                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00362-CV

                 IN RE GUARDIANSHIP OF Terry L. GILMER, Proposed Ward

                        From the County Court at Law, Kendall County, Texas
                                    Trial Court No. 13-070-PR
                             Honorable Bill R. Palmer, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: June 10, 2015

REVERSED AND REMANDED

           Daniel Gilmer and Sharlene Gilmer Anderson filed an application for the appointment of

a guardian of the person and estate of their mother, Terry L. Gilmer. The trial court appointed an

attorney ad litem to represent Terry in the proceeding, and the attorney ad litem filed a motion in

limine challenging Daniel and Sharlene’s standing on the basis that they have an interest adverse

to Terry. The trial court granted the motion and dismissed Daniel and Sharlene’s application. On

appeal, Daniel and Sharlene contend the trial court erred by: (1) taking judicial notice of the court’s

records in another court proceeding; and (2) concluding they lack standing because they have an

interest adverse to Terry. We reverse the trial court’s order and remand the cause for further

proceedings.
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                                   PROCEDURAL BACKGROUND

A.     Application for the Appointment of a Guardian

       Daniel and Sharlene filed a verified application for the appointment of a guardian for the

person and estate of Terry in May of 2013. At that time, Terry was 63 years old, and she and her

husband of forty-three years, Michael, were involved in divorce proceedings.

       The verified application alleged Terry did not have the capacity to make proper decisions

concerning her living arrangements and her medical treatment. The application referred to specific

occurrences since June of 2012 to support the allegations, including the following:

               1.     Terry has hoarding tendencies and lacks the ability to provide for
       her own hygienic care. For example, she filled the bathroom of her home with used
       adult diapers.

               2.      On July 9, 2012, Terry moved to an assisted living center and was
       classified as a level 2 resident on a scale of 1-3, with 3 being the highest level of
       care. On July 21, 2012, Daniel received a phone call from the assisted living center
       reporting that Terry was inconsolable but would not commit suicide due to her
       religious beliefs.

               3.     On August 15, 2012, Terry voluntarily checked herself into
       University Hospital for a psychological evaluation but was determined not to
       exhibit an imminent threat to herself or others. The assisted living facility allowed
       Terry to return subject to her undergoing a psychiatric evaluation at Laurel Ridge,
       a psychiatric hospital, the following week.

               4.     On August 17, 2012, Laurel Ridge evaluated Terry and did not find
       she exhibited an imminent threat to herself and others, but the assisted living facility
       only allowed Terry to return based on her agreement to attend continuing outpatient
       treatment at Laurel Ridge.

              5.      On August 23, 2012, Terry disappeared after her outpatient
       treatment session. The family located Terry using credit card information and
       found her at a hotel which reported Terry had a large diarrhea accident in the
       breakfast area, and the person who accompanied her to the hotel had left. Terry
       was incoherent when Daniel spoke with her on the phone, and Daniel asked the
       hotel employee to call EMS. Terry was transported to Baptist Hospital, and her
       primary care physician sent paperwork to have Terry admitted to Laurel Ridge.
       The assisted living facility would not allow Terry to return without proper
       psychological and medical treatment.


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       6.       On August 26, 2012, a friend went to visit Terry at Baptist Hospital
and found her walking around naked in her room crying. On August 27, 2012,
Sharlene received a phone call that Terry was refusing all services, and Sharlene
requested they coordinate with Terry’s primary care physician and Laurel Ridge.
On August 31, 2012, Terry was moved to the behavioral health unit of another
hospital after which she began communicating with family and friends. Terry told
Sharlene she needed help.

        7.      On September 4, 2012, Terry asked Daniel for blank checks when
he visited her at the hospital and was angry when he refused to provide them to her.
Terry’s purse had been lost, and she did not have her identification card or credit
card.

        8.      On September 6, 2012, Terry’s sister, Linda, arrived at the hospital
and took over Terry’s care. On September 7, 2012, Terry left the hospital with
Linda, and the hospital called the police because Terry still had a peripherally
inserted central catheter (PICC) line in her body. That same day, Sharlene received
a phone call that an employee of Adult Protective Services went to the hospital to
investigate a claim of abuse Terry made against Sharlene, but Terry had left the
hospital. Terry’s brother, Steven Meagher, reported that he spoke with Linda who
informed him Linda and Terry were removing the SIM card from their cell phone
so they could not be tracked, and they would have the PICC line removed at a clinic.

