge of a statutory probate court, on the motion of a party to
the action or of a person interested in a guardianship, may transfer
to the judge’s court from a district, county, or statutory court a
cause of action appertaining to or incident to a guardianship estate

every part); Helena Chem. Co., 47 S.W.3d at 493 (stating that courts must not
consider statutory provisions in isolation or give one provision a meaning out of
harmony or inconsistent with other provisions).
22
… Act of September 1, 1993, 73rd Leg., R.S., ch 957, §1, 1993 Tex.
Gen. Laws 4081, 4084, repealed by Act of September 1, 2003, 78 th Leg., R.S.,
ch 549, §33, 2003 Tex. Gen. Laws 1858, 1870.

12
 that is pending in the statutory probate court or a cause of action
in which a personal representative of an estate pending in the
statutory probate court is a party and may consolidate the
transferred cause of action with the other proceedings in the
statutory probate court relating to the guardianship estate.23

Kip contends that the guardianship estate created by the trial court’s May

7, 2001 order approving the temporary guardian was pending in the trial court

at the time of the trial court’s October 5, 2001 transfer order, and, therefore,

that the trial court had the authority under section 608 to transfer and

consolidate Kip’s claims with this pending guardianship estate. We disagree.

Probate code section 875(h) provides that a temporary guardianship

expires by operation of law sixty days after the guardianship is commenced,

unless it is contested within the sixty-day period.24 In this case, the sixtieth

day after the trial court issued the May 7, 2001 order approving the temporary

guardianship was July 6, 2001. Appellants did not contest the application for

23
… Act of September 1, 1999, 76th Leg., R.S., ch 1431, §2, 1999 Tex.
Gen. Laws 4876 (amended 2003) (current version at T EX. P ROB. C ODE A NN. §
608 (Vernon Supp. 2007)).
24
… T EX. P ROB . C ODE A NN. § 875(h) (Vernon Supp. 2007) (“Except as
provided by Subsection (k) of this section, a temporary guardianship may not
remain in effect for more than 60 days.”); see In re Guardianship of Soberanes,
100 S.W.3d 405, 407 (Tex. App.—San Antonio 2002, no pet.) (stating that a
temporary guardianship may not remain in effect for more than sixty days
unless it is contested during that time period).

13
temporary guardianship. Therefore, the temporary guardianship expired by

operation of law on July 6, 2001.25

Because the guardianship had expired before the trial court’s attempted

transfer of Kip’s claims, there was no estate pending that would trigger the trial

court’s transfer power under the probate code. 26 The trial court, therefore, had

no authority to transfer the claims by its October 5, 2001 order. The only

actions the trial court was authorized to take were those necessary to close the

guardianship and discharge the temporary guardian.27

Kip contends, however, that his September 2000 lawsuit against

appellants was a contest for purposes of section 875(h) and (k) that gave the

trial court statutory authority to extend the temporary guardianship beyond the

sixtieth day.28 We disagree. The contest referenced in this section refers to a

25
… T EX. P ROB. C ODE A NN. § 875(h); In re Guardianship of Soberanes, 100
S.W.3d at 407.
26
… In re John G. Kenedy Mem’l Found., 159 S.W.3d 133, 145–46 (Tex.
App.– Corpus Christi 2004, orig. proceeding).
27
… T EX . P ROB. C ODE A NN. §§ 878–79 (Vernon 2003). These actions
included reviewing the temporary guardian’s final accounting; “immediately”
ordering the temporary guardian to deliver the estate remaining in the temporary
guardian’s possession to the person legally entitled to possession of it; and
discharging the temporary guardian upon proof that the guardian had delivered
the estate property as required by the statute. Id.
28
… See Act of Sept. 1, 1995, 74 th Leg., R.S., ch 1039, 1995 Tex. Gen.
Laws 5168 (amended 2003)(current version at T EX. P ROB. C ODE A NN. §

14
challenge to the temporary guardianship itself, not to a lawsuit filed by the

temporary guardian against third parties.29 Kip’s September 2000

lawsuit—which predated the temporary guardianship by eight months—did not

contest the temporary guardianship. Consequently, the trial court was not

statutorily authorized to further extend the temporary guardianship by its

October 5, 2001 order.30

Kip also argues that appellants have admitted that they contested the

temporary guardianship before July 6, 2001, because they filed a lis pendens

stating that they had contested the temporary guardianship on May 15, 2001.

The lis pendens states, however, that Kathryn commenced a lawsuit in the

temporary guardianship proceeding against “Kenneth Vernon Gibbs, and

others” 31 on May 15, 2001, the purpose of which was to “protest the

875(k)(Vernon Supp. 2007)) (providing that if temporary guardianship is
contested, trial court may appoint new temporary guardian); In re Guardianship
of Sobranes, 100 S.W.3d at 407 (holding that temporary guardianship may
remain in effect more than sixty days, if contested).
29
… See Act of September 1, 1995, 74 th Leg., R.S., ch 1039, §64, 1995
Tex. Gen. Laws 5168 (amended 2003)(current version at T EX. P ROB. C ODE A NN.
§ 875(k)(Vernon Supp. 2007)).
30
… Once a temporary guardianship expires by operation of law, “a judicial
decree is not available to continue the administration, or to direct the
administrator to further act.” Hurley v. White, 66 S.W.2d 393, 395 (Tex. Civ.
App.–Dallas 1933, no writ).
31
… Kenneth Gibbs is one of the appellants.

