                              NUMBER 13-17-00591-CV
                              NUMBER 13-17-00593-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG


        IN THE GUARDIANSHIP OF LEON R. BERNSEN, SR., AN
              ALLEGED INCAPACITATED PERSON


                  On appeal from the County Court at Law No. 5
                           of Nueces County, Texas.


                            MEMORANDUM OPINION
               Before Justices Benavides, Hinojosa, and Valdez1
                   Memorandum Opinion by Justice Valdez

        Dianna Bernsen and Lynn Bernsen Allison filed competing applications requesting

appointment as Leon R. Bernsen’s guardian. Dianna and Lynn also filed competing

motions in limine challenging each other’s standing to commence or contest Bernsen’s



        1 Retired Thirteenth Court of Appeals Chief Justice Rogelio Valdez, assigned to this Court by the
Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003.
guardianship. The trial court granted both competing motions in limine and found that

Dianna and Lynn both lacked standing to participate in Bernsen’s guardianship. 2 In

appellate cause number 13-17-00593-CV, appellants Dianna and Bernsen (the proposed

ward in this case) 3 contend we should reverse the trial court’s judgment granting appellee

Lynn’s motion in limine because there was insufficient evidence to find Dianna lacked

standing. In appellate cause number 13-17-00591-CV, appellant Lynn contends we

should reverse the trial court’s judgment granting appellee Dianna’s motion in limine on

the basis that Dianna lacks standing. 4              In both causes, we affirm the trial court’s

judgments. 5

                         I.      FACTUAL AND PROCEDURAL BACKGROUND

A.      Bernsen Farms and The Bernsen Family Trust

        Bernsen is a ninety-four-year-old male who is the proposed ward in the

guardianship proceedings at the trial court.                 He owned a multimillion-dollar estate

comprised of cash, real property, commercial farmland, and partnership interests

including an entity known as Bernsen Farms, Ltd. (Bernsen Farms or Partnership). The




        2   See TEX. EST. CODE ANN. § 1055.001.
        3 On September 26, 2018, appellee Bernsen adopted Dianna’s brief and position on appeal in

appellate cause number 13-17-00593-CV.

        4   Appellee Bernsen filed a brief in appellate cause number 13-17-00591-CV, and he supports the
trial court’s judgment that Lynn lacks standing to commence or contest his guardianship proceeding.
        5 As this point is dispositive, we do not reach Dianna’s remaining issues. See TEX. R. APP. P. 47.1.;
In re Guardianship of Miller, 299 S.W.3d 179, 189 (Tex. App.—Dallas 2009, no pet.) (holding that the court
need not address the applicants’ remaining issues having sustained a dispositive issue); see also In re
Guardianship of Benavides, 04-13-00197-CV, 2014 WL 667525, at *2 (Tex. App.—San Antonio Feb. 19,
2014, pet. denied) (mem. op.) (holding appellant had no standing to challenge the trial court’s other orders
arising from the guardianship proceeding because appellant lacked standing to commence or contest a
guardianship proceeding).


                                                         2
Bernsen Family Trust funds Bernsen Farms. 6 Bernsen has two children: Leon Bernsen

Jr. and Dianna. Lynn, Lea, and Garrick Bernsen are Bernsen’s grandchildren, children

of Leon Jr. Virginia Means is Bernsen’s sister.

B.     Leon Jr. sues Bernsen

       On July 22, 2013, Leon Jr. sued his father in district court alleging fraud and breach

of fiduciary duty in Bernsen’s administration of his wife’s will (Anna Marie Bernsen) and

the Bernsen Family Trust (district court suit). 7                   He sought relief not to exceed

$30,000,000. Bernsen filed a counterclaim to the district court suit, seeking relief between

$200,000 to $1,000,000. 8 These claims are pending in district court.

       Lynn filed a petition in intervention on June 7, 2017 in the district court suit,

asserting she is a beneficiary of The Bernsen Family Trust, and, thus, has an interest in

the district court suit.         Lynn testified that she felt compelled to intervene in the

guardianship to protect Bernsen’s best interest as an intervenor.



       6   The Bernsen Family Trust is currently the subject of pending litigation in the 28th District Court.

       7   District Court cause no. 2013-DCV-3624-A is styled Leon Bernsen, Jr. v. Leon R. Bernsen.

       8   In the petition, Bernsen alleges the following (among other things):

                  1.      Leon Jr. leased real property from Bernsen in March 2008 and failed to pay the
                          rental fee for three years in the amount of $9,990. Additionally, Leon Jr. occupied
                          the property for an additional four-year period and failed to pay the rental fee in the
                          amount of $13,200.

                 2.       Leon Jr. rented equipment from Bernsen and owes $28,222.80. Furthermore,
                          Leon Jr. converted the equipment.

                 3.       Leon Jr. rented a storage barn from Bernsen for seventeen months and owes
                          $46,750.

                 4.       Leon Jr. harvested the various properties and failed to provide Bernsen with
                          proportionate shares.

       These claims remain pending in district court.


                                                           3
C.     Competing Applications for Guardianship

       Dianna filed her first amended application for appointment of permanent guardian

of Bernsen’s person and estate on November 25, 2015. She attached a letter dated

September 2015 from Dr. Jorge Mendizabal, a board-certified neurologist, declaring

Bernsen “totally without capacity” and “unable to provide food, clothing or shelter for

himself or herself, to care for [his] own physical health or to manage [his] own financial

affairs.” He diagnosed Bernsen with Alzheimer’s Dementia with progressive cognitive

decline.

       On January 19, 2016, Leon Jr. contested Dianna’s application and filed his own

application seeking to become Bernsen’s guardian while simultaneously suing Bernsen

in the district court suit.

       On June 22, 2016, Leon Jr.’s son Garrick also applied to become Bernsen’s

guardian. Dianna filed a motion in limine contesting Garrick’s application on the basis

that Garrick lacked standing because he held Leon Jr.’s power of attorney, which in turn

obligates Garrick to carry out Leon Jr.’s interests in the district court suit. The trial court

granted Dianna’s motion in limine and found that Garrick did not have standing to

commence Bernsen’s guardianship because he held an interest adverse to Bernsen.