        9.     On September 12, 2012, Michael filed a missing persons report. The
police located Terry and reported she was in good health. The family subsequently
discovered Terry was with Linda in Arizona. On September 28, 2012, Terry
removed all of the funds from one of her and Michael’s joint bank accounts.

        10.    On October 2, 2012, Michael filed for divorce. On October 10,
2012, Terry was served with citation. On October 15, 2012, Terry filed a police
report claiming Michael, Daniel, Sharlene and the assisted living center poisoned
her.

       11.    On December 11, 2012, Terry refused to enter the courtroom during
a hearing on interim spousal support. When Daniel tried to hug Terry, Terry
accused him of trying to murder her.

        12.      On January 8, 2013, Michael was informed that Terry had filed
insurance claims with their insurance company relating to a stolen Dodge Caravan
and a burglary of their home where Michael was still living. Terry also filed a
police report regarding the burglary. Michael informed the insurance company and
the sheriff that Terry’s report was false. Terry also changed the contact information
at the bank where Terry and Michael had their checking and savings accounts to
Linda’s phone number, email, and address.

       13.     On April 17, 2013, Terry filed a lis pendens against Daniel’s home,
claiming it was purchased with community property funds. Terry’s attorney in the
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        divorce proceeding sent a letter to Michael’s attorney stating Terry was very ill
        from renal cysts, which were to be tested for malignancy, and collapsed vertebrae
        in her neck. The letter stated Terry was taking pain medication and would not be
        able to attend a scheduled deposition. Terry’s attorney included a letter from
        Terry’s doctor stating he was in the process of scheduling Terry for cervical spinal
        fusion surgery.

        In addition to alleging Terry did not have the capacity to make proper decisions regarding

her medical treatment and living arrangements, the application also alleged Terry was unable to

handle her own financial affairs. The application stated Terry was a beneficiary of a trust created

by her mother-in-law called the Nana Seeley Gilmer Trust (“Trust”), and the value of the property

Terry was entitled to receive from the Trust had an approximate value of $1,000,000. 1 The

application further stated Terry had filed a 2012 income tax return stating she was single and

earned $57,000 in income.

        In the application, neither Daniel nor Sharlene requested to be appointed as guardian.

Instead, they requested the appointment of a qualified and suitable individual or institution as

guardian. After the application was filed, the trial court immediately appointed an attorney ad

litem, who filed an answer generally denying the allegations.

B.      Motion to Undergo an Independent Mental Examination

        In July of 2013, Daniel and Sharlene filed a motion for Terry to undergo an independent

mental examination. The trial court held a hearing and verbally granted the motion on October

21, 2013; 2 however, the trial court did not sign the written order until February 6, 2014. The

written order required a “supplemental” forensic medical examination to be completed by March

6, 2014. The use of the term “supplemental” is an apparent reference to a prior examination Terry




1
  The Trust terminated when Terry’s mother-in-law passed away on July 21, 2012; however, no distributions from the
Trust have been made.
2
  No reporter’s record from this hearing is included in the appellate record.

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underwent in connection with the divorce proceeding. 3 The report produced as a result of that

examination stated the doctor had not reviewed “any substantive collection of medical records”

but relied on Terry’s self-reporting. Even with those limitations, the report concluded Terry will

“need the assistance of a neutral party to help manage her estate in her best interests.”

        On February 27, 2014, Terry’s attorney ad litem filed a motion in limine challenging Daniel

and Sharlene’s standing. The motion quotes excerpts from emails and a recorded telephone

conversation and asserts Sharlene is antagonistic toward Terry and both Daniel and Sharlene seek

to preserve the Trust’s funds for their own benefit. The motion asserts Daniel and Sharlene have

a financial interest in Terry’s assets that is adverse to Terry.

C.      Evidentiary Hearing before the Trial Court

        The trial court held an evidentiary hearing on the motion in limine on April 1, 2014. Daniel,

Sharlene, and Terry’s brother Steven testified at the hearing. In addition, several emails and the

recorded phone conversation referenced in the motion in limine were introduced into evidence.

