                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NO. 2-05-460-CV


IN RE GUARDIANSHIP OF THE
ESTATE OF KATHRYN H. GIBBS,
AN INCAPACITATED PERSON

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               FROM THE PROBATE COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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     Appellant Kenneth Gibbs, as Independent Executor of the Estate of Bert

H. Gibbs, argues that the Denton County statutory probate court lacked

jurisdiction to make certain orders in the Guardianship of Kathryn H. Gibbs

because the guardianship expired as a matter of law years before the probate

court signed the orders. We agree, and we vacate the orders in question.




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         … See T EX. R. A PP. P. 47.4.
                                 Background

      Kathryn Gibbs is the mother of Howard Gibbs, Kenneth Gibbs, Candace

Gibbs Walton, and Appellee Kip Gibbs. Bert Gibbs, deceased, was Kathryn’s

husband. Appellee Sandra Gibbs is Kip’s wife.

      On May 7, 2001, Kip and Sandra filed in the Denton County Probate

Court an application to be appointed temporary co-guardians of Kathryn’s

estate. On the same day, the trial court granted the application and appointed

them as temporary co-guardians until May 17, 2001.

      On May 15, 2001, Kathryn and her court-appointed guardian ad litem

consented to the extension of the order appointing Kip and Sandra as temporary

co-guardians for a period not to extend beyond July 6, 2001, and the probate

court signed a corresponding order on the same day.

      On June 29, 2001, Kip and Sandra filed an application to convert the

temporary guardianship into a permanent guardianship. On July 6, 2001, the

probate court signed another order purporting to extend the order appointing

Kip and Sandra as temporary co-guardians until August 3, 2001. On October

5, 2001, after hearing the application to convert the guardianship from

temporary to permanent, the probate court signed an order purporting to extend

the original order appointing Kip and Sandra as temporary co-guardians yet

again— this time “until further order of [the court].” The probate court also


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ordered another lawsuit—in which Kip, as Kathryn’s next friend, sued his

siblings for restitution and breach of fiduciary duty—transferred and made

ancillary to the guardianship. The final judgment in that case was the subject

of a companion appeal recently resolved by this court. See In re Guardianship

of Gibbs, No. 02-05-00143-CV, 2008 WL 902761 (Tex. App.—Fort Worth Apr.

3, 2008, no pet. h.) (op. on reh’g) (“Gibbs I”). The probate court also ordered

the divorce action pending between Kathryn and Bert in the 362nd District

Court of Denton County transferred to the probate court as a proceeding

ancillary to the guardianship.

      The probate court signed an order purporting to convert the temporary

guardianship to a permanent guardianship on April 27, 2004.

      Thereafter, the probate court signed the five orders underlying this

appeal, as follows:

      (1)   The November 28, 2005 order approving the guardianship’s
            “first annual account” for the period from May 12, 2004,
            through May 12, 2005;

      (2)   The November 28, 2005 order authorizing compensation for
            Kip and Sandra for services rendered as co-guardians from
            May 12, 2004 until May 12, 2005;

      (3)   The January 23, 2006 order authorizing Kip and Sandra to
            employ co-counsel;

      (4)   The January 23, 2006 order authorizing the payment of
            attorney’s fees; and


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      (5)   The February 6, 2006 order authorizing the expenditure of
            certain funds.

                      Procedural History of This Appeal

      Before turning to the merits of the case, we must unravel the tangled

procedural history of this appeal and resolve several pending motions.

      Bert died on December 31, 2004. On September 26, 2005, Probate

Court No. 2 of Tarrant County admitted Bert’s will to probate and appointed

Howard as independent executor of Bert’s estate.      The very next day, for

reasons that do not appear in the record, the Tarrant County probate court

revoked Howard’s letters testamentary but sent notice of the revocation to the

wrong lawyer, and Howard did not learn that the court had revoked his letters

until April 11, 2006. Meanwhile, Howard, acting as independent executor of

Bert’s estate, perfected this appeal on March 20, 2006.

      Kip and Sandra filed a motion to dismiss the appeal on June 20, 2006,

arguing that Howard had no authority to prosecute the appeal because the

probate court had revoked his letters testamentary. On July 11, 2006, the

Tarrant County probate court appointed Kenneth as successor executor of

Bert’s estate and retroactively reappointed Howard as executor from September

27, 2005, through July 11, 2006. On August 18, 2006, we granted Howard’s

motion to substitute Kenneth for Howard as appellant.




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      On September 25, 2006—again, for reasons that do not appear of

record—the Tarrant County probate court set aside its July 11, 2006 order in

its entirety. The next day, the probate court sent a letter to the parties stating

that Bert’s will had not been admitted to probate and that no independent

executor had been appointed to act on behalf of the estate.

