Probate, trust, guardianship and inheritance litigation
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Texas Supreme Court: Technical Defect In Service On Ward Does Not Deprive Probate Court Of Personal Jurisdiction In Guardianship Action

In In re the Guardianship of Fairley, a March 4, 2022 opinion, the Texas Supreme Court held that a technical defect in personal service on a ward does not deprive the probate court of subject-matter jurisdiction or personal jurisdiction over the ward where the ward is personally served and participates in the proceedings through counsel without objection.

The Facts Of In Re Guardianship of Fairley

This guardianship case has a tortured and lengthy history in the Texas courts, which is summarized at length in the opinion.

In sum, after Juliette attempted and failed to establish guardianships over her father, James Fairley, she took him from San Antonio to an assisted living facility in New York, where she lived.  Mauricette, James’ wife, then requested that a Bexar County probate court appoint her as James’s temporary guardian under Estates Code Section 1251.001, alleging that Juliette had unlawfully removed James, taken money from him, and defrauded him.

James was personally served with this temporary-guardianship application in New York in November 2014. According to an Affidavit of Service signed by Sara M. Clark, she served James with the application and citation at a New York residence “by personally delivering and leaving the same with JAMES E. FAIRLEY.” The affidavit describes James’s physical appearance and location within the residence where he was served. In her affidavit, Clark states that she is over the age of 18 and is “not a party to this action.”

Three days after Mauricette filed her temporary-guardianship application in Texas, Juliette filed a petition in New York state court asking that she be appointed James’s guardian. The New York court appointed Mauricette and the court evaluator “special temporary coguardians” of James for the limited purpose of returning James to Texas so the Bexar County probate court could resolve any further dispute over the guardianship.

Back in Texas, on December 8, 2014, Mauricette filed (in the same probate court and under the same cause number as her application for temporary guardianship) an application seeking appointment as James’s permanent guardian.

Shortly after Mauricette filed her application for permanent guardianship, the probate court held a hearing on Mauricette’s application for temporary guardianship. James was represented by a court-appointed attorney ad litem, who had filed an answer on James’s behalf in this proceeding and had served as James’s attorney ad litem during the 2012 proceedings in which Juliette sought to be appointed as James’s guardian. Following an evidentiary hearing, the probate court appointed Mauricette as James’s temporary guardian pending the resolution of Juliette’s contest to the application for a permanent guardianship.

One month later, James was personally served with the application for permanent guardianship at the San Antonio assisted living facility to which he had returned. The return of citation shows that James was personally served with the application and citation by a Texas licensed private process server.

Mauricette Is Appointed As Permanent Guardian

Mauricette served as James’s temporary guardian under the probate court’s order for most of 2015. Then, following a November 2015 hearing, the probate court appointed Mauricette as James’s permanent guardian. The probate court’s order notes that James “appeared by and through his court appointed attorney ad litem.”

Juliette Challenges The Appointment Through Appeal and Mandamus

After a flurry of proceedings, appeals, and the initiation of a wrongful death lawsuit by Juliette, the issue of jurisdiction ended up before the Texas Supreme Court.  Juliette asked the Texas Supreme Court to void all orders entered in the guardianship proceeding because the proposed ward, her now-deceased father (read: Does a Guardianship In Texas End When the Ward Dies?), was personally served by a private process server.  Juliette claims personal service on her father by a private process server was insufficient to vest jurisdiction in the probate court because, she asserts, Chapter 1051 of the Estates Code requires a proposed ward in Texas to be personally served by a sheriff, constable, or other elected officeholder.

Texas Subject-Matter Jurisdiction

The Texas Supreme Court began by reviewing subject-matter jurisdiction:

Subject-matter jurisdiction refers to a court’s statutory or constitutional power to adjudicate a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). The subject matter jurisdiction of Texas courts derives solely from the Texas Constitution and state statutes. In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 459–60 (Tex. 2011). Because subject-matter jurisdiction cannot be conferred on a court by consent or waiver, a judgment is never considered final if the court that issued it lacked subject-matter jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Partly out of a desire to “reduce the vulnerability of final judgments to attack,” id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e (AM. L. INST. 1982)), we are reluctant to conclude that a statutory requirement affects a court’s subject-matter jurisdiction absent clear legislative intent to that effect. City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009).

The Texas Supreme Court noted that courts lack subject-matter jurisdiction to decide a moot controversy.

Personal Jurisdiction In Texas

The Texas Supreme Court next reviewed personal jurisdiction:

In contrast to subject-matter jurisdiction, personal jurisdiction concerns the court’s power to bind a particular person or party to a judgment. Luciano, 625 S.W.3d at 8. Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Establishing personal jurisdiction over a party requires “citation issued and served in a manner provided for by law.” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). However, unlike challenges to subject-matter jurisdiction, objections to personal jurisdiction generally can be waived, and a party may consent to the personal jurisdiction of a court. In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014).

Service In Texas Guardianship Proceedings

Chapter 1051 of the Texas Estates Code governs the issuance of notice and service of citation in guardianship proceedings.

Section 1051.103, titled “Service of Citation for Application for Guardianship,” identifies five categories of persons who must be personally served with the application and citation and states:

 (a) The sheriff or other officer shall personally serve citation to appear and answer an application for guardianship on: (1) a proposed ward who is 12 years of age or older . . . . Id. § 1051.103(a)(1).