As will be explained later in this opinion, this court must conduct a de novo review of the trial

court’s ruling. For this reason, the evidence presented at the hearing is set forth in great detail.

        1.       Exchanges between the Parties

                 a)       January 8, 2013 Daniel Email to Steven

        In January of 2013, Daniel sent Steven an email informing him about the changes Linda

and her mother had made to the joint bank accounts owned by his parents. Daniel attached to the

email the notice his father had received from the bank about the changes including the change to

Linda’s email address. Daniel also informed Steven about the reported burglary, and that he had

received a phone call from the police because his mother reported he had stolen things from his


3
  The trial judge presiding over the guardianship proceeding is the same trial judge who ordered the examination in
the divorce proceeding and to whom the doctor addressed his report.

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parent’s house. Daniel attached the claim overview the insurance company sent his father. Daniel

stated he was to the point of considering legal action against his mother and Linda because “there

is only so much that I can be understanding before I need to protect myself and people I love.”

Daniel believed his father had held his mother in check for years but also believed his mother

would continue down a path of hate since she left his father.

               b)      March 14, 2013 Telephone Conversation between Daniel and Steven

       In a recorded telephone conversation from March 14, 2013, Daniel told Steven even if his

parents get divorced, Linda needs to go home because she was destroying their family. Daniel

told Steven that his father was horrified by what was happening. Daniel also was horrified that his

mother was willing to trade her children and grandchildren for Linda, who his mother had called

crazy her entire life. Daniel wondered what influence Linda had over his mother. Daniel stated

his mother needed help, and he had moved from Utah to Texas to help her. Daniel informed Steven

his mother had an addiction to pain medication a few years earlier and stressed she needed to see

doctors and get situated with her medication. Daniel was calling Steven to let him know what to

expect because they would be fighting back really soon. They were trying to carry his dad through

the situation. In an effort to figure “this thing out,” Daniel informed Steven that his dad was taking

the lead on the divorce, and Daniel and Sharlene were taking the lead on the “‘undue influence’

against Linda.” Daniel stressed the Trust funds should not be going to the Meagher family. When

Steven interjected a question as to whether the assets would be going to Terry, Daniel asserted

everything that goes to his mother will go to Linda because Linda had “full medical and power of

attorney” authority and was signing all of his mother’s checks. Daniel stated Linda needed to go

home so he could have direct communication with his mother so they “can start figuring this out.

We cannot figure this out because we are being blocked left and right because of Linda.” Daniel

told Steven about his mother accusing his father of poisoning her with radiation. Daniel was
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“scared” for his mother and could not sit back any longer. Daniel stressed his plan was to proceed

with an undue influence claim against Linda which had nothing to do with his parent’s divorce.

In response to Steven’s question about what would happen to Terry if Linda left, Daniel stated he

had doctors lined up for his mother, including nutritionists and physical therapists. Daniel

expressed concern that Linda would receive all of his paternal grandmother’s “stuff” including any

family heirlooms his mother would receive. Daniel expressed his desire to meet with his mother

and find out if she actually believed her accusations. Daniel stressed they needed to “move against

Linda, to basically help my Mother. And if my Mother doesn’t want that, that’s what we need to

know.”

                c)      March 14, 2013 Daniel Email to Terry’s Attorney

         On the same day as this phone conversation, Daniel sent an email to Terry’s attorney in the

divorce proceeding, stating he did not believe his mother was in control of her actions but was

being influenced by Linda. Daniel stated he was unable to have direct contact with his mother and

was sad and fearful of the situation because he was unable to talk to his mother without Linda

monitoring the communication. Daniel asked the attorney to tell his mother that he was concerned

about her well-being and was always willing to help her in any way he could. The attorney

responded that she would give Daniel’s message to Terry.

                d)      March 26, 2013 Daniel Email to Terry’s Attorney

         Daniel sent a second email to Terry’s attorney on March 26, 2013, noting talks between

his parents had “broken down.” Daniel asked the attorney to tell his mother that he wanted to talk

to her because her family and friends were “all worried about her situation and [their] lack of

knowledge of what [was] going on in her life.” Daniel expressed concern that Linda was

controlling his mother and wanted his mother to know he would support her. Daniel stated, “I am,



