                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00039-CV


IN THE MATTER OF THE
GUARDIANSHIP OF ERMA LEE
BAYS, AN INCAPACITATED
PERSON


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           FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

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                                   OPINION

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                                 I. INTRODUCTION

      Appellant Nyagudi O. Okumu appeals the trial court’s order that, among

other things, appointed Appellee Wells Fargo Bank, N.A. as the temporary

guardian of the estate of Erma Lee Bays. In four issues, Okumu contends that

the trial court failed to properly serve him notice of the temporary guardianship

hearing; that the trial court deprived him of due process of law when it ordered

that he turn over funds to the trial court’s registry; that the trial court’s order

requiring him to turn over funds is not supported by the pleadings or evidence
and is vague and ambiguous; and that the trial court lacked jurisdiction to hold

him in contempt. We will affirm.

                                   II. BACKGROUND

        On September 15, 2008, a social worker filed a suggestion of need for

guardianship or need for investigation of circumstances under probate code

section 683. See Tex. Prob. Code Ann. § 683 (West Supp. 2010). Among other

information, the suggestion stated that Bays, the proposed ward, had transferred

money to Okumu and that Bays was unable to care for her own physical health

and manage her own financial affairs.        Attached to the suggestion was a

physician’s certificate of medical examination indicating that Bays was partially

incapacitated and was unable to handle her financial affairs.      Based on the

suggestion, the trial court appointed a court investigator and a guardian ad litem

to investigate.

        Based on her investigation, the guardian ad litem filed an application for

letters of guardianship on October 27, 2008. The guardian ad litem requested

that the trial court appoint a permanent guardian of the person and the estate of

Bays.    Following the filing of the application for guardianship, the trial court

appointed an attorney ad litem to represent Bays on November 18, 2008.

        Okumu filed a pro se motion on November 20, 2008, asking the trial court

to inform him of any actions taken in the case and asking the court to recognize

that Bays had given him her power of attorney. On November 24, 2008, Okumu

filed another motion titled ―Answer to Application for Letters of Guardianship

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Section 683, Texas Probate Code and a Motion for Continuance on the Hearing

Therein.‖ In that motion, Okumu claimed to have an ―interest in the welfare of

[Bays].‖ Okumu’s attorney filed a notice of appearance as counsel on January 5,

2009. That attorney filed a contest to the guardianship. In his contest, Okumu

claimed that Bays did not need a guardian. He alternatively requested that the

trial court appoint him as the guardian.

        On January 21, 2009, the guardian ad litem filed an application for

temporary guardianship. See id. § 875 (West Supp. 2010). In the pleading, the

guardian ad litem alleged that emergency relief was needed because Okumu had

withdrawn over $200,000 from bank accounts held in Bays’s name and closed

them.    The trial court held a hearing on January 27, 2009, regarding the

temporary guardianship. Okumu, accompanied by new counsel, attended the

hearing, asked the court to rule on Okumu’s previous attorney’s request to be

removed as his counsel, and requested a continuance. The trial court denied the

continuance, allowed Okumu’s substitution of counsel, and conducted the

temporary guardianship hearing.      At the close of the hearing, the trial court

appointed temporary guardians—a temporary guardian of Bays herself and Wells

Fargo as temporary guardian of her estate. In its temporary guardianship order,

the trial court ordered Okumu to place funds that had been removed from Bays’s

accounts or from accounts held jointly in Okumu’s and Bays’s names, into the

trial court’s registry. Okumu did not comply. The trial court eventually found

Okumu in contempt and ordered him incarcerated. This appeal followed.

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                                  III. DISCUSSION

      A.    Notice to Bays and the Trial Court’s Jurisdiction

      In part of his first issue, Okumu contends that Bays was never ―personally

served with citation‖ before the guardianship hearing.        Thus, according to

Okumu, the trial court lacked jurisdiction to enter an order appointing temporary

guardians for Bays.

      Section 875(e) of the probate code states that ―[o]n the filing of an

application for temporary guardianship, the clerk shall issue notice that shall be

served on the respondent, the respondent’s appointed attorney, and the

proposed temporary guardian named in the application, if that person is not the

applicant.‖ Tex. Prob. Code Ann. § 875(e). Relevant to this case, a party may

resort to substituted service, but only upon the failure of those methods which

provide proof of actual notice—personal service or service by registered or

certified mail, return receipt requested. See Tex. R. Civ. P. 106(a), (b); State

Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 298–99 (Tex. 1993). Rule 106

allows the trial court to sign an order approving a substitute method of service,

provided the movant files a motion supported by proper affidavit. See Tex. R.

Civ. P. 106(b); Costley, 868 S.W.2d at 299. A trial court’s order authorizing

substituted service is the sole basis for such authority. Vespa v. Nat'l Health Ins.

Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003, no pet.).

