In re Semrad

1

IN THE MATTER OF THE GUARDIANSHIP OF JUDY R. SEMRAD, AN INCAPACITATED PERSON

No. 01-21-00491-CV

Court of Appeals of Texas, First District

August 29, 2023

On Appeal from the County Court at Law No. 4 Fort Bend County Texas Trial Court Case No. 20-CPR-034009

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

MEMORANDUM OPINION

Gordon Goodman Justice

Staci Semrad appeals from the county court's final judgment closing the guardianship of her late mother. In a dozen issues, she challenges the final judgment and various rulings the county court made before or after the entry of judgment. For the reasons explained below, we reverse the county court's judgment and remand this cause to the county court for further proceedings consistent with our opinion.

BACKGROUND

In 2015, Probate Court No. 1 of Bexar County appointed David Semrad as the permanent guardian of his wife, Judy Semrad and as the permanent community administrator of their community estate.

In 2019, David and Judy moved to Katy to be closer to family and the guardianship was transferred to Fort Bend County.

In January 2021, David died. One of David and Judy's daughters, Staci Semrad, applied in County Court at Law No. 4 of Fort Bend County to be appointed successor guardian of Judy's person and community administrator. Their other daughter, Tavi Sellers, subsequently applied for appointment as well, resulting in a contested guardianship proceeding.

Staci and Tavi contemporaneously executed a Rule 11 agreement regarding the guardianship proceeding. Among other things they agreed that:

• Staci would be appointed guardian of Judy's person at the final hearing and would make all treatment and residential decisions in the interim;

• Tavi would be appointed guardian of Judy's estate at the final hearing, which consisted of a retirement account, motor vehicles, and a home; and

• Tavi, as executor of David's will, would probate his will so that the home could be sold "in the guardianship and in decedent's estate."

Staci and Tavi also agreed the latter would seek appointment of an attorney ad litem to represent Judy in the contested guardianship proceeding. Tavi did so, and the county court appointed Alicia Klosowsky as attorney ad litem.

In April 2021, Klosowsky moved for the appointment of a guardian ad litem to represent Judy's interest. The county court appointed Amber Homolka to this position, and it directed Homolka to interview Judy, investigate the need for guardianship, and file a written report concerning Judy's best interest.

In May 2021, Staci twice supplemented her guardianship application. In her supplements, she stated she had incurred expenses in caring for her mother. She also stated she had incurred legal fees due to her need for representation in the guardianship proceeding. Staci requested reimbursement of her expenses and the award of her fees.

That same month, the county court held an emergency hearing at Homolka's request due to concerns that had been expressed about Judy's medical care. At the hearing, the county court heard testimony from three witnesses: Staci, Tavi, and Homolka. Afterward, the county court discharged Homolka as guardian ad litem and appointed her as the temporary guardian of Judy's person. Within a week or so, the county court also entered an order approving $2,633.75 in fees to Homolka for the legal services she had rendered in her capacity as guardian ad litem. The court ordered the county to pay these fees.

Judy died later in May, while the proceeding remained pending.

In early June 2021, Klosowsky applied for payment of her legal fees as attorney ad litem in the amount of $3,637.50. The county court approved her fee application and ordered this amount to be paid from Judy's estate. In the same order, the court discharged Klosowsky as attorney ad litem.

On June 10, Tavi nonsuited her guardianship application.

The same day that Tavi filed her nonsuit, she and Homolka earlier filed a joint final report seeking to discharge Homolka as temporary guardian and close the guardianship and community administration. Tavi joined the final report in her capacity as the independent executor of David's estate.

On June 11, the county court signed an order approving the joint final report and decreed that Judy's "guardianship of the person, her community administration, and her temporary guardianship are closed." In the same order, the court also discharged Homolka as temporary guardian of Judy's person. A date-time stamp on the court's order reflects that it was not filed until June 30.

In the interim between the signing of the order closing the guardianship proceeding on June 11 and the filing of the order on June 30, Staci filed an application for reimbursement on June 23. In total, she sought to be reimbursed for $6,716.69 in expenses from Judy's estate. This amount primarily consisted of travel and lodging expenses incurred in caring for Judy during the pendency of the contested guardianship proceeding. Staci attached various receipts.