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and will always be her only son and it pains me what has happened and is still happening with my

Mother.”

               e)      March 27, 2013 Daniel Email to Terry’s Attorney

       On March 27, 2013, Daniel sent a third email to Terry’s attorney, thanking her for her

efforts and sharing the content of a text message he received from his mother. The message stated

for Daniel and Sharlene to stop the untrue emails to her attorney. The message stated Daniel and

Sharlene were no longer part of her life, asserting, “How many ways will it take for you to realize

you have been disinherited and have no power over me any more [sic].” In his email to the

attorney, Daniel made a formal request for a meeting with his mother, offering to bring a sheriff,

her brother, and any of her hundred family friends with him; however, Daniel emphasized Linda

was not invited to the meeting. Daniel expressed four reasons for the meeting: (1) to know his

mother is the one disinheriting her children and grandchildren; (2) to understand what he had done

to deserve “this” after moving his family to Texas to help her; (3) to ask her the reasons she is

doing these and other actions against our family and friends; and (4) to tell him in person that she

wants him to stop being her only son.

               f)      March 27, 2013 Daniel Email to Steven

       Daniel also sent a follow-up email to Steven sharing the content of the text message from

his mother. Daniel stated Linda is an evil person and needed to leave his family alone. Daniel

stated he loved his mother and the situation was getting out of control. Daniel offered to buy

Steven a plane ticket to Texas to come and help “fix this.” Daniel refused to believe his mother

had sent the text message, stating, “she would never be this low to me and my family.”

               g)      March 27, 2013 Sharlene Email to Steven

       Sharlene also sent an email directed to Steven in response to her mother’s text message,

stating she no longer desired to have her mother back in her life and describing Linda and her
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mother as “the most evil, greedy, manipulative people I’ve ever dealt with.” Sharlene expressed

that Linda and her mother were creating a world of lies and deceit and “are laying in the filth they

created and chose for themselves.” Sharlene expressed anger that Daniel was getting rebukes and

threats for his effort to reach out to their mother. Sharlene stated Linda was using Terry for her

money, and Terry was using Linda for “validation of her own selfish desires.”

               h)      March 30, 2013 Terry’s Attorney Email to Daniel

        On March 30, 2013, Terry’s attorney emailed Daniel informing him she forwarded his

email requesting a meeting to Terry, and Terry asked the attorney to respond. The attorney stated

Terry was safe and was addressing her medical needs. Although Terry loved Daniel and Sharlene,

she did not want any further contact until the divorce was finalized. Terry was upset that they

were writing her off as mentally ill and willing to institutionalize her instead of recognizing she

had medical issues. Terry voluntarily left the hospital with Linda because she was informed she

would be “going to a lock down unit in a nursing facility, upon her release.” Terry believed the

motivation was money.

               i)      Daniel Response to Terry’s Attorney’s Email of March 30, 2013

        Daniel responded to the attorney’s email stating the problem was a lack of communication.

Daniel wanted the opportunity to talk to his mother, to answer her questions, and to obtain her

answers to his questions.     With regard to the money, Daniel stated he loved his paternal

grandmother, and her estate was created for her children, grandchildren, and great grandchildren.

Daniel stressed, “Its [sic] not about money its [sic] about family priorities.” Daniel stated he

moved his family to Texas “to help figure this out with my mother,” and that is why he wanted to

talk to her.




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       2.      Steven Testimony

       In addition to identifying several of the foregoing exhibits at the hearing, Steven testified

he first started to hear about the guardianship matter in 2012, when he spoke with Terry by

telephone and she told him a guardianship was being pursued. When questioned about his reason

for recording the telephone conversation with Daniel, Steven stated he felt the need to protect his

family from bodily harm given the reports of his sisters being poisoned. Although he had not been

threatened, his sisters were planning to visit him, and Steven was concerned his family would be

in danger because his sisters had been poisoned. Steven was willing to serve as Terry’s guardian

if the trial court decided to appoint a guardian and had contacted a lawyer to learn his

responsibilities in that regard. Based on the emails he received, Steven testified he believed Daniel

and Sharlene were making a claim against Terry’s assets.