Garrick did not appeal.       Thereafter, Virginia Means, Bernsen’s sister, applied to be

guardian, but she withdrew her application shortly after appearing in the guardianship

proceeding.

       Leon Jr. filed his fifth amended petition in the district court suit on November 3,

2016, and an amended application for guardianship on November 29, 2016.

       On February 03, 2017, Lynn filed an application for appointment of permanent



                                                  4
guardian of Bernsen’s person and estate. Leon Jr. died three days later.

D.     Pleadings in the Guardianship and District Court Suit

       On February 15, 2017, Dianna filed a motion in limine challenging Lynn’s standing

to commence or contest Bernsen’s guardianship. According to Dianna, Lynn: (1) holds

a pecuniary interest in the proceeds of Leon Jr.’s district court lawsuit; (2) takes hostile

action towards Bernsen for the sole purpose of advancing her own interest; and (3)

promotes Leon Jr.’s pecuniary interest in both the guardianship and the district court suit.

       Lynn similarly filed a competing motion in limine asserting Dianna is disqualified

from serving as guardian because she is indebted to Bernsen, unsuitable to serve, and,

in turn, lacked standing because she had an interest adverse to Bernsen. While Bernsen

was suffering from Alzheimer’s Dementia, Lynn claims Dianna took money and property

from Bernsen. She attached evidence to her motion demonstrating Dianna’s direct

conflicts of interest, which Lynn claims preclude Dianna from serving as guardian

because it would harm Bernsen and Dianna would owe fiduciary duties to multiple

persons, a trust, and a legal partnership. Lynn prayed for the trial court to determine that

Dianna lacks standing due to her debts, unsuitability, and disqualification.

E.     Evidentiary Hearing

       The trial court held a four-day evidentiary hearing to consider Lynn and Dianna’s

motions in limine and heard lengthy testimony. Numerous attorneys participated in the

hearing including Don Ford, Robert Anderson, and Kenneth Krohn (each representing

Dianna); Richard Crews (on behalf of Bernsen in the district court suit); Jeff Lehrman (on

behalf of the Partnership), and Doug Allison (on behalf of Lynn and Leon Jr. in the district

court suit and Lynn and Leon Jr. in the guardianship proceeding). Various exhibits were



                                                5
admitted into evidence, and several witnesses testified at the hearing and provided

relevant evidence regarding Dianna and Lynn’s lack of standing, including Dr. Nestor

Praderio, M.D., Bernsen’s brother Tommy Bernsen, Dianna, and Lynn. In addition,

several of Dianna’s e-mails were referenced to impeach Dianna’s testimony.

       1. Lynn’s Testimony

       Lynn testified that she did not see or interact much with Bernsen between 2012

and 2016 because of the ongoing dispute and pending litigation between Leon Jr. and

Bernsen. According to Lynn, Bernsen called her a few times because he could not find

his vehicle and wanted her to help him locate it at his house. Also, she went bird hunting

in 2013, and when she showed him pictures of the birds, Bernsen “did not remember

having a hunting place in Alice.” She went over to his house a couple of times during this

period, and she testified that each time he was really confused. According to Lynn, she

would get calls from people who were concerned that Bernsen was lost, and Lynn needed

to go get him. She last saw him at a family funeral in 2013 but claimed that “Dianna

moved him out quickly . . . she didn’t let him stay.” At the funeral, Bernsen had a notebook

with him and was taking down notes of who family members were.

       2. Dr. Praderio’s Testimony

       Dr. Praderio testified by video that he is a psychiatrist specializing in geriatrics

psychiatry. Bernsen appeared in his office for the first time on April 4, 2012. Dr. Praderio

then evaluated Bernsen on July 25, 2012 and October 2, 2012.              According to his

documents, Richard Leshin, Bernsen’s estate planning attorney, referred Bernsen to Dr.

Praderio. His notes also indicated Dianna wanted an answer as far as Bernsen’s capacity

to make decisions.



                                                6
       After reviewing Bernsen’s treating physician’s lab records and an MRI of

Bernsen’s brain, Dr. Praderio diagnosed him with a depressive disorder and a

neurocognitive dementia disorder—an Alzheimer’s type. As his treating physician, Dr.

Praderio discussed prescribing Bernsen with medication, but Dianna did not want any

medications administered. As part of his evaluation process, he referred Bernsen to Dr.

Amanda McBride, Ph.D., a clinical psychologist, for more testing. Dr. McBride performed

psychological testing (including but not limited to a clinical interview with Bernsen,

behavioral observations, the Kaufmann Brief Intelligence Test, the Motor-Free Visual

Perception Test, Cognistat, Dementia Rating Scale, Wisconsin Card Sort 64, and the

Color Trails Tests), and her reports were consistent with Dr. Praderio’s initial diagnosis.

       According to Dr. Praderio, Bernsen was at the end of the initial stage “almost

getting into the moderate stage of the illness.” It was his opinion that Bernsen was

incompetent to: handle his bank accounts; enter into contracts; incur obligations; enter

into formal legal documents of legal significance; pay, compromise, or defend legal claims

made against him; collect on debts on rentals, wages, or claims owed to him; consent to

governmental services; enroll in public or private residential care facilities; make

employment decisions; consent to disclosure of medical records; and make decisions

regarding insurance and other contracts for businesses. Dr. Praderio testified that given

Bernsen’s diagnosis of Dementia Alzheimer’s and his incompetency, he would be

susceptible to being coerced and was at risk for being unduly influenced with matters of

property and wealth given that his condition was progressive and deteriorating. In fact,

in just a four-month span, Bernsen had already lost about four points in his memory test,




                                                7
and “in six months, he had already deteriorate[d] remarkabl[ly]” and would continually get

worse.

         On November 29, 2012, Dianna called Dr. Praderio requesting Bernsen’s results.

Dr. Praderio informed her of Bernsen’s incompetency, all of the details of his evaluation,

and Dr. McBride’s evaluation addendum: “I found him not capable and I offered to

[Dianna] the finding and they disappeared . . . .” Dr. Praderio testified that he offered to

prepare a letter to proceed with guardianship, but “they did not show up for it.”