15
appointment of unqualified permanent guardians of the Ward, Kathryn

Houseworth Gibbs and protect the estate of said W ard.” Nothing in the lis

pendens shows that Kathryn or appellants contested the temporary

guardianship on May 15, 2001.32

Finally, Kip argues that the trial court had the authority to transfer his

claims against appellants into the expired guardianship because a statutory

probate court does not lose jurisdiction over a temporary guardianship until it

is closed and, in closing the guardianship, the court can exercise jurisdiction

over claims ancillary to the temporary guardianship such as Kip’s claims against

appellants. Kip asserts that the expiration of a temporary guardianship under

section 875(h) is procedural and does not affect the court’s subject matter

jurisdiction.

We agree that a statutory probate court does not lose jurisdiction over an

expired temporary guardianship until it is closed; however, the court’s authority

over an uncontested, expired temporary guardianship is limited by statute. 33 As

32
… Although a contest to an application to convert a temporary
guardianship into a permanent one can preclude the expiration of a temporary
guardianship by operation of law, see Act of Sept. 1, 1995, 74 th Leg., R.S., ch.
1039, §64, 1995 Tex. Gen. Laws 5168 (amended 2003), no such application
was pending in May 2001.
33
… Mobil Oil Corp., 128 S.W.3d at 723; see T EX. P ROB . C ODE A NN. §§
878–79.

16
we have noted, sections 878 and 879 of the probate code only authorize the

court to take those actions necessary to close an uncontested temporary

guardianship and discharge the guardian.34 Such actions do not include

transferring other proceedings into the expired temporary guardianship. Indeed,

to hold that the court had the authority to transfer Kip’s tort claims against

appellants into the expired guardianship would result in the temporary

guardianship continuing indefinitely—in direct contravention of the legislative

intent stated in section 875(h) that an uncontested temporary guardianship may

not remain in effect more than sixty days. 35

34
… T EX. P ROB. C ODE A NN. §§ 878–79. To the extent that In re
Guardianship of Bayne, 171 S.W.3d 232, 238 (Tex. App.—Dallas 2005, pet.
denied), holds that a trial court may continue a temporary guardianship
indefinitely, we believe that Bayne is contrary to section 875 and decline to
follow it. See, e.g., T EX. P ROB. C ODE A NN. § 875(h).
35
… Id. § 875(h); see Nat’l Liability & Fire Ins. Co., 15 S.W.3d at 527
(holding that courts construe statutes to give effect to the legislature’s intent
and presume the legislature intended the plain meaning of its words).

As an aside, we note that a statutory probate court has much broader
statutory authority when it is required to settle a guardianship estate before
closing it. See T EX. P ROB. C ODE A NN. § 606(e) (Vernon Supp. 2007) (setting
forth the extent of a court’s authority when a guardianship is required to be
settled before closure). The settlement of a guardianship estate is a much more
elaborate process than the mere closure of one. See id. §§ 746, 748–58
(Vernon 2003), § 747 (Vernon Supp. 2007). An uncontested, expired
temporary guardianship is not required to be settled, however, but only closed.
See id. § 745 (omitting the expiration of an uncontested temporary
guardianship by operation of law from the list of circumstances in which a

17
 For all of these reasons, we hold that the trial court lacked statutory

authority to transfer into the expired temporary guardianship Kip’s claims

against appellants and that the court’s October 5, 2001 order purporting to do

so is void. 36 Thus, Kip cannot rely on the temporary guardianship as a basis for

the trial court’s subject matter jurisdiction in this case.

C. Application to Convert Temporary
Guardianship to Permanent Guardianship

On rehearing, Kip contends, among other arguments, that his Application

to Convert the Temporary Guardianship of the Estate to Permanent

Guardianship of the Estate meets the statutory requirements of an application

for permanent guardianship under section 682 of the probate code, 37 and that,

because the application was pending and contested by appellants, the trial

court had the authority to appoint a temporary guardian and transfer Kip’s

guardianship estate must be settled). Kip’s reliance on In re Guardianship of
Soberanes as support for his argument that an uncontested, expired temporary
guardianship must be both settled and closed is misplaced. That case involved
a contested temporary guardianship, not an uncontested one that had expired
by operation of law. 100 S.W.3d at 406-07.
36
… See DB Entertainment, Inc. v. Windle, 927 S.W.2d 283, 289 (Tex.
App.—Fort Worth 1996, orig. proceeding) (holding that statutory probate
court’s order transferring a case to itself without statutory authority was void).
37
… Act of Sept. 1, 1999, 76 th Leg., R.S., ch. 829,§4, 1999 Tex. Gen.
Laws 3461, 3462(amended 2003)(current version at T EX. P ROB. C ODE A NN. §
682 (Vernon Supp. 2007)).