       3.      Daniel Testimony

       Daniel testified the guardianship application was filed because they were concerned for

their mother’s safety. Daniel testified the concern began when Terry left Michael in June of 2012.

Based on this concern, Daniel moved his family from Utah, where he had lived for approximately

fifteen years, to Texas. Daniel testified about the numerous police reports his mother had filed,

and about the lis pendens filed against his home even though he paid for his own house. Daniel

was in fear for his mother because her reality was based on what Linda was telling her. Daniel did

not have any claims against his mother’s property and testified he was not a beneficiary of the

Trust. Daniel was unaware Steven had recorded their phone call and had reached out to him in an

attempt to obtain help from his mother’s side of the family, the Meaghers.                  Daniel’s

communication with Steven was “one directional” because Steven kept stating he was too far away

to help and was not financially able to help if Linda and Terry wanted to move to Washington.

Daniel applied for the guardianship because he was in fear for his mother and wanted to make sure
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she was in a good medical situation. A voicemail Daniel received from his mother in August of

2012 pleading for his help was played for the trial court. Daniel testified he received the voicemail

a few days before an incident at a hotel where his mother was found dehydrated with diarrhea.

       Daniel did not want to be appointed as guardian but wanted a competent third party to be

appointed as guardian to handle his mother’s finances. Daniel stated he was not a doctor and

wanted competent people to watch over his mother. With regard to the statements he made in the

emails about the Trust, Daniel explained he believed his paternal grandmother wanted her money

to go to the Gilmer side of the family, which included his mother, not his mother’s side of the

family, the Meaghers. Daniel explained the Meaghers disliked the Gilmers because of their

religion, and he did not know any of the Meaghers. When his maternal grandmother died, food

providers discovered her dead in her home in Arizona, and Daniel testified his mother was

currently staying in a tent outside that home.

       4.      Sharlene Testimony

       Sharlene testified she wrote the email calling her mother evil when she was really angry at

all of the accusations her mother had made against her father and brother. Sharlene testified her

mother needed a guardian for her estate because Linda was taking over and making decisions that

were not in her mother’s best interest, including incurring debt in her mother’s name. Sharlene

was concerned Linda would have access to the Trust assets her mother received because their bank

accounts were commingled.       Sharlene described her mother’s history with drug abuse and

addiction and stated her mother has had “deep medical issues for at least 20 years.” Sharlene stated

her mother was a hoarder and would fill the bathrooms in their home with hundreds and hundreds

of water bottles. When Sharlene last visited her mother in June of 2012, before her mother left her

father, her mother had filled bathrooms full of her used adult diapers.



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        Like her brother, Sharlene also did not want to be appointed as guardian but wanted a bank

to be appointed to manage her mother’s assets. In response to whether she favored her father over

her mother in the divorce action, Sharlene stated she was not involved in the divorce action.

Sharlene stated she did not have any beneficial interest in any of her mother’s property or in any

of her mother’s Trust distributions. Sharlene wanted her mother to be in a safe place where she

could get healthy. Sharlene was grateful her mother would receive the Trust money because her

mother’s medical care would be expensive, and the Trust would give her the resources to pay for

it. Sharlene wanted a team of medical professionals to decide the best place for her mother to live,

noting the assisted living facility had been unable to care for her.

        At the conclusion of the hearing, the trial court announced its finding that Daniel and

Sharlene had an interest adverse to Terry and dismissed their application. Daniel and Sharlene

timely appealed.

                                              JUDICIAL NOTICE

        Daniel and Sharlene assert the trial court erred in taking judicial notice of the records from

the divorce proceeding pending between their parents. Specifically, Daniel and Sharlene contend

the trial court could not take judicial notice of the records without giving them prior notice of its

intent, and they did not discover the trial court took judicial notice of the records until they received

the trial court’s findings of fact and conclusions of law which were signed approximately one and

a half months after the hearing on the motion in limine. 4

        A trial court may take judicial notice sua sponte; however, if the court takes judicial notice

before notifying a party, the party, on request, is still entitled to be heard. TEX. R. EVID. 201(c)(1),

(e); In re C.L., 304 S.W.3d 512, 515 (Tex. App.—Waco 2009, no pet.). In this case, Daniel and


4
  The trial court held the hearing on April 1, 2014, and signed the order granting the motion on April 29, 2014. The
trial court signed the findings of fact and conclusions of law on June 18, 2014.

