                                   NO. 07-07-0275-CV

                                IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                               DECEMBER 12, 2008
                         ______________________________

                          IN THE GUARDIANSHIP OF
               MARY JANE OLIVARES, AN INCAPACITATED PERSON
                     _________________________________

             FROM THE PROBATE COURT NO. 1 OF BEXAR COUNTY;

        NO. 2005-PC-3671; HON. POLLY JACKSON SPENCER, PRESIDING
                     _______________________________

                                Memorandum Opinion
                         ________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Appellant Dennis Olivares, pro se, appeals from an order granting 1) a motion in

limine wherein he was barred from participating in a guardianship proceeding he initiated,

2) an application requiring the payment of money as security for costs, and 3) a temporary

injunction. The guardianship proceeding he initiated involved his mother, Mary Jane

Olivares. He sought to be appointed her guardian. The motions that the trial court granted

were filed by David A. Wise (Wise), the attorney ad litem for Mrs. Olivares. We affirm,

reverse, and dismiss in part.

      Motion in Limine

      Via the motion in limine, Wise asserted that Olivares lacked standing to participate

in the guardianship proceeding due to an adverse interest. The latter consisted of owing
his mother and her estate substantial sums of money. The trial court granted the motion,

which decision Olivares now attacks.1 We overrule his complaint.

        Whether a party has standing to participate in a guardianship proceeding is a

question of law. We review the matter de novo. Cleaver v. George Staton Co., 908

S.W.2d 468, 472 (Tex. App.–Tyler 1995, writ denied); Betts v. Brown, No. 14-99–00619-

CV, 2001 Tex. App. LEXIS 329 at *7-8 (Tex. App.–Houston [14th Dist.] January 18, 2001,

no pet.).

        Next, § 642 of the Probate Code provides that a person who has an interest adverse

to a proposed ward may not 1) file an application to create a guardianship for that person,

2) contest the creation of a guardianship for that person, 3) contest the appointment of a

person as a guardian of the person or the estate or both, or 4) contest an application for

complete restoration of a ward’s capacity or modification of a ward’s guardianship. TEX .

PROB. CODE ANN . §642(b) (Vernon 2003). Olivares’ attack on the trial court’s decision has

two components. First, he contends that his opponent failed to prove that he will never pay

the debt to his mother. Then, he believes that owing money to his mother does not

constitute an adverse interest sufficient to prevent him from participating in the

guardianship proceeding. We disagree given the record before us.

        The amount of money that he owes his mother approximates $80,000. The exact

sum due is unknown because he tracks his loans “loosely” and ”the nature of the

repayment is somewhat far off.” Moreover, he has no job (though he is apparently well-

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           The trial court’s order states that Olivares does not have standing to “file or am end any application
to create a guardianship for the Proposed W ard; . . . does not have standing . . . to contest the creation of a
guardianship for the Proposed W ard; and, . . . does not have standing in this cause to contest the appointm ent
of [his sister Rebecca], or any other person, as the guardian of the person or of the estate of the Proposed
W ard.”

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educated and highly skilled) and lives in his mother’s house. She lives elsewhere and,

according to him, has a finite estate. Yet, her assets have been used by him to pay for his

credit cards, his attorneys, and a lawsuit he initiated against a local municipality, among

other things.   Simply put, loans from Mrs. Olivares’ assets support him, as he

acknowledged. Most troubling though is that many of the loans and expenditures from that

finite estate were made after he secured from his mother a power of attorney to act on her

behalf. And, as mentioned above, little to no evidence appears of record illustrating that

repayment will be forthcoming in the near future. This is of import since under the power

of attorney, his debts will be forgiven upon the death of his mother.

       So what we have here is evidence from which a factfinder could reasonably

conclude that though Olivares has the ability to earn wages and care for himself, he opted

to live off his potentially incapacitated mother and expend her finite estate for his own

benefit. More importantly, much of this self-dealing occurred after he became her fiduciary

via a power of attorney. As her fiduciary, he was obligated to place her interests above his

own. Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 439 (Tex.

App.–Houston [14th Dist.] 2000, pet. denied); accord, National Plan Adm’rs, Inc. v. Nat’l

Health Ins. Co., 235 S.W.3d 695, 700 (Tex. 2007) (stating that the attorney-in-fact is an

agent and subject to a duty to act solely for the benefit of the principal in all matters

connected with the agency). A fiduciary, like Olivares, is also obligated to pursue a course

of good faith, fair dealing, honesty, and strict accountability. Avary v. Bank of America,

N.A., 72 S.W.3d 779, 791 (Tex. App.–Dallas 2002, pet. denied). Given the evidence of his

self-dealing, we cannot hold that the trial court erred in determining that Olivares had an



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interest sufficiently adverse to his mother to bar him from participating in her guardianship

proceeding.2

            Temporary Injunction

        Next, Olivares contends that the trial court erred in granting a temporary restraining

order and a temporary injunction enjoining him from using the power of attorney or

exercising any dominion or control over her property when there was no evidence of

irreparable harm to her estate. We overrule the issues.