      Citing cases that stand for the proposition that notice cannot be waived in

a temporary guardianship setting, Okumu contends that ―personal service of a

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putative or an alleged incapacitated person in a guardianship proceeding is

mandatory.‖1 See e.g., Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.—San

Antonio 1989, writ dism’d) (holding that the personal service requirement under

the former guardianship statute was jurisdictional and, therefore, the trial court

properly dismissed a guardianship proceeding when the proposed ward had not

been personally served). But Okumu is simply mistaken in his proposition that

substituted service under Rule 106 is not an accepted method of personal

service in a temporary guardianship setting.

      In this case the record demonstrates that after multiple attempts to serve

Bays by the certified process server under the methods that provide proof of

actual service, the process server resorted to court order; and in compliance with

Rule 106 and that order, he served Bays by attaching the notice to her door. See

Tex. R. Civ. P. 106(b). The record contains an affidavit by the process server, a

motion for substituted service, an order by the trial court, and a return by the

process server—all before the hearing on temporary guardianship. We overrule

this portion of Okumu’s first issue.

      In part of his first issue, Okumu also argues that because Bays was in the

hospital when the temporary guardianship hearing was held, she ―could not [be]

      1
       In his original brief, Okumu argued that service was defective under Rule
106. In his reply brief, Okumu changed the focus of his issue, contending that
substituted service is a waiver of personal service and that substituted service is
inappropriate in a guardianship setting. The record demonstrates that the
process server attempted multiple times to personally serve Bays, that Bays
refused to be served, and that the process server obtained a Rule 106 order and
complied with it.

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and was not present at [the guardianship] hearing.‖ Thus, according to Okumu,

the trial court lacked jurisdiction and its order was void. Although the probate

code does state that a proposed ward has the right to be present at the hearing,

we find no infirmity in the trial court allowing Bays’s attorney ad litem to represent

her interests while Bays remained in the hospital. See Tex. Prob. Code Ann.

§ 685(a) (West 2003); In re Guardianship of B.A.G., 794 S.W.2d 510, 513 (Tex.

App.—Corpus Christi 1990, no writ) (reasoning that personal appearance at a

hearing appointing a guardian can be made by ―representation by counsel‖). We

overrule this part of Okumu’s first issue.

      In the remainder of his first issue, Okumu seems to contend that the trial

court is required to demonstrate that a process server’s return be on file for ten

days prior to the temporary guardianship hearing.        See Tex. R. Civ. P. 107.

Wells Fargo argues that Okumu is trying to add statutory requirements to the

probate code that do not exist. We conclude that probate code section 875 does

not have a ten-day-notice requirement prior to a hearing being held. See Tex.

Prob. Code Ann. § 875. Indeed, in a temporary guardianship procedure, the

probate code requires a hearing to be held ―not later than the 10th day after the

date of the filing of the application for temporary guardianship.‖ Tex. Prob. Code

Ann. § 875(f)(1). It would simply be impossible to allow a return to be on file for

ten days prior to the temporary guardianship hearing and to hold the hearing

within the statutorily required ten-day period.     We overrule the remainder of

Okumu’s first issue.

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      B.    Due Process

      In part of his second issue, Okumu contends that he was deprived of due

process of law when the trial court ordered that he turn over funds that had

previously been in Bays’s bank accounts. We conclude that Okumu was not

deprived of due process.

      Due process of law requires that an individual receive notice and hearing

before being deprived of a property right. See Grannis v. Ordean, 234 U.S. 385,

394, 34 S. Ct. 779, 783 (1914) (―fundamental requisite of due process of law is

the opportunity to be heard‖).     But due process does not require that a

complainant who has been granted an opportunity to be heard and has had his

day in court should, after a judgment has been rendered against him, have

further notice and hearing before supplemental proceedings are taken to reach

his property in satisfaction of the judgment against him. See Ex parte Johnson,

654 S.W.2d 415, 418 (Tex. 1983) (stating that notice and hearing prior to

issuance of a turnover order is not required). In the absence of a statutory

requirement, it is not essential that a complainant be given notice before the

issuance of an execution against his tangible property; after the rendition of the

judgment, he must take notice of what will follow, no further notice being

necessary to advance justice. Endicott Johnson Corp. v. Encyclopedia Press,

Inc., 266 U.S. 285, 288, 45 S. Ct. 61, 62–63 (1924).

      In this case, Okumu complains that he was deprived of due process of law

because he was not given notice of the temporary guardianship hearing. Okuma

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does not point this court to any statutory requirement entitling him to notice prior

to the hearing which he participated in.      And the record demonstrates that

Okumu participated extensively in the temporary guardianship proceedings. He

filed multiple motions prior to the temporary guardianship hearing contesting both

the guardianship and his deposition in relation to the guardianship.           The

application for guardianship clearly indicated that Bays’s attorney would seek the

return of funds that had been removed by Okumu from Bays’s bank accounts.