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Sharlene were not notified before the trial court took judicial notice and filed an objection to the

use of judicial notice approximately one week after the trial court signed the findings of fact and

conclusions of law.

       In its findings of fact and conclusions of law, the trial court took judicial notice that Daniel

filed a motion in the pending divorce proceeding to expunge a lis pendens Terry filed. Even if we

assume the trial court erred in taking judicial notice of this filing, Daniel and Sharlene have not

shown how they were harmed by the trial court’s action. See TEX. R. APP. P. 44.1. Both Daniel

and Sharlene testified Terry filed the lis pendens which was expunged after Daniel filed his motion.

Accordingly, the trial court’s judicial notice was cumulative of evidence that was properly

admitted, making any error in the taking of judicial notice harmless. See Nissan Motor Co. Ltd. v.

Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (“Clearly, erroneous admission is harmless if it is

merely cumulative.”).

                            STANDARD FOR DETERMINING STANDING
                         V. STANDARD TO QUALIFY FOR APPOINTMENT

       In its conclusions of law, the trial court refers to section 1104.354 of the Texas Estates

Code, which contains the standard for determining whether a person is qualified to be appointed

as a guardian. For example, under section 1104.354(1) of the Estates Code, a person may not be

appointed guardian if the person’s parent is a party to a lawsuit concerning or affecting the welfare

of the proposed ward unless the trial court makes requisite additional findings. TEX. ESTATES

CODE ANN. § 1104.354(1) (West 2014). In this case, the trial court cited section 1104.354(1) as

support for its conclusion that Daniel and Sharlene did not have standing because their father,

Michael, was a party to a pending divorce proceeding that concerned or affected Terry’s welfare.




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A.       Standard of Review

         A trial court’s conclusions of law present a legal question that we review de novo. BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An erroneous conclusion of

law does not require reversal if the trial court rendered the proper judgment. Id.

B.       Analysis

         The standard for determining a person’s standing to file a guardianship application under

section 1055.001(b)(1) is distinct from the standard for determining whether a person is

disqualified from being appointed as guardian under section 1104.354. Compare TEX. ESTATES

CODE ANN. § 1055.001(b)(1) (West 2014) 5 with TEX. ESTATES CODE ANN. § 1104.354 (West

2014) 6. The standards are different because standing under section 1055.001(b)(1) is a threshold

requirement that must be met to simply proceed with an application which is unlike the merits-

based determination of which person should be appointed as guardian. A good example of these

differences arises in regard to the issue of debt. A person who is indebted to the proposed ward is

disqualified from serving as guardian unless the debt is paid before the appointment; however,

being indebted to the proposed ward does not automatically deprive a person of standing to apply

for a guardianship. In re Guardianship of Miller, 299 S.W.3d 179, 188–89 (Tex. App.—Dallas

2009, no pet.); Betts v. Brown, No. 14-99-00619-CV, 2001 WL 40337, at *4 n.2 (Tex. App.—

Houston [14th Dist.] Jan. 18, 2001, no pet.) (not designated for publication). Although there may

be instances in which evidence supporting disqualification under section 1104.354 also would

support a finding of an adverse interest under section 1055.001(b)(1), we disagree that a person



5
  Section 1055.001(b)(1) states: “A person who has an interest that is adverse to a proposed ward or incapacitated
person may not file an application to create a guardianship for the proposed ward or incapacitated person.” Id.
6
  Section 1104.354 prevents a person from being appointed guardian if the person: (1) “is a party or is a person whose
parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward, unless the court” makes two
specific, requisite findings; (2) “is indebted to the proposed ward, unless the person pays the debt before appointment;”
or (3) “asserts a claim adverse to the proposed ward or the proposed ward’s property.” Id.