Section 1051.051, titled “Personal Service,” addresses the manner in which personal service of citation or notice is effected in a variety of different circumstances.

It is undisputed that Section 1051.103(a)(1) required personal service of citation for an application for guardianship on James because he was a proposed ward older than twelve. It is also undisputed that James was personally served with both the application for temporary guardianship and the application for permanent guardianship. However, the parties part ways on the question of who was required to serve the citation and application.

Who Must Serve the Citation In Texas Guardianship Proceedings?

Section 1051.103(a) states that “[t]he sheriff or other officer” shall personally serve citation of an application for guardianship on those for whom personal service is required, including a proposed ward who is twelve or older. Section 1051.103(a) identifies those individuals who must receive personal service of an application for guardianship.

Section 1051.051 specifies who may serve when personal service is required and how service must be effected.

The Texas Supreme Court determined that Section 1051.051 was the controlling statute here:

Section 1051.051 sets forth three different groups of persons who may serve, depending on whether the person to be served is represented by counsel and where the person is located. Under subsection (a), if the person to be served has an attorney of record in the proceeding, the citation must be served on that attorney. TEX. EST. CODE § 1051.051(a). Section 1051.051(a) then refers to Section 1051.055 for the method of service on an attorney. Id. (“Notwithstanding the requirement of personal service, service may be made on that attorney by any method specified by Section 1051.055 for service on an attorney of record.”). Section 1051.055(c) provides that a citation may be served on an attorney by (1) another party, (2) another party’s attorney, (3) a sheriff or constable, or (4) any person competent to testify. Id. § 1051.055(c). Subsection (b) applies if the person to be served does not have an attorney of record or if service on the attorney is unsuccessful. Id. § 1051.051(b). In that case, the method of service is determined by the location of the person who must be served. If that person is in Texas, subsection (b)(1) provides that “the sheriff or constable shall serve the citation” by delivering a copy in person. Id. § 1051.051(b)(1). If the person to be served is either absent from or not a resident of Texas, however, subsection (b)(2) provides that citation may be served by “a disinterested person competent to make an oath that the citation . . . was served.” Id. § 1051.051(b)(2). Nothing in the text of Section 1051.103(a) suggests that the reference to service by a sheriff or “other officer” (an otherwise undefined term) was itself intended to limit those who could serve citation for guardianship applications. We instead read “other officer” as a reference to those persons who are authorized to serve citation elsewhere in the Estates Code. As noted above, depending on the circumstances, Section 1051.051 expressly allows for service of citation to be performed by a sheriff or constable, a disinterested person competent to make an oath, another party, another party’s attorney, or any person competent to testify. Accordingly, we conclude that, for those persons entitled to personal service of an application for guardianship under Section 1051.103(a), the method of service (including who must serve the application and citation) must comply with Section 1051.051.

In this case, the service for application of temporary guardianship in New York was personally served with the application and citation in New York by a private process server.  Because James was absent from Texas, Section 1051.051(b)(2) authorizes personal service by “a disinterested person competent to make an oath that the citation . . . was served.” TEX. EST. CODE § 1051.051(b)(2).  Service was thus effective on James for the application of temporary guardianship under Texas Law.

James was personally served by a private process server at the assisted-living facility in San Antonio with the application for permanent guardianship, and, because he was served in Texas, Section 1051.051(b)(1) applied.  Under that provision, personal service must be by “sheriff or constable”—a private process server is insufficient. The Texas Supreme Court determined that service of this application thus failed to satisfy Section 1051.051(b)(1)’s technical requirements.

Does a Technical Defect In Service Deprive the Probate Court Of Personal Jurisdiction Over the Ward Or Void Its Orders?

No, a technical defect in service does not deprive the Texas probate court of personal jurisdiction in a guardianship proceeding where consent was given to any such defect through appearance and action.  Here, Juliette asked that the Texas Supreme Court determine that technical defects in personal service on the now-deceased James voided all orders in the guardianship proceeding and deprived the probate court of jurisdiction to enter any orders, including the order transferring her wrongful-death suit to the probate court.

The Texas Supreme Court disagreed that a technical defect in service of the guardianship application voided the orders of the Texas probate court, stating:

We disagree because James never complained about these defects at a time at which they could have been corrected.  He instead entered a general appearance in the guardianship proceeding through his attorney ad litem and thereby consented to the personal jurisdiction of the probate court. Unlike with subject-matter jurisdiction, parties can consent to the court’s personal jurisdiction over them. In re Fisher, 433 S.W.3d at 532. One common way to consent to a court’s jurisdiction is by entering a general appearance in the proceeding. A party may enter an appearance in person or by attorney. TEX. R. CIV. P. 120. Such an appearance “shall have the same force and effect as if the citation had been duly issued and served as provided by law.” Id. Thus, a party’s appearance in a lawsuit cures any defect in the method of serving that party. Baker v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003).

We conclude that James made a general appearance in the guardianship proceeding through the affirmative actions of his attorney ad litem. Accordingly, he consented to the probate court’s personal jurisdiction over him, waiving any technical defects regarding service. See Baker, 111 S.W.3d at 161.9

To read about a case where it was determined that personal jurisdiction was not obtained over a ward, and orders were determined void as a result, read Make Sure You Have Personal Jurisdiction In Texas Guardianship Proceedings.


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