18
claims into the permanent guardianship proceeding. As we have noted,

however, there was no guardianship estate pending in the trial court at the time

it attempted to transfer Kip’s claims. The mere filing of an application for

permanent guardianship in the trial court did not create a guardianship estate

or cause a guardianship estate to be “pending” for the purpose of the transfer

statute.38

Nor did the trial court’s attempts to extend the expired temporary

guardianship while the application for permanent guardianship was pending

cause a guardianship estate to be pending for the purpose of the transfer

statute. When the temporary guardianship expired without a contest, the trial

court had no authority to continue the guardianship, or to direct the guardians

38
… In re John G. Kenedy Mem’l Found., 159 S.W.3d at 145-46; Pratho
v. Zapata, 157 S.W.3d 832, 840 (Tex. App.–Fort Worth 2005, no pet.).
Because the probate court must determine that a guardianship is necessary
before appointing a guardian, merely instituting proceedings in the probate court
by filing an application for guardianship does not guarantee that a guardian will
be appointed. If the court declines to appoint a permanent guardian, it is
illogical to conclude that a guardianship estate was pending from the time of
filing until the court’s refusal. See Pratho, 157 S.W.3d at 840.

19
to further act.39 Accordingly, the attempt by the trial court on October 5, 2001

to extend the expired temporary guardianship was of no effect.

The only procedure available to the trial court for appointing a new

temporary guardian pending its determination of Kip’s contested application for

permanent guardianship is that set forth in section 875 of the Probate Code.

Section 875(g) provides, in relevant part, that if

the court determines that the applicant [for a temporary
guardianship] has established that there is substantial evidence that
the person is a minor or other incapacitated person, that there is
imminent danger that the physical health or safety of the
respondent will be seriously impaired, or that the respondent’s
estate will be seriously damaged or dissipated unless immediate
action is taken, the court shall appoint a temporary guardian by
written order. The court shall assign to the temporary guardian
only those powers and duties that are necessary to protect the
respondent against the imminent danger shown. The powers and
duties must be described in the order of appointment.40

Additionally, section 875(k) provides,

If an application . . . for a permanent guardianship is challenged or
contested, the court, on the court’s own motion or on the motion

39
… See supra notes 26-27 and accompanying text; see also Hurley, 66
S.W.2d at 395 (“The administration being closed by operation of law and the
very terms of the order of the court making the appointment . . . a judicial
decree is not available to continue the administration, or to direct the
administrator to further act.”).
40
… Act of Sept. 1, 1993, 73 rd Leg., R.S., ch. 957, §1, 1993 Tex. Gen
Laws 4081, 4152 (amended 2003)(current version at T EX. P ROB. C ODE A NN. §
875(g)(Vernon Supp. 2007)).

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 of any interested party, may appoint a new temporary guardian
without issuing additional citation if the court finds that the
appointment is necessary to protect the proposed ward or the
proposed ward’s estate. A temporary guardian appointed under
this subsection must qualify in the same form and manner required
of a guardian under this code. . . . 41

The record shows that the trial court did not attempt to qualify a new

temporary guardian “in the same form and manner required of a guardian” under

the code after the original temporary guardianship expired on July 6, 2001.42

Therefore, no estate was pending when the trial court attempted to transfer

Kip’s claims. The trial court, therefore, had no transfer jurisdiction over the

claims.

In summary, neither the probate code, the trust code, the temporary

guardianship, nor the application to convert the temporary guardianship to a

permanent guardianship gives the trial court subject matter jurisdiction over

Kip’s tort claims against appellants for restitution and breach of fiduciary duty.

Accordingly, we hold that the trial court lacked subject matter jurisdiction over

41
… Act of September 1, 1995, 74 th Leg., R.S., ch 1039, §64, 1995 Tex.
Gen. Laws 5168 (amended 2003)(current version at T EX. P ROB. C ODE A NN. §
875(k)(Vernon Supp. 2007)).
42
… Id.

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those claims and that its judgment rendered against appellants on the claims is

void.43 We sustain appellants’ first issue.44

IV. Conclusion

Having sustained appellants’ first issue, we vacate the trial court’s

judgment and render judgment dismissing the cause. 45 Appellee’s Motion for

Rehearing is denied.

JOHN CAYCE
CHIEF JUSTICE

PANEL A: CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: April 3, 2008

43
… See DB Entertainment, 927 S.W.2d at 289; see also Mapco, Inc. v.
Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (stating that a judgment is void
“when it is apparent that the court rendering the judgment had . . . no
jurisdiction of the subject matter”).
44
… In light of our disposition of this issue, we need not consider
appellants’ and appellee’s other issues or arguments. See T EX. R. A PP. P. 47.1
(providing that an appellate court need address only issues raised that are
necessary to the final disposition of the appeal).
45
… T EX. R. A PP. P. 43.2(c); see Mobil Oil Corp., 128 S.W.3d at 725-26
(vacating orders in cases over which the statutory probate court had no subject
matter jurisdiction and dismissing the cases).

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