         3. Tommy Bernsen’s Testimony

         Tommy Bernsen, Bernsen’s brother, testified at the evidentiary hearing by

deposition taken on April 5, 2017. Tommy was handed a document that was purportedly

written by him and filed with the trial court on April 13, 2017—the same day that Dianna

filed the “Trustee of the Bernsen Family Trust.” Tommy testified that he did not know

Dianna had applied to be Bernsen’s guardian, yet the document he allegedly filed appears

to be a handwritten letter from him addressed to the court. The letter states that Bernsen

is not completely incapacitated and that Dianna had been taking care of him and his

business for several years.     Thus, Dianna should be appointed Bernsen’s guardian

because “she already does this job and is the best person to continue to do this

guardianship.” Tommy reiterated that he did not write that letter; only his signature at the

bottom of the document was in his handwriting, and he was perplexed regarding how it it

was obtained because he had never seen that letter before and certainly did not authorize

anyone to write that letter on his behalf.

         4. Dianna’s Testimony

            i)    Dianna’s Initial 2015 Deposition Testimony



                                                8
       In January 2015, Dianna asserted “My father has not given anybody anything as

a gift that has to do with farming . . . Everybody’s got to earn it,” yet in May of 2011, she

claims that Bernsen handed her a check for $150,000. “I do not know what it was for

except my dad wrote a check and he handed it to me and he said, I want you to have

this.” The memo on the check read “real estate consulting,” but she testified that she has

not performed real estate services for Bernsen. Thereafter, Bernsen issued a second

check for the same amount for accounting work, but again, Dianna did not know what it

was for. She insisted the checks were not gifts but income to “even out” what her brother

Leon Jr. was taking from Bernsen. Thus, Dianna received $300,000 from Bernsen in one

year—the most he had ever given her.

       Dianna testified that ever since the inception of Bernsen Farms in December of

2012 (one month after Dr. Praderio diagnosed Bernsen with Alzheimer’s Dementia), she

would review leases and bank statements for deposits made to Bernsen Farms. For the

years 2007 to 2011, however, she was not involved in this process. When asked how

she became a general partner of Bernsen Farms, she said, “because somebody had to

do it. I mean I was given an opportunity to be a part of it; and I said yes.” She insisted

that Bernsen still ran Bernsen Farms in 2013 and 2014 (despite his medical declinations)

and was “doing a great job”; she was merely a partner reviewing leases and bank

statements.

       On November 29, 2013, Dianna claimed that Bernsen deeded properties to her to

correct an error 9 when he realized those properties were not included in the formation of


      9 Two deeds were admitted into evidence: one dated December 18, 2012 and another dated

November 29, 2013. However, Dianna asserted that there was only one transaction, which occurred
November 29, 2013.


                                                  9
the partnership. “That’s the only time there’s ever been a gift to me,” though she does

not know all of what was conveyed to her in that gift. She purportedly did not know

thousands of acres were conveyed to her. In fact, Dianna claimed the 2015 deposition

was the first time she heard of such conveyance even though she signed all the relevant

documents. Contrary to that testimony, in an e-mail to Leshin dated April 30, 2012,

Dianna stated she reviewed the summary of the properties that would be conveyed to

her, and the total acreage was 5260.89 acres.

       As of January 23, 2015, Dianna stated she did not think Bernsen needed any care

or support insofar as judgments about his business or how to manage Bernsen Farms;

she did not think Bernsen needed help or assistance in managing The Bernsen Family

Trust; and she believed Bernsen had always been, and continues to be, “fully competent

to manage all of his affairs” despite Dr. Praderio’s diagnosis. When asked about her

involvement with the creation of the partnership in 2012, she stated: “I didn’t have

anything to do with that. It was my dad’s plan.” When asked if her father had been to a

doctor in the last five years, Dianna testified that she did not know although she physically

accompanied him to Dr. Praderio’s office. Similarly, she “did not know” if Bernsen had

any sort of diagnosis with regards to Alzheimer’s Dementia, contrary to Dr. Praderio’s

testimony. Yet on July 25, 2012, Dianna e-mailed attorney Leshin stating Bernsen saw

Dr. Praderio at 12 noon and was scheduled for a follow-up appointment with Dr. McBride

on Augusut 13 and another follow-up with Dr. Praderio in September. Dr. Praderio was

also the subject of numerous other e-mails from Dianna to attorney Leshin contrary to her

testimony that she was unaware whether he was seen by any treating physicians or was

diagnosed with any medical conditions.



                                                10
            ii)     Dianna’s 2017 Evidentiary Testimony

         At the evidentiary hearing in 2017, Dianna testified that there was no tax planning

done by Bernsen between 1997 and 2012. She continued to assert that she was not

involved in discussions with Bernsen or his attorney Leshin regarding the creation of a

partnership, and when she was presented with multiple e-mail exchanges in 2012

between her and attorney Leshin regarding the partnership, she could not recall any of

those.

         In one of those e-mails dated May 16, 2012, Dianna e-mailed attorney Leshin

stating, “I sent the documents regarding the partnership to Mr. Patel last week,” and

Leshin responds, “Dear Ms. Bernsen, I have looked through the limited partnership

documents and I feel that they pretty much cover the issues that Mr. Bernsen needs to

address.” Yet, according to Dianna, she was only referring to deed records and possibly

to powers of attorney, not to the partnership. In another e-mail to attorney Leshin dated

June 2012 and titled “Partnership,” Dianna wrote:

         I tried to explain to [Bernsen] that the partnership was a means to stave off
         any assaults that would result from [Leon Jr.] trying to have him declared
         incompetent. I left it at that . . . At this point, I need to back off and let him
         think about it.

         On July 24, 2012, Dianna wrote in another e-mail to attorney Leshin: “Richard,

Just an FYI. If you do talk to Dad anytime soon don’t mention the grandchildren. He told

me ‘I haven’t talked to them in so long I can’t remember their names.’” Similarly, on

August 20, 2012, Dianna continued:

         Mr. Thompson told me that he had called [Leon Jr.] before he called me.
         He told me on the phone that he was concerned that Mr. Bernsen was not
         getting the gist of what, he, Mr. T. was trying to explain to [Bernsen]. I don’t
         know how much of that he told [Leon Jr.] and he said that he thought it was
         his fiduciary duty to call someone other than Mr. Bernsen.