Staci contemporaneously filed a separate application for the payment of attorney's fees she incurred in the contested guardianship proceeding. She sought $17,772.81. She relied on section 1155.054 of the Texas Estates Code and sought payment from Judy's estate. Staci supported her fee application with an affidavit made by her lawyer and his billing records.

Tavi moved to dismiss Staci's applications on the ground that Judy's death made all guardianship-related matters moot and deprived the county court of jurisdiction, with the exception of addressing the fees of court-appointed lawyers. Tavi maintained that Staci's applications for reimbursement and fees instead had to be presented to the administrator of Judy's probate estate.

In response, Staci argued that Tavi had nonsuited her guardianship application and thus was a nonparty without standing to oppose the relief Staci sought. Staci further argued that the county court presiding over the guardianship proceeding was the only forum with the authority to entertain her applications for reimbursement and fees, even if an award must ultimately be paid out of Judy's probate estate.

The record does not contain rulings on Staci's applications for reimbursement or fees. Nor does it contain a ruling on Tavi's motion to dismiss these applications.

In early July 2021, Staci moved for reconsideration of the county court's order closing the contested guardianship proceeding without considering her applications for reimbursement and fees. Staci argued that because the court's order was signed June 11 but only filed June 30, she did not have the opportunity to object to either the closure of the guardianship proceeding or the approval of the temporary guardian's final report. Tavi opposed the motion for reconsideration. Both parties briefed the issues, primarily focusing on whether the county court had jurisdiction to consider Staci's applications for reimbursement and fees after Judy's death.

The county court held a hearing on Staci's motion for reconsideration in late August 2021. Two days later, on August 25, the court denied her motion for reconsideration. In doing so, the county court explained that it had only ever appointed a temporary guardian of Judy's person, but not a guardian as to Judy's estate (or successor community administrator), after David's death. Though the court was not explicit on this point, it seems to have agreed with Tavi's position that the county court lacked jurisdiction to consider Staci's applications, given that Judy had died after David, which resulted in there being no ward or ward's estate.

On September 1, the county court awarded Homolka $2,293.90 for legal services rendered in her capacity as temporary guardian. The court specified that the award was "to be paid by the ward's estate." Though the county court had already discharged Homolka as temporary guardian in its June 11 order, the court's September 1 order also stated it was discharging her.

Staci then filed her notice of appeal roughly one week later.

DISCUSSION

Staci who is pro se on appeal, challenges several of the county court's rulings. She does so in twelve separate issues, many of which are essentially intertwined.

Refusal to Consider Reimbursement and Fee Applications

In her fourth and fifth issues, Staci contends the county court erred both in rendering a final judgment without first considering her applications for reimbursement and attorney's fees and in denying her motion for reconsideration.

Staci maintains that the county court's final judgment-its decision closing the guardianship proceeding-and its refusal to reconsider that decision and reopen the guardianship proceeding are erroneous because the county court failed to heed controlling precedent. In particular, she argues the county court erroneously concluded it lacked subject-matter jurisdiction to hear her applications due to Judy's death. Staci posits that whether she is entitled to reimbursement of expenses or attorney's fees remains a justiciable controversy even after the death of the ward.

Standard of Review

In general, we review a motion for reconsideration, which in this instance is the equivalent of a motion for new trial for an abuse of discretion. See, e.g., Mullins v. Martinez R.O.W., LLC, 498 S.W.3d 700, 705 (Tex App.-Houston [1st Dist.] 2016, no pet.) (reviewing trial court's rulings on motion to reconsider summary judgment and motion for new trial for abuse of discretion). A trial court abuses its discretion when, among other things, its decision is contrary to law. Epstein v. Hutchison 175 S.W.3d 805, 807 (Tex. App.-Houston [1st Dist.] 2004, pet. denied); see also Harold v. Carrick, No. 01-12-00175-CV, 2013...