        First, a temporary restraining order is non-appealable. In re Office of the Attorney

General, 257 S.W.3d 695, 698 (Tex. 2008). Thus, we cannot hear complaints regarding

its issuance.

        Second, we find no record of a written order for injunction being signed by the court.

Moreover, both parties agree that one was not. Instead, the trial court simply stated that

the motion seeking injunctive relief was “granted.” See Ex parte Barnes, 581 S.W.2d 812,

814 (Tex. Civ. App.–Fort Worth 1979, no writ) (stating that while an oral order for

temporary injunction is effective, it must be as clear and specific as a written order). Yet,

the specific terms of the decree, the reasons for its issuance, the acts to be enjoined, and

the date of the final trial went unmentioned in the oral pronouncement, contrary to Texas

Rule of Civil Procedure 683. TEX . R. CIV. P. 683. And, since they were, the purported

temporary injunction was and is void. Qwest Communications Corp. v. AT&T Corp., 24

S.W.3d 334, 337 (Tex. 2000).


        2
          To the extent that Olivares claim s on appeal that he was entitled to 45 days notice of the hearing
on the m otion in lim ine, we do not find in the record where he raised that m atter below. Accordingly, the issue
was waived. T EX . R. A PP . P. 33.1(a)(1) (stating that to preserve error, one m ust show that the com plaint was
m ade to the trial court by a tim ely request, objection, or m otion).

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       Order to Pay Costs and Security

       Olivares next complains of the trial court’s order directing him to deposit into the

court’s registry the sum of $8,000 to secure the payment of the court costs and expenses

related to the guardianship proceedings. He was ordered to do this without encumbering

his mother’s estate. We dismiss this issue for the want of jurisdiction.

       The order in question was sought and entered pursuant to the authority of §622(b)

of the Probate Code.       Section 622(b) provides that “[a] person interested in the

guardianship or in the welfare of the ward, or an officer of the court, at any time before the

trial of an application, complaint, or opposition in relation to a guardianship matter, may

obtain from the court, on written motion, an order requiring the person who filed the

application, complaint, or opposition to give security for the probable costs of the

proceeding.” TEX . PROB. CODE ANN . § 622(b) (Vernon 2003). Given its use of the term

“probable,” the legislature apparently contemplated that the statute would serve to assure

payment of costs to be incurred as the suit proceeds to ultimate disposition. And, by

requiring one to pay costs that could be incurred while the guardianship action proceeds,

it can hardly be said that the directive disposes of the suit or results in the adjudication or

resolution of any substantive right or cause of action. Consequently, the order in question

is interlocutory and outside of our jurisdiction. Bozeman v. Kornblit, 232 S.W.3d 261, 263

(Tex. App.–Houston [1st Dist.] 2007, no pet.) (stating that an order that merely “‘sets the

stage’” for further resolution is interlocutory and non-appealable); accord, Brittingham-Sada

de Ayala v. Mackie, 193 S.W.3d 575, 579 (Tex. 2006) (stating that the order there involved




                                              5
was interlocutory because it did not end a phase of the proceedings but rather “set[] the

stage for the resolution of all proceedings”).

       Laches

       Finally, Olivares argues that the doctrine of laches prohibited the trial court from

considering and ruling on the motion in limine, application for temporary injunction, and

application for costs and security because they were filed 1.5 years after he initiated the

guardianship. We overrule the issue.

       Laches is an equitable remedy that prevents a plaintiff from asserting a claim due

to the lapse of time. Brewer v. Nationsbank of Texas, N.A., 28 S.W.3d 801, 804 (Tex.

App.–Corpus Christi 2000, no pet.). It is generally not available in a suit to enforce a

statutory right. Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638

(Tex. App.–Houston [1st Dist.] 2003, pet. denied). Moreover, to prevail on it, one must

show that 1) his opponent unreasonably delayed in asserting legal or equitable rights, and

2) the delay caused him to, in good faith, change his position. Caldwell v. Barnes, 975

S.W.2d 535, 538 (Tex. 1998).

       Assuming arguendo that laches is applicable to guardianship proceedings and that

the 1.5 year delay mentioned by Olivares was unreasonable, Olivares did not illustrate that

the delay caused him to change his position to his detriment. Without such a showing, he

cannot prevail. See Trevino v. Trevino, 64 S.W.3d 166, 173 (Tex. App.–San Antonio 2001,

no pet.).




                                             6
      Accordingly, we reverse the oral temporary injunction, dismiss the complaint

regarding issuance of the temporary restraining order and the order directing him to pay

costs, and affirm the remaining orders of the trial court which were at issue before us.



                                         Brian Quinn
                                         Chief Justice




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