Make Sure You Have Personal Jurisdiction In Texas Guardianship Proceedings

In Farr v. Barnes, the Texas Court of Appeals, Fourth District, San Antonio, considered a ruling granting Rule 91a motions to dismiss a declaratory relief action filed by a former ward seeking a declaration that orders entered in a previous temporary guardianship proceeding were void for lack of personal jurisdiction.  This case serves as a strong reminder of the importance of obtaining personal jurisdiction over a proposed ward before any hearing or entry of orders in a Texas guardianship proceeding.

The Facts of Farr v. Barnes

Farr and Barnes have an extended history of litigation.  During one lawsuit, Farr’s attorney became concerned about Farr’s competency.  Farr’s son, Thomas Lee Farr, II (“Farr II”) filed an application for temporary guardianship of Farr.  Farr II was appointed temporary guardian of Farr’s person and estate on August 24, 2016.  Farr was not personally served with citation until September 2, 2016.

Glenn McDonald was appointed to replace Farr II as temporary guardian in March 2017. Barnes eventually reached a settlement agreement with Farr, through McDonald, and the settlement agreement was approved by the court on October 9, 2018.  On the same day, the court ordered the temporary guardianship terminated.

Declaratory Judgment Action

In January 9, 2019, Barnes sued Farr for breach of the settlement agreement.  Barnes obtained a default judgment in March 2019.

Farr filed the instant lawsuit seeking a declaration that all of the orders in the guardianship proceeding were “void, null and of no force or effect” because Farr was not personally served in the Texas temporary guardianship proceedings, and therefore personal jurisdiction over him was never properly obtained.

Barnes and McDonald responded by filing motions to dismiss pursuant to Rule 91a, asserting that Farr’s action had no basis in law. Specifically, they argued that the declaratory relief sought by Farr was foreclosed by the settlement agreement, and that Farr ratified that agreement by personally signing and approving it. McDonald also asserted that Farr’s declaratory judgment action was an improper collateral attack on final orders of the court.

The trial court granted the motions to dismiss and awarded Barnes and McDonald attorney’s fees. Farr appealed.

What is The Rule 91a Standard For A Motion to Dismiss?

Rule 91a of the Texas Rules of Civil Procedure provides a mechanism whereby a party may move to dismiss a cause of action on the ground that it has no basis in law or fact.

A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

Whether this standard is satisfied is determined solely by reference to the pleading on the cause of action and any permissible pleading exhibits.

Here, Barnes and McDonald attached copies of guardianship documents, the settlement agreement, and court orders to their motions to dismiss, and asked the trial court to take judicial notice of the guardianship file.  On appeal, they similarly asked the appellate court to consider factual assertions and documents not contained within Farr’s pleading or exhibits.  The appellate court, in “keeping with the required standard for reviewing a Rule 91a dismissal,” declined to consider any evidence or assertions of fact not found within Farr’s pleading or pleading exhibits.

Personal Jurisdiction Must Be Obtained Before Entering Orders in Texas Guardianship Proceedings

Farr’s case boiled down to the assertion that the trial court did not obtain jurisdiction over him because he was not personally served with notice of the temporary guardianship proceedings before the trial court signed the order appointing Farr II as temporary guardian.

Section 1251.005 of the Texas Estates Code requires that, upon the filing of an application for temporary guardianship, the clerk shall issue notice to be served on the proposed ward.  That notice must describe “the date, time, place, purpose, and possible consequences of a hearing on the application.” Id. at § 1251.005(b)(2).

As a result, the notice must be served on the proposed ward before a hearing is held on an application for temporary guardianship and before a temporary guardian is appointed. In re Mask, 198 S.W.3d 231, 234 (Tex. App.—San Antonio 2006, orig. proceeding).

The Texas appeals court considered In re Mask, a prior decision of the court:

We first noted that an order or judgment is void if it is rendered by a court that lacks jurisdiction over either the parties or the subject matter of the lawsuit. Id. at 234; see In re Guardianship of B.A.G., 794 S.W.2d 510, 511 (Tex. App.—Corpus Christi 1990, no writ). We further noted that, “[f]or a trial court to have jurisdiction over a party, the party must be properly before the court in the pending controversy as authorized by procedural statutes and rules.” Id. In the context of a guardianship proceeding, a court may acquire personal jurisdiction by proper service on, or an appearance by, the respondent. Id. at 234. Any order or judgment entered before the court has acquired personal jurisdiction is void. Id.

In considering Farr’s argument, the Texas appeals court stated:

In the present case, Farr alleges that the trial court signed the Order appointing a temporary guardian before he was served with notice and, as a consequence, that Order is void. In light of Mask, we cannot conclude that this claim lacks any basis in law.

Can A Void Order Be Ratified Under Texas Law?

No, a void order cannot be given life by ratification, confirmation or waiver under Texas law.

Barnes and McDonald argued that Farr’s declaratory judgment action lacked merit because Farr ratified the matters he complained about — Farr personally appeared in the Texas guardianship proceeding, and signed the settlement agreement.  The Texas appeals court determined that this argument was dependent on evidence outside of Farr’s pleading and could not be considered, and even if it could, the argument failed on the merits:

Mask is again instructive. Real parties in interest in that case argued that any jurisdictional defect arising from the failure to comply with the statutory notice requirement was cured when Mask personally appeared at a subsequent hearing. 198 S.W.3d at 235. This court rejected that argument, explaining that “a void order has no force or effect” and “is not subject to ratification, confirmation, or waiver.” Id.see B.A.G., 794 S.W.2d at 511 (“A void judgment is one entirely null within itself, and which is not susceptible of ratification or confirmation, and its nullity cannot be waived.”).

Applying Mask to the present case, the failure to personally serve Farr with notice prior to signing the Order, if proved, establishes that the Order is void. Being a complete nullity, the Order could not later be given life by any ratification, confirmation, or waiver by Farr. See Mask, 198 S.W.3d at 235. And, if the Order creating the temporary guardianship is void, any further orders entered in that proceeding are likewise void. The temporary guardian appointed under the Order (originally and as extended) would have lacked any authority to act on Farr’s behalf, and Farr, being incapacitated, could not have effectively acted on his own behalf.

A Void Order Can Be Attacked By Declaratory Judgment In Texas

McDonald argued on appeal that Farr’s declaratory judgment action was an improper direct attack on the order.  The Texas appeals court reviewed the difference between a direct attack and a collateral attack and the methods available to challenge a void versus a voidable judgment or order.

A direct attack is the sole method of challenging a voidable judgment.   “A direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify or vacate a judgment and must be brought within a definite time period after the judgment’s rendition.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012).

Farr alleges that the trial court lacked personal jurisdiction over him because he was not served with notice of the proceedings prior to entry of the Order and, as a consequence, the Order is void, not voidable.

A void judgment may be collaterally attacked at any time.  “A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating [*12]  the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005).

The Texas appeals court determined that Farr’s declaratory judgment action was a permissible collateral attack, since it was not a direct attack, and because a party may collaterally attack a void order by declaratory judgment.

The Texas appeals court reversed and remanded the trial court’s order granting the Rule 91a motions to dismiss.  This case is a stark reminder to every Texas guardianship lawyer to make sure that personal jurisdiction is properly obtained in every Texas guardianship proceeding.  Here, even though Farr participated in the proceedings, the failure to properly obtain personal jurisdiction by achieving service prior to the hearing on temporary guardianship opened the door to more litigation and Farr’s lawsuit seeking a declaration that all of the orders in the guardianship proceeding were void.

 

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