Okumu in fact attended the temporary guardianship hearing with counsel, and his

counsel questioned multiple witnesses at the hearing. After the trial court issued

its order which Okumu now complains of, he then filed multiple post-hearing

motions contesting the guardianship. In short, Okumu has been granted his

opportunity to be heard and had his day in court. See Johnson, 654 S.W.2d at

418. We overrule this portion of Okumu’s second issue.

      C.    The Propriety of the Trial Court’s Order that Okumu Deposit
            Funds into the Court’s Registry

      In part of his third issue, Okumu contends that the trial court’s order

requiring him to deposit funds withdrawn by him or by Bays into the court’s

registry is ―void because it was not supported by sufficient pleading or sufficient

evidence and was vague and ambiguous.‖

      The trial court’s order appointing the temporary guardians ordered that

Okumu ―shall deliver all funds withdrawn by him or payable to him, or cash

withdrawals by [Bays] from any sole or joint accounts, certificates of deposit of



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[Bays] from October 27, 2008 to the present, to the Registry of this Court.‖ The

order also stated that the monies deposited into the court’s registry were to

include, but not be limited to: $19,000.00 withdrawn from First Financial Bank,

$120,047.90 withdrawn from JPMorgan Chase Bank, $99,465.84 withdrawn from

Bank of America, and $64,932.08 withdrawn from Woodforest National Bank.

      Although it is difficult to decipher exactly what Okumu is complaining of in

this issue, we conclude that the court requiring Okumu to deposit these funds

into the court registry does not implicate any of the theories seemingly argued by

him. In reaching this conclusion, we recognize that a trial court does have some

inherent authority to order an individual to deposit funds into the court’s registry.

See Castilleja v. Camero, 414 S.W.2d 431, 433 (Tex. 1967) (holding that when

disputed funds are in danger of being lost or depleted, the court can order

payment of disputed funds into its registry until ownership is determined);

N. Cypress Med. Ctr. Operating Co. v. St. Laurent, 296 S.W.3d 171, 178 (Tex.

App.—Houston [14th Dist.] 2009, no writ) (same). This is especially true when,

as in this case, a complainant can show a dispute about funds and show that the

funds are in danger of being depleted. See Castilleja, 414 S.W.2d at 433–34.

      In this case, the guardian ad litem gave detailed testimony regarding

almost $300,000 that had been withdrawn from various bank accounts held in

Bays’s name or in joint accounts held in both Bays’s and Okumu’s names. The

guardian ad litem testified extensively about her investigation of Bays’s assets

and said that she believed Okumu had wrongfully removed funds from accounts

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owned by Bays. In addition, the guardian ad litem testified that Bays had signed

deeds and quitclaim deeds of her property to Okumu. All of this was done at a

time when Bays was ninety-three years old and in poor physical and mental

health.   Indeed, the immediate danger of serious impairment to her and the

imminent danger of loss to her property served as the bases for the original

suggestion by the social worker that Bays was in need of a guardian. More

specifically, the suggestion of guardianship stated that since the time Bays had

been unable to care for her own physical health and manage her own financial

affairs, she had been giving money to Okumu, had revoked her son’s power of

attorney appointment, and had granted that power to Okumu. The suggestion

further provided that it was not clear why Bays had done such things and that

Okumu had a questionable background and had been disbarred in Indiana.

Furthermore, the application for temporary guardianship specifically requested

the relief that Okumu be ordered to place these funds in the court’s registry. We

hold that the trial court did not err by ordering Okumu to place these funds in the

court’s registry and that its order is supported by the evidence and not void. See

Castilleja, 414 S.W.2d at 433–34. We overrule this portion of Okumu’s third

issue.




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      D.    Contempt Issues

      In the remaining parts of his second and third issues, and in his fourth

issue, Okumu makes various arguments regarding the trial court having found

him in contempt. We conclude that we have no jurisdiction to address these

issues.

      Contempt proceedings are not appealable because they ―are not

concerned with disposing of all claims and parties before the court, as are

judgments; instead, contempt proceedings involve a court’s enforcement of its

own orders, regardless of the status of the claims between the parties before it.‖

In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915–16 (Tex. App.—Fort

Worth 2007, orig. proceeding); see also Norman v. Norman, 692 S.W.2d 655,

655 (Tex. 1985) (holding that court of appeals had no jurisdiction over an appeal

from an order finding a party not in contempt); In re Naylor, 120 S.W.3d 498, 500

(Tex. App.—Texarkana 2003, orig. proceeding) (―Decisions in contempt

proceedings are not appealable.‖). A ruling regarding a contempt proceeding

can be challenged only by an original proceeding. In re B.A.C., 144 S.W.3d 8, 11

(Tex. App.—Waco 2004, no pet.). Thus, because Okumu’s remaining portions of

his second and third issues and his entire fourth issue are an attempted appeal

of the trial court’s contempt proceedings, we have no jurisdiction to address

them. We therefore dismiss these issues.




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                                  IV. CONCLUSION

       Having overruled Okumu’s first issue and portions of his second and third

issues, and having dismissed his remaining issues for lack of jurisdiction, we

affirm the trial court’s order.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: June 23, 2011




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