                                                    11
Dianna testified she did not think this e-mail in any way suggested that Bernsen lacked

understanding.

       On September 7, 2012, Dianna e-mailed attorney Leshin asking, “Maybe we

should get dad to sign the papers, the partnership, the will, and then if Dr. Praderio finds

him competent get him to sign updated ones . . . I am concerned because Dr. P. keeps

pushing this appointment back,” although Dianna had previously stated that she “never

saw any will” and was unaware Bernsen had been seen by a physician.

       On October 1, 2012, Dianna stated that she and Bernsen had a 1:30 appointment

tomorrow with Dr. Praderio, and she was “sitting here biting my nails over this because

we’re at the end of the year, my dad’s getting old . . . .” Dianna testified that she was

concerned with her inheritance: “So we’re looking at the end of the year here and we

wanted these partnership papers signed to protect not only the property . . . in his estate

but the inheritance of [Leon Jr.] and me and Lynn and Lee and Garrick . . . .”

       She accompanied Bernsen to Dr. Praderio’s appointment in October 2012 and

asserted that although numerous tests were conducted on Bernsen, she was not looking

for a capacity evaluation; she was only looking “for [Bernsen’s] ability to sign documents.”

Contrary to Dr. Praderio’s testimony, Dianna claims that Dr. Praderio never gave her that

evaluation, nor did Dr. Praderio ever offer her a guardianship letter. Further, Dianna

testified that on November 28, 2012, Dr. Praderio told Dianna, “The results of Dr.

McBride’s tests are on my desk and I have not looked at them.” She asked him when

they would be ready, and he said, “Oh, early December.” Dianna stated that is “pretty

much” all she remembers from her conversation with Dr. Praderio, but she believes that

Dr. Praderio must have “her dad mixed up with another patient” because his testimony is

                                                12
not “really accurate”—even though Dr. Praderio testified with Bernsen’s records and test

results in front of him.

       On December 10, 2012, Dianna’s e-mail sets forth, “I think we should sign the docs

and let them try to prove incompetence.” One week later, Dianna attempted to get

Bernsen to sign the partnership papers, updated will, and powers of attorney: “I’ve been

working on him all weekend. I will let you know as soon as I can so you can rebook the

time in the morning.” According to Dianna, Bernsen wanted to wait for Dr. Praderio to

finish his competence exam before signing the documents, but Dianna told Bernsen that

Dr. Praderio was very unresponsive. The very next day, however, Bernsen signed the

medical and statutory powers of attorney, appointed Dianna as his power of attorney, and

signed his last will and testament.

       Shortly after Bernsen signed the documents in question, on December 18, 2012,

Bernsen signed a deed, which gave Dianna one percent of all the property in Bernsen

Farms. Bernsen also created the limited partnership, which is pending in district court. 10

As a result, Dianna and Bernsen became general partners of Bernsen Farms, and if

Bernsen were ever to be declared incompetent, Dianna would now be in sole control of

the Farms.        On December 29, 2013, Bernsen signed another gift deed gifting more

acreage to Dianna.

F.     Trial Court Ruling




       10   The partnership agreement states:

                 If there is a judicial determination by a court of competent jurisdiction that a General
                 Partner is mentally incompetent to manage his person or property, then such
                 incompetent General Partner . . . shall automatically cease to be a general partner
                 of the Partnership at the time of such determination.


                                                           13
       At the end of the hearing, the trial court expressly provided that Dianna “lacks

standing in this matter and has an interest adverse” to Bernsen and that Lynn “lacks

standing in this matter as she has interests that are adverse to [Bernsen].” It further

ordered that neither Dianna or Lynn may file applications to create a guardianship for

Bernsen; contest the creation of a guardianship; or contest the appointment of a person

as guardian pursuant to section 1055.001 of the Texas Estates Code. See TEX. EST.

CODE ANN. § 1055.001. Thus, neither Dianna nor Lynn could participate in any fashion

in Bernsen’s guardianship proceeding at any stage.          Dianna and Lynn both timely

appealed.

G.     Post-judgment Motions

       Leon Jr.’s daughter Lea, as next friend of Leon Jr., filed a motion for the trial court

to inspect and approve in camera a settlement of all claims against Bernsen in the district

court suit.   Lynn’s counsel, on behalf of Lynn, also filed a motion to approve this

settlement, which sought to award Lea and Lynn Bernsen $4,000,000 in cash and equities

along with a one-half interest in trust assets. Bernsen, Bernsen Farms, and Dianna filed

their objections to the purported settlement agreement.

                     II.   STANDARD OF REVIEW AND APPLICABLE LAW

       “The issue of whether a party has standing to participate in a guardianship

proceeding is a question of law” which we review de novo. In re Guardianship of Miller,

299 S.W.3d 179, 188 (Tex. App.—Dallas 2009, no pet.). “When standing has been

conferred by statute, the statute itself should serve as the proper framework for a standing

analysis.”    In the Interest of K.D.H., a Child, (Tex. App.—Houston [1st Dist.] 2014, no

pet.); In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.—Houston [14th Dist.] 2005, orig.



                                                14
proceeding [mand. denied]). Section 1055.001 of the Texas Estates Code, entitled

“Standing to Commence of Contest Proceeding” provides that a person who has an

interest adverse to a proposed ward or incapacitated person is not entitled to file an

application to create a guardianship, contest the creation of a guardianship, contest the

appointment of a person as guardian, or contest an application for complete restoration

or modification of a ward’s guardianship. See TEX. EST. CODE ANN. § 1055.001(b).

Because the Estates Code does not define what constitutes an interest adverse to the

proposed ward, we must look to its ordinary meaning and appellate court decisions

addressing standing challenges to formulate an understanding of how the term has been

applied in different contexts. See In re Guardianship of Miller, 299 S.W.3d at 189.

“Adverse interest” is defined as “an interest that is opposed or contrary to that of someone

else.” Adverse interest, BLACK’S LAW DICTIONARY (11th ed. 2019).