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whose parents are parties to a divorce proceeding will always lack standing under section

1055.001(b)(1) to apply for a guardianship to be created for one of his or her parents. Therefore,

to the extent the trial court’s conclusion that Daniel and Sharlene lack standing is based on the

pendency of the divorce proceeding between their parents, we hold the trial court’s conclusion is

erroneous. As previously noted, however, the trial court’s erroneous conclusion will not require

reversal if the trial court’s conclusion that Daniel and Sharlene lack standing is supported on a

proper basis.

                                             STANDING

       The trial court’s order states Daniel and Sharlene lack standing under section

1055.001(b)(1) of the Texas Estates Code because they have an interest that is adverse to Terry.

Daniel and Sharlene assert the evidence is insufficient to support the trial court’s findings. Even

if the evidence is sufficient to support the findings, Daniel and Sharlene further assert the findings

do not support the trial court’s conclusion that they have an adverse interest under section

1055.001(b)(1).

A.     Standard of Review

       “A person who has an interest adverse to a proposed ward or incapacitated person may not

file an application to create a guardianship for the proposed ward or incapacitated person.” TEX.

ESTATES CODE ANN. § 1055.001(b)(1) (West 2014). The trial court must “determine by motion in

limine the standing of a person who has an interest that is adverse to a proposed ward or

incapacitated person.” Id. at § 1055.001(c). Whether a person has standing to file an application

to create a guardianship is a question of law which we review de novo. In re Guardianship of

Benavides, No. 04-13-00197-CV, 2014 WL 667525, at *1 (Tex. App.—San Antonio Feb. 19,

2014, pet. denied) (mem. op.); In re Guardianship of Miller, 299 S.W.3d at 188.



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B.     Definition of Adverse Interest

       As previously noted, a person lacks standing to file an application to create a guardianship

if the person has an interest that is adverse to the proposed ward. TEX. ESTATES CODE ANN.

§ 1055.001(b). The Estates Code does not define what constitutes an interest adverse to the

proposed ward. In re Guardianship of Miller, 299 S.W.3d at 189. Therefore, we must look to

appellate court decisions addressing standing challenges to formulate an understanding of how the

term has been applied in different contexts.

       In Allison v. Walvoord, 819 S.W.2d 624, 625 (Tex. App.—El Paso 1991, orig. proceeding

[leave denied]), the wife of a proposed ward filed an application for the appointment of a limited

guardian for her husband. The plaintiffs in two pending lawsuits against the proposed ward sought

to contest the application, but the wife challenged the plaintiffs’ standing. Id. The trial court found

the plaintiffs had standing, and the wife filed a mandamus petition seeking to have the trial court’s

order vacated. Id.

       The El Paso court held the plaintiffs were not interested in the welfare of the proposed

ward. Id. at 626. The court noted the plaintiffs’ interest was in obtaining a substantial judgment

against the proposed ward “which could only adversely affect his welfare.” Id. Because the

plaintiffs were not interested in protecting the proposed ward’s well-being, the El Paso court held

the plaintiffs lacked standing. Id. at 627.

       In Betts v. Brown, the Houston court generally defined an adverse interest as an interest

that does not promote the well-being of the ward or an interest that adversely affects the proposed

ward’s welfare. 2001 WL 40337, at *4. After stating this broad definition, the Houston court then

examined the trial court’s finding that an applicant, Bonnie Jackson Brown, lacked standing to file

an application for a guardianship because she had an adverse interest to the proposed ward based

on the manner in which she had handled the proposed ward’s bank account. Id. Specifically, the
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court noted Brown was unable to account for checks written to Cash by fully explaining the

expenditures or producing receipts. Id. The court also noted Brown paid her own legal fees from

the proposed ward’s bank account. Id. Noting that the trial court’s findings might disqualify

Brown from being appointed as guardian, the Houston court asserted it could not conclude

Brown’s interest “so adversely affected the well-being of the ward as to deny her standing.” Id.

Distinguishing Allison, the court noted,

       Unlike the contestants to the guardianship proceeding in Allison, whose sole
       interest in contesting the guardianship was against the well-being of the proposed
       ward, it cannot be said that Brown was not concerned with Jackson’s well-being.
       The record reflects that prior to the initiation of these guardianship proceedings,
       Brown in fact did care for Jackson. Jackson stayed with Brown, Brown took
       Jackson to her doctor’s appointments, and Brown actively sought out residential
       facilities that could care for Jackson. Brown’s interest did not rise to such a level
       as to be against the well-being of Jackson.

