Opinion filed February 24, 2011




                                                         In The


   Eleventh Court of Appeals
                                                     __________

                                              No. 11-09-00340-CV
                                                  __________

 MORRIS CLAYTON HOWELL, AN INCOMPETENT PERSON, BY HIS
 NEXT FRIEND, BROTHER AND ATTORNEY, LEONARD HOWELL,
                       Appellant

                                                             V.

                    CHRISTOPHER D. THOMPSON ET AL, Appellees


                                  On Appeal from the 238th District Court

                                              Midland County, Texas

                                       Trial Court Cause No. CV-46,904


                                    MEMORANDUM OPINION

       Leonard Howell filed a petition in district court on behalf of his brother, Morris Clayton
Howell,1 based upon an alleged conspiracy surrounding the appointment of a guardian for
Morris. In an earlier proceeding in a different court, Morris had been declared to be totally
incapacitated, and his granddaughter, Sarah Rock, had been appointed to be the permanent
guardian of Morris‘s person and estate. After Leonard filed this suit on behalf of Morris, Rock,

       1
           We note that Morris passed away while this appeal was pending.
as Morris‘s guardian, intervened and filed a motion to dismiss. The trial court granted the
motion and entered an order dismissing with prejudice all of the claims2 brought by Leonard on
his brother‘s behalf. We affirm.
         Appellant presents five points of error on appeal. In the first point, he complains that
Rock‘s motion to dismiss was not verified. In his second point, appellant contends that the trial
court failed to recognize the theory of this suit:                  that the conspirators, including Morris‘s
guardian, committed fraud on the guardianship court to gain control over Morris and that Rock
was disqualified to serve as the guardian.                   In the third point, appellant argues that the
guardianship was void and that the court in this case erred in finding it to be valid. In the fourth
point, appellant argues that the trial court erred in failing to grant his request to require Rock to
allow Morris to confer with his attorney, Leonard, thereby depriving Morris of a fair trial. In his
final point, appellant contends that the trial court erred in concluding that the guardianship was
legally valid.
         The record shows that Rock, in her capacity as Morris‘s guardian, filed a motion to
dismiss in which she asserted that she was the guardian and legal representative of Morris, that it
was inappropriate under TEX. R. CIV. P. 443 for Leonard to attempt to bring suit as Morris‘s next
friend, that Leonard was not Morris‘s attorney, that Rock was the only person with legal standing
to bring an action on Morris‘s behalf, and that Leonard lacked authority and standing to bring
suit on behalf of Morris. Rock‘s motion to dismiss was not verified. Appellant asserts on
appeal, as he did in the trial court in his motion to cancel or reform the order of dismissal, that
TEX. R. CIV. P. 93 requires Rock‘s motion to be verified. Pursuant to Rule 93, a pleading
challenging a plaintiff‘s legal capacity to sue or a plaintiff‘s entitlement to recover in the
capacity in which he sues ―shall be verified by affidavit‖ ―unless the truth of such matters appear
of record.‖ Rule 93(1), (2). Rock‘s pleading need not be verified because her status as the legal
guardian of Morris‘s person and estate appears of record in this case. See Rule 93; InvestIN.com
Corp. v. Europa Int’l, Ltd., 293 S.W.3d 819, 825 (Tex. App.—Dallas 2009, pet. denied);
Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116-17 (Tex. App.—Corpus Christi 1995, writ
denied). In the petition, appellant admitted that Rock had been appointed the legal guardian of

         2
          Those sued include Christopher D. Thompson; Sarah Rock, guardian of the person and estate of Morris Clayton
Howell; Sarah M. Rock, individually; and The Bible Church of Midland, Texas.
         3
           Rule 44 provides that ―persons non compos mentis who have no legal guardian may sue and be represented by ‗next
friend‘‖ under certain rules.

                                                            2
Morris‘s person and estate. The order appointing Rock as Morris‘s permanent guardian was
attached to the original petition filed by appellant in the trial court. Therefore, Rock was not
required to verify her pleading.
       Furthermore, as a general rule, when a person has been declared to be incapacitated and a
guardian has been appointed, only the guardian of the ward‘s estate may bring a lawsuit on
behalf of the ward.     In re Guardianship of Archer, 203 S.W.3d 16, 21-24 (Tex. App.—
San Antonio 2006, pet. denied); see TEX. PROB. CODE ANN. §§ 772, 773 (Vernon 2003), § 768
(Vernon Supp. 2010). Appellant‘s first point of error is overruled.
       In the remaining points, appellant attacks the validity of the guardianship and complains
of acts committed by Rock and others with respect to the guardianship. At the outset, we note
that Morris is now deceased and that a guardianship terminates upon the death of the ward. TEX.
PROB. CODE ANN. § 694 (Vernon 2003). Rock‘s qualification to serve as guardian is now moot.
Moreover, to the extent that appellant‘s suit constituted an attack on the validity of the
guardianship or the appointment of Rock as the guardian, dismissal was the proper remedy.
Jurisdiction for such proceedings lay exclusively in the guardianship court – the Midland County
Court-at-Law – not in the district court where appellant filed this suit. TEX. PROB. CODE ANN. §
606 (Vernon Supp. 2010); Wood ex rel. Green v. Dalhart R & R Machine Works, Inc., 259
S.W.3d 229 (Tex. App.—Amarillo 2008, no pet.); see also Bailey v. Cherokee County Appraisal
Dist., 862 S.W.2d 581 (Tex. 1993). Appellant‘s second, third, fourth, and fifth points of error
are overruled.
       The order of the trial court is affirmed.


                                                       PER CURIAM


February 24, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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