       In Allison v. Walvoord, the El Paso court of appeals held that the plaintiffs lacked

standing to contest a guardianship proceeding because they were not interested in the

welfare of the proposed ward. 819 S.W.2d 624, 625 (Tex. App.—El Paso 1991, no writ).

The plaintiffs’ interest was in obtaining a substantial judgment against the proposed ward

“which could only adversely affect his welfare.” Id.; see also 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.) (“[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 Valdez, No. 04–07–00712–CV, 2008 WL 2332006, at *2

(Tex. App.—San Antonio June 4, 2008, pet. denied) (mem. op.). (same); In re

Guardianship of Olivares, No. 07-07-00275-CV, 2008 WL 5206169, at *2 (Tex. App.—



                                                15
Amarillo, Dec. 12, 2008, pet denied) (mem. op.) (holding that evidence of self-dealing is

evidence of an adverse interest); Betts v. Brown, No. 14–99–00619–CV, 2001 WL 40337,

at *4 (Tex. App.—Houston [14th Dist.] Jan. 18, 2001, no pet.) (mem. op.) (generally

defining an adverse interest as an interest that adversely affects the proposed ward’s

welfare of well-being of the proposed ward).

       The Dallas Court of Appeals held that debt alone does not automatically create an

interest adverse to ward that would divest that person of standing to file an application to

create or contest a guardianship “without evidence of the amount of the debt in relation

to the estate of the ward or proposed ward, the ability or inability of the proposed guardian

to repay the debt, or some other evidence such as misuse of funds to the detriment of the

ward or proposed ward.” In re Guardianship of Miller, 299 S.W.3d at 189. In Miller, the

court of appeals did not determine if debt of $100,000 was sufficient to preclude standing

because in that case there was no evidence showing the applicant was indebted to the

proposed ward. Id. To the contrary, the record only showed that a business was indebted

to the proposed ward, and there was “no evidence regarding the ownership or control” of

the business and “no evidence that the [applicant] owned any interest in the [business]”.

Id.; see also In re Guardianship of Olivares, 2008 WL 5206169, at *2 (holding that an

applicant had an interest sufficiently adverse to the ward because “a factfinder could

reasonably conclude that though [the applicant] has the ability to earn wage and care for

himself, he opted to live off his potentially incapacitated mother and expend her finite

estate for his own benefit . . . [and] much of this self-dealing occurred after he became

her fiduciary via a power of attorney).




                                                16
       In Parker, the ward claimed the applicant held an interest adverse to hers because

the applicant sought to control the ward’s trust. In re Guardianship Parker, 275 S.W.3d

623, 632 (Tex. App.—Amarillo 2008, no pet.). The trial court denied the ward’s motion in

limine, and the Amarillo Court of Appeals affirmed. Id. The court held that evidence was

insufficient to establish the applicant sought to gain control of the ward’s trust and had an

interest “adverse” to the ward where the only evidence the ward produced was testimony

of the applicant’s son that he “assumed” the applicant was concerned about her

inheritance. Id. He assumed the applicant was concerned about her inheritance because

the applicant made a comment that loans were made from the trust, and the applicant

was unsure if the loans were repaid. Id. Thus, the applicant was not a “person with an

interest adverse the proposed ward.” Id.

                              III.   LYNN’S MOTION IN LIMINE

       In appellate cause number 13-17-00593-CV, Dianna argues that we should

reverse the trial court’s judgment granting Lynn’s motion in limine because the trial court’s

judgment that Dianna lacks standing is not supported by sufficient evidence.

       1. Dianna Knew about Bernsen’s Illness in 2012

       After reviewing the record, Dianna’s testimony suggests that in June, July, and

August 2012, Dianna knew Bernsen was suffering from some measure of incapacity. In

November 2012, Dr. Praderio diagnosed Bernsen with Alzheimer’s Dementia and

declared him incapacitated. When Dr. Praderio provided Dianna with his diagnosis and

offered to draft a guardianship letter, Dianna “disappeared,” did not take Bernsen to his

follow-up appointment, and never contacted Dr. Praderio or his staff again. Although Dr.

Praderio discussed prescribing Bernsen medication, Dianna did not want any medications



                                                17
administered. Despite Dr. Praderio’s diagnosis that Bernsen’s condition would continually

deteriorate, three years later, Dianna continued to assert that her father was “fully

competent to manage all of his affairs” and insisted that Bernsen still ran the company in

2013 and 2014 and was “doing a great job.” Moreover, Dr. Praderio provided compelling

testimony about his interactions with Dianna, yet Dianna denies that such conversations

ever took place. She refused to acknowledge Dr. Praderio’s findings and asserted that

he must have Bernsen confused with another patient because his testimony was

inaccurate. Thus, it can be inferred that Bernsen was not treated for his illness, and

Dianna was not concerned with Bernsen’s well-being.               See TEX. EST. CODE ANN.

§ 1001.001 (“A court may appoint a guardian . . . only as necessary to promote and

protect the well-being of the incapacitated person); see also In re Guardianship of Jones,

No. 02-15-00367-CV, 2016 WL 4474353, at *9 (Tex. App.—Fort Worth Aug. 25. 2016, no

pet.) (mem. op.) (holding that granting a motion in limine as to standing is harmless where

the evidence is sufficient to support the trial disqualification findings).

       2. Dianna Deceived Bernsen

       An understanding of the timing of Dianna’s actions is critical to our analysis. The

record provides that most of Bernsen’s “gifts” to Dianna—the securement of Dianna’s one

percent interest in Bernsen Farms, the creation of the partnership, and the power of

attorney documents were signed immediately after Dianna learned of Bernsen’s lack of

capacity and right after Dianna “had been working on Bernsen all weekend.” Only one

month after Dr. Praderio declared Bernsen incapacitated, Dianna’s e-mails establish that

she created the partnership contrary to her testimony. When Dianna was presented with




                                                  18
the partnership e-mails, she continued to claim that she was only referring to deed records

and possibly to powers of attorney.