Id. Based on the foregoing, the Houston court held the trial court erred in finding that Brown

lacked standing. Id.

C.     Analysis

       In this case, the trial court based its conclusion that Daniel and Sharlene have an adverse

interest on findings that they supported their father in the divorce proceedings and wanted to “make

sure Terry Gilmer’s trust money remains with the Gilmer family.” Although there is some

evidence to support these findings, we must determine whether these findings establish that Daniel

and Sharlene had an interest that rose “to such a level as to be against [Terry’s] well-being.” Id.

       Although Daniel stated they were helping their father deal with the emotional trauma of

the divorce, the evidence also showed the actions Daniel had taken in his effort to support his

mother, including moving his family from Utah to Texas to help his mother. Daniel was concerned

that his mother’s reality was off, using Terry’s reporting that Michael was poisoning her with

uranium as an example. After describing his mother’s voicemail pleading for his help, Daniel


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testified that he feared for his mother’s health and safety. Daniel stated he wanted competent

people to watch over his mother’s health. Similarly, Sharlene testified she wanted her mother safe

and to understand her family loves her and is not trying to kill her. Sharlene explained they had

received reports that their mother had been falling and had renal failure. Sharlene testified she

wanted a team of competent medical professionals to determine a safe place for Terry to live.

       With regard to the Trust, Sharlene testified about her concern that Linda was manipulating

her mother. For example, Sharlene stated her mother’s name had been added to one of Linda’s

credit cards with $30,000 in debt. Sharlene explained Linda was on all of her mother’s bank

accounts, and any money her mother received would be deposited into these commingled accounts.

Although Daniel and Sharlene expressed concerns about the manner in which their mother might

spend the Trust money, neither Daniel nor Sharlene were trustees of the Trust or controlled the

Trust’s assets. In addition, neither Daniel nor Sharlene sought to be appointed as the guardian, but

wanted an independent third party appointed as guardian who would be able to develop the best

plan to manage their mother’s assets. Finally, as previously noted, Daniel and Sharlene were aware

of a doctor’s report opining that their mother needed the assistance of a neutral party to help

manage her estate.

       After reviewing the entire record and considering the issue of standing under our de novo

standard of review, we hold the trial court’s findings do not support its conclusion that Daniel and

Sharlene lack standing. Although the evidence showed that Daniel and Sharlene expressed an

interest in their father’s emotional well-being and in their mother’s ability to manage the assets

she would receive from the Trust, the evidence did not show that those interests were sufficient to

establish a lack of standing by rising “to such a level as to be against [Terry’s] well-being.” Id.;

see also In re Guardianship of Parker, 275 S.W.3d 623, 632 (Tex. App.—Amarillo 2008, no pet.)

(holding evidence that guardianship applicant’s son believed his mother was concerned about
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future inheritance from her mother’s (the proposed ward’s) trust was insufficient to support a

finding of adverse interest).

       The only other finding the trial court made to support its conclusion was that Daniel filed

a motion in the divorce proceeding to expunge the lis pendens Terry filed against his home. This

court has held that a person who is suing a proposed ward or incapacitated person has an interest

adverse to the proposed ward or incapacitated person. In re Guardianship of Benavides, 2014 WL

667525, at *1; In re Guardianship of Valdez, No. 04–07–00712–CV, 2008 WL 2332006, at *2

(Tex. App.—San Antonio June 4, 2008, pet. denied) (mem. op.). In this case, however, the

evidence established that the motion to expunge was granted, and Daniel no longer has any pending

claim against Terry. Therefore, unlike the cited cases, Daniel is not “suing” Terry because he is

not currently involved in litigation against her.

                                            CONCLUSION

       The trial court erred in concluding Daniel and Sharlene lacked standing to file an

application seeking the appointment of a third person as the guardian of the estate and person of

their mother. Therefore, we reverse the trial court’s order granting the motion in limine and

dismissing the application for the creation of a guardianship.

                                                    Patricia O. Alvarez, Justice




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