      On September 28, 2006, Howard and Kenneth filed their motion in this

court to substitute themselves, personally, as appellants in place of Kenneth as

the independent executor of Bert’s estate. A week later, Kip and Sandra filed

a second motion to dismiss, arguing that the notice of appeal is void because

no one had authority to file the notice on behalf of Bert’s estate.

      Finally, on November 14, 2006, pursuant to a Rule 11 agreement

executed by the parties, the Tarrant County probate court signed an order re-

admitting Bert’s will to probate and re-appointing Kenneth as independent

executor.

      Our August 18, 2006 order substituted Kenneth for Howard as appellant

in his capacity as independent executor of Bert’s estate. The Tarrant County

probate court’s    November 14, 2006         order re-appointing      Kenneth   as

independent executor restored Kenneth’s authority to prosecute the appeal. We

therefore deny Kip and Sandra’s first and second motions to dismiss the appeal;

Kip and Sandra’s motion to reconsider our August 18, 2006 order; and Howard


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and Kenneth’s motion to substitute in as appellants in their personal capacities.

We now turn to the merits of the appeal.

                                   Discussion

      In his sole issue, Kenneth argues that the Denton County probate court

lacked jurisdiction to make the five orders at issue because the temporary

guardianship expired by operation of law on July 6, 2001—years before the

court made the orders. We agree.

      We addressed the same issue in our opinion in the companion appeal,

Gibbs I. The question in the companion appeal was whether the probate court

lacked subject matter jurisdiction over the restitution and breach of fiduciary

duty suit filed by Kip as Kathryn’s next friend and transferred to the probate

court on October 5, 2001.       Gibbs I, 2008 WL 902761, at *2.           Howard,

Candace, and Kenneth argued that the trial court lacked jurisdiction over the

claims because the temporary guardianship expired by operation of law on July

6, 2001. Id. The parties raise most of the same arguments in the instant

appeal.

      Among other holdings, we held in Gibbs I that the temporary guardianship

expired by operation of law on July 6, 2001:

      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. In this case, the sixtieth day after the trial court issued

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      the May 7, 2001 order approving the temporary guardianship was
      July 6, 2001. Appellants did not contest the application for
      temporary guardianship. Therefore, the temporary guardianship
      expired by operation of law on July 6, 2001.

Id. at *5 (citations omitted).   We further held that “[w]hen the temporary

guardianship expired without a contest, the trial court had no authority to

continue the guardianship, or to direct the guardians to further act.” Id. at *6.

      Kip and Sandra proffer several reasons why the probate court had

jurisdiction to make the subject orders even after the temporary guardianship

expired. Kip raised almost all of the same arguments in his brief and motion for

rehearing in the companion appeal, and we analyzed and rejected those

arguments. Id. at *5–7.

      Kip and Sandra make one additional argument in this appeal that was not

raised and rejected in the companion appeal.         They argue that Kenneth

conceded the existence of a temporary guardianship and the trial court’s

jurisdiction by requesting the probate court to transfer an ancillary proceeding

(the divorce suit between Bert and Kathryn) to itself—in essence, that Kenneth

waived the right to contest the probate court’s jurisdiction by requesting the

transfer. But subject-matter jurisdiction cannot be waived and can be raised at

any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d

351, 358 (Tex. 2004).      Thus, we reject Kip and Sandra’s argument that

Kenneth waived subject-matter jurisdiction.

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      We adopt the relevant holdings of our opinion in the companion appeal

and for the reasons therein stated hold that the temporary guardianship expired

as a matter of law on July 6, 2001, and that the only actions the trial court

was authorized to take were those necessary to close the temporary

guardianship and discharge the temporary guardians. See Gibbs I, 2008 WL

902761, at *5. Because the five orders in question in this appeal were not

necessary to close the temporary guardianship and discharge the temporary

guardians, we further hold that the probate court lacked jurisdiction to make the

orders. We sustain Kenneth’s sole issue.

                                  Conclusion

      Having sustained Kenneth’s sole issue, we vacate the following orders of

the probate court:      (1) the November 28, 2005 order approving the

guardianship’s first annual account; (2) the November 28, 2005 order

authorizing compensation for Kip and Sandra for services rendered as co-

guardians; (3) the January 23, 2006 order authorizing Kip and Sandra to

employ co-counsel; (4) the January 23, 2006 order authorizing the payment of

attorney’s fees; and (5) the February 6, 2006 order authorizing the expenditure

of certain funds.

                                                 PER CURIAM

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

DELIVERED: April 17, 2008

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