      After Dianna, in her own words, “had been working on [Bernsen] all weekend,”

Bernsen signed the partnership agreement, new will, and powers of attorney appointing

Dianna as his guardian.        Dianna’s own expert, Dr. Mark Kunik, M.D., testified that

Dianna’s comment “hints of coercion,” raises a red flag, and would cause him to

investigate to make sure there “are safeguards in place so that [his] patient was not

inappropriately coerced.” He testified that he would have probably called Adult Protective

Services. Thus, based on the record before us, the trial court could reasonably have

concluded that Dianna coerced Bernsen’s signatures on several legal documents while

she had actual knowledge of his incapacity, and that she instituted these actions solely

for her own benefit. See id.

      3. Dianna’s “gifts” are Pending in Litigation

      On February 13, 2017, Dianna filed a “Trustee of the Bernsen Family Trust” in the

district court alleging that Bernsen had resigned as trustee on May 19, 2015 and attached

Bernsen’s alleged resignation letter. As a result, Dianna is currently the sole trustee of

The Bernsen Family Trust. Moreover, Dianna is the sole general partner of Bernsen

Farms, which according to Lynn, holds more than six thousand acres of incredibly

valuable farm property.    Thus, the trial court could have determined that Dianna’s

ownership interest in The Bernsen Family Trust and Bernsen Farms is adverse to

Bernsen. See In re Guardianship of Miller, 299 S.W.3d at 189 (concluding that the trial

court erred in finding the applicant lacked standing where there was no evidence

regarding the ownership or control of the subject property and no evidence that the



                                                19
applicant owned any interest in the subject property). Here, the trial court could have

concluded that Dianna acquired legal title of Bernsen’s assets for the purpose of obtaining

control of the same after Dianna knew that Bernsen no longer had the ability to

responsibly execute these documents due to his lack of capacity.              See Chapman

Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 439 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied) (“A fiduciary duty requires the fiduciary to place the interest

of the other party above his own.”); see also In re Guardianship of Olivares, 2008 WL

5206169, at *2 (holding that self-dealing after becoming a fiduciary via a power of attorney

is an interest adverse to the ward).

       Moreover, both gift deeds (one dated December 2012 and another dated

November 2013) conveyed to Dianna as separate property and an undivided one percent

interest in real property are presently pending in dispute in the 28th Judicial District Court.

Thus, Dianna is presently involved in some sort of litigation adverse to Bernsen in the

district court. See Allision, 819 S.W.2d at 627 (holding that litigants with a potential legal

claim against the proposed ward did not have standing to participate in the ward’s

guardianship proceeding).

       4. Dianna’s Testimony is Discredited

       On numerous occasions, Dianna’s testimony wad discredited. She disagreed that

some of her 2015 deposition testimony was untruthful and claimed it was “uninformed.”

For example, she claimed she was unaware Bernsen gifted over 5,000 acres of valuable

farming property to her even though she testified that Bernsen “does not give things

away,” and the first time she heard of such a “gift” was at the 2015 deposition. However,

Dianna’s e-mails directly contradicted this testimony. Dianna continued to assert that she



                                                 20
was unaware Bernsen had been diagnosed with any illnesses, and she could not recall

any of her e-mails with attorney Leshin about Dr. Praderio. Dianna was also adamant

that Bernsen continued to run the partnership and was fully competent to manage his

affairs three years after Dr. Praderio diagnosed him with Alzheimer’s Dementia. Despite

being confronted with her e-mails regarding her role in the creation of the partnership,

legal documents, and Bernsen’s will, Dianna continued to assert she was not privy to

such information and did not participate. Dianna testified that she did not recall being

sent a copy of her father’s proposed will even though Dianna’s testimony regarding her

e-mails established that on March 5, 2012, attorney Leshin sent Dianna the proposed

estate planning documents along with Bernsen’s proposed will.

       The trial court also heard Tommy, Bernsen’s brother, testify that he did not draft a

letter that was allegedly written by him requesting that Dianna be appointed as Bernsen’s

guardian and was unaware that Dianna sought to become Bernsen’s guardian. The letter

was filed by Dianna. Thus, the trial court could have inferred that at Tommy’s expense,

Dianna concocted the instrument to sway the trial court into awarding her guardianship.

Given the evidence of Dianna’s contradictory testimony, we cannot hold that the trial court

erred in determining that Dianna had an interest sufficiently adverse to her father to bar

her from participating in his guardianship proceeding, and we presume the trial court

reconciled conflicting evidence in favor of its ruling. See Avary v. Bank of America, N.A.,

72 S.W.3d 779, 791 (Tex. App.—Dallas 2002, pet denied) (“A fiduciary “owes its principal

a high duty of good faith, fair dealing, honest performance, and strict accountability.”); see

also In re Guardianship of Olivares, 2008 WL 5206169, at *2 (“Given the evidence of his




                                                 21
self-dealing, we cannot hold that the trial court erred in determining that Olivares had an

interest sufficiently adverse” to the proposed ward.).

       5. Dianna has Self-conflicting Fiduciary Obligations

       As general partner for Bernsen Farm and sole trustee of the Bernsen Family Trust,

Dianna owes fiduciary duties to these establishments along with their beneficiaries. If

awarded guardianship, Dianna also would owe a fiduciary duty to Bernsen. Section

1055.001 was designated to “protect the well-being of the individual” and “those with an

adverse interest can hardly qualify as being persons interested in protecting his well-

being.” Allison, 819 S.W.2d 624. As guardian of Bernsen’s person and estate, Dianna

would be obligated to place his interest above her position as general partner of Bernsen

Farms and Bernsen Family Trust. Also, it can be inferred that by seeking guardianship

of Bernsen’s person and estate, Dianna does not want to avoid any potential conflicts of

interest The Bernsen estate might pose on her. As Lynn argued, “one person cannot

loyally serve multiple masters with competing agendas.” The purpose of the partnership

is to “make profits, preserve capital, increase wealth,” and Dianna’s role as Bernsen’s

guardian would create contradicting roles. See Avary v. Bank of America, N.A., 72

S.W.3d 779, 791 (Tex. App.—Dallas 2002, pet denied); see also In re Guardianship of

Olivares, 2008 WL 5206169, at *2. Given the evidence of Dianna’s self-dealing, which

occurred after Dr. Praderio determined Bernsen was incompetent, we conclude that the

trial court did not err in determining Dianna had an interest sufficiently adverse to Bernsen

to bar her from participating in the guardianship proceeding. Id.

       6. Summary




                                                22
        After reviewing the record, we cannot support Dianna’s position that “no evidence

exists to support the trial court’s [implied] findings that Dianna is indebted to Mr. Bernsen

or holds adverse interests as a result.”      Contrary to Dianna’s assertion, the record

provides overwhelming evidence that Dianna is abusing the powers and control that she

bestowed on herself after Dr. Praderio determined Bernsen was incompetent and

informed Dianna of such. Because we affirm the trial court’s order granting Lynn’s motion

in limine and find that Dianna lacks standing to commence or contest this guardianship

proceeding, we conclude that Dianna similarly has no standing to challenge the trial

court’s orders arising from the guardianship proceeding in this appeal. See In re Estate

of Denman, 270 S.W.3d 639, 642 (Tex. App.—San Antonio 2008, pet. denied) (an

appealing party does not have standing to complain of errors that merely affect the rights

of others); see also In re Guardianship of Benavides, 2014 WL 667525, at *1.

Accordingly, we overrule Dianna’s issue. See TEX. R. APP. P. 47.1.

                             IV.     DIANNA’S MOTION IN LIMINE

        In appellate cause number 13-17-00591-CV, by her sole issue, Lynn asserts the

trial court erred by finding that Lynn has interests adverse to Bernsen and thus lacks

standing to serve as his guardian.

A.      Lynn Holds a Pecuniary Interest in Leon Jr.’s District Court Suit

        Lynn testified that she has three sources of financial interest in the district court

suit.   In response to Dianna’s assertion that Lynn lacks standing to commence a

guardianship proceeding, Lynn allegedly disclaimed all rights to inherit money and

property through Leon Jr.’s estate from any judgment in the district court suit because

she wanted “to be disassociated from the lawsuit between my dad and my grandfather.”



                                                 23
However, Lynn did not file the disclaimer with the County Clerk of Nueces County. See

TEX. EST. CODE ANN. § 240.102 (providing that a disclaimer must be delivered to the

personal representative of the decedent’s estate or filed in the official public records of

the county in which the decedent was domiciled or owned real property); TEX. LOC. GOV’T

CODE ANN. § 191.001(b). The record provides that Lynn merely “filed” this disclaimer in

response to Dianna’s motion in limine. Thus, the trial court could have concluded that

Lynn’s adversity cannot be altered by the disclaimer as it has no legal effect. Moreover,

Lynn’s purported disclaimer does not purport to disclaim Lynn’s interest in The Bernsen

Family Trust. Therefore, the trial court could have found that far from excluding herself

from the district court suit, Lynn continues to maintain positions that are adverse to

Bernsen.

       Nonetheless, even if we assume that Lynn’s disclaimer is legally valid, Lynn

testified that any specific inheritance from the district court suit would transfer to her

children: a sixteen-year-old and an eighteen-year-old. Here, the trial court could infer

that Lynn is placing the welfare of her children above Bernsen. See TEX. FAM. CODE ANN.

§ 151.001(a)(4) (providing that a parent has the duty to manage the child’s estate); see

also In re Guardianship of Olivares, 2008 WL 5206169, at *2 (finding an adverse interest

when the applicant has the ability to earn wages and care for himself, yet he opted to live

off his potentially incapacitated mother and expend her finite estate for his own benefit).

Because Lynn is still actively engaged in the district court suit, and because she has not

attempted to dismiss the district court suit, it can be inferred that she is not concerned in

placing Bernsen’s interests above her own. Thus, the trial court could have determined

that Lynn is an adverse party in an ongoing proceeding as Lynn did not file a disclaimer



                                                24
or a motion to dismiss the district court suit. See Allison, 819 S.W.2d at 627 (holding that

litigants with a potential legal claim against the proposed ward did not have standing to

participate in the ward’s guardianship proceeding).

B.     Lynn Accuses Bernsen of Misconduct and Fiduciary Breaches

       Lynn adopts many of Leon Jr.’s allegations against Bernsen in her motion in limine.

Specifically, Lynn accuses Bernsen of “fiduciary misconduct” in what according to her,

“may seem like a prolonged discussion about [Bernsen] and his many breaches of

fiduciary duties owed to The Bernsen Family Trust (including duties owed to [Leon Jr.],

and his children (Lynn Allison, Lea Bernsen, and Garrick Bernsen)”:

           •   failing to include The Bernsen Family Trust in tax returns;

           •   refusing to file required tax returns for the years 2005-2011;

           •   failing to set up bank accounts to segregate The Bernsen Family Trust;

           •   terminating The Bernsen Family Trust;

           •   filing late tax returns for the years 2004-2010 for The Bernsen Family Trust;

           •   giving false testimony about Anna Marie’s will;

           •   filing legal documents distributing the trusts to himself;

           •   depriving The Bernsen Family Trust of seven years’ worth of income; and

           •   forming Bernsen Farms.

Lynn claims she will “never enjoy any ownership of those farm and ranch properties”

because of Bernsen’s alleged breaches of fiduciary duties and claims she “would have

received millions of dollars’ worth of farm and ranch properties upon the date of

[Bernsen’s passing]” without such breach. In addition, Lynn’s pleadings state she will

“have absolutely no say whatsoever in the management or control of the farm and ranch


                                                 25
properties” or “be compensated for work or services provided for the benefit of the

Bernsen Family Trust” whereas she would have received “millions of dollars[’] worth of

farm or ranch properties upon the date of [Bernsen’s] passing.” Thus, Lynn’s own

pleadings in the guardianship proceeding demonstrate her a hostile position towards

Bernsen as she recites the same claims as Leon Jr., who sued Bernsen for $30,000,000.

While Lynn laments her losses due to Bernsen’s “breaches,” the trial court could have

inferred that Lynn stepped into Leon Jr.’s shoes by adopting verbatim his allegations

against Bernsen, and Lynn’s intention as Bernsen’s guardian is to accomplish the same

goals as her father Leon Jr. Thus, the trial court could have concluded that Lynn has an

adverse interest because she adopted a hostile position to Bernsen. See id.; see also In

Re Guardianship Gilmer, WL 3616071, at *8 (“Because the plaintiffs [in the lawsuits] were

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

plaintiffs lacked standing.”).

C.     Lynn Accuses Bernsen of Crime or Fraud

       While seeking to become Bernsen’s guardian, Lynn further accuses Bernsen of

committing a crime or fraud. Dianna at one point attempted to seal her communications

with attorney Leshin claiming she was a representative of Bernsen and asserted attorney-

client privilege. Bernsen similarly objected to the disclosure of communications also

claiming privilege. However, Lynn asserted that the communications between Dianna

and attorney Leshin may be disclosed pursuant to the crime-fraud exception arguing that

the communications are not privileged if attorney Leshin enabled or aided Bernsen to

commit or plan to commit a crime or fraud. Because Lynn’s pleadings and allegations

are hostile to Bernsen, the trial court could have found that Lynn holds an adverse



                                              26
interest. See id.; see also In re Guardianship of Benavides, 2014 WL 667525, at *1

(holding that a person who is suing a proposed ward or incapacitated person has an

interest adverse to the proposed ward).

D.      Lynn’s Poor Judgment

        On numerous occasions, Lynn asserted that she was very upset to learn of the

district court suit and that her father sued Bernsen. Although the thought of Leon Jr. suing

Bernsen in the district court suit troubled her, Lynn nevertheless sought and hired the

very same attorney that represents Leon Jr. in his suit against Bernsen. Lynn’s counsel

in this case represents:

             •   Leon Jr. in the district court suit against Bernsen;

             •   Leon Jr. in his guardianship application (while simultaneously suing
                 Bernsen in district court suit);

             •   Lynn in the district court suit as an intervenor (and approving the proposed
                 settling agreement); and

             •   Lynn in the guardianship proceeding.

Moreover, Lynn’s counsel’s law partner represents Lea as next of friend of Leon Jr. in the

district court suit. 11 Thus, Lynn specifically sought counsel that represents parties suing

Bernsen in both the district court suit and the guardianship proceeding. The trial court

could construe Lynn’s action as the comingling of different interests, which is adverse to

Bernsen.

E.      Lynn Seeks to Dissolve Bernsen Farms

        Lynn testified that she seeks a dissolution of Bernsen Farms and an

implementation of a constructive trust, and she is aware that this would result in a


        11We note that Bernsen’s sister, Virginia, was also represented by the same attorney but withdrew
her application shortly after she appeared in the guardianship proceeding.

                                                       27
personal liability for Bernsen. See KCM Financial LLC v. Bradshaw, 457 S.W.3d 70, 87

(Tex. 2015) (“The party requesting a constructive trust must establish the following: (1)

breach of a special trust or fiduciary relationship or actual or constructive fraud; (2) unjust

enrichment of the wrongdoer; and (3) an identifiable res that can be traced back to the

original property.”). Under Lea’s proposed settlement agreement, which Lynn supports,

The Bernsen Family Trust would be partitioned into two new and distinct trusts. One trust

would grant Lea and Lynn a one percent general partnership interest in Bernsen Farms,

along with $4,000,000 in cash, stocks, and equities. The trial court could have found that

this is an adverse interest that is contrary to Bernsen.

       Moreover, Lehrman filed a joinder in the trial court in support of the motion in

limine against Lynn on behalf of the partnership. At the hearing, he argued the following:

       [Lynn] is now carrying on the attack that [Leon Jr.] originally raised against
       [Bernsen] in the 28th District Court. She has now taken that over. That’s
       huge, Judge . . . it will have enormous tax consequences on the estate,
       Judge. On the ward . . . if the [Partnership] is somehow dismantled. It will
       also have extreme personal liability exposure with respect to personal
       liability for the family. And, finally it will also divest any personal protection,
       any shielding of assets to creditors.

Thus, the trial court could have believed that Lynn holds an interest adverse to Bernsen

because the lawsuit against the partnership and the proposed settlement agreement,

which she supports, could only adversely affect Bernsen but benefit her. See TEX. EST.

CODE ANN. § 1104.351 (providing that a person may not be appointed guardian if the

person asserts a claim adverse to the proposed ward or the proposed ward’s property).

Additionally, the trial court could have inferred that by seeking guardianship of Bernsen’s

person and estate, Lynn did not want to avoid any potential conflicts of interest the

Bernsen estate might pose on her.



                                                  28
F.      Summary

        Given the record before us, we cannot hold that the trial court erred in concluding

Lynn lacked standing to participate in Bernsen’s guardianship proceeding. We conclude

that the evidence supports the trial court’s finding that Lynn has an interest contrary to

Bernsen’s well-being. Finally, we note that Bernsen’s district court counsel adopted

Dianna’s brief and position on appeal that Lynn lacks standing to participate in Bernsen’s

guardianship proceeding. Thus, we overrule Lynn’s sole issue.

                                            V.      CONCLUSION

        Having overruled Dianna and Lynn’s issues, we affirm the judgment of the trial

court in both cause numbers. 12


                                                                     ROGELIO VALDEZ,
                                                                     Justice


Delivered and filed the
8th day of August, 2019.




        12   On December 13, 2018, Bernsen filed a “Motion for Protective Order and to Preserve Claims of
Privilege” with this Court. On February 22, 2019, he filed a “Supplemental Motion for Protective Order” with
this Court. Bernsen’s motion in our Court was contingent on our reversal of the trial court’s judgment.
However, because we affirm the trial court’s determination that Dianna and Lynn lack standing to
commence or contest this guardianship proceeding, we dismiss Bernsen’s motion. See Bland v. Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554–555 (Tex. 2000) (“Standing is a prerequisite to subject-matter
jurisdiction, and subject-matter jurisdiction is essential to a court’s power to decide a case.”); see also In re
Guardianship of Benavides, 04-13-00197-CV, 2014 WL 667525, at *1 (Tex. App.—San Antonio Feb. 19,
2014, pet. denied) (mem. op.).

                                                           29
