Court of Appeals of Texas, Second District, Fort Worth
THE PROBATE COURT OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and MEIER, JJ.
MEMORANDUM OPINION 
MEIER JUSTICE .
issues, Appellant Chin Hua Wang (Grace) appeals the trial
court's order appointing a temporary guardian of the
estate of her late husband, Yung Lo "Eddie" Yang,
the trial court's order obligating her to pay 20% of the
attorney ad litem's fees, and the trial court's
supposed failure to enter findings of fact and conclusions of
law. We will dismiss in part and affirm in part.
was born in 1945. He has three adult children-Appellees
Michael Chung-Kai Yang, Lili Yang Callahan, and Emmy Yang
November 2015, Appellees filed an application for appointment
of a temporary and permanent guardian of Eddie's estate.
According to the application, Eddie was diagnosed with
non-Hodgkin lymphoma in September 2012 and underwent surgery
to remove a brain tumor. After the surgery, Eddie's
mental and physical health slowly declined, and by 2015, he
was completely nonverbal. Appellees sought appointment of a
third-party temporary and permanent guardian not only because
Eddie was totally incapacitated, unable to communicate, and
unable to care for himself, but also because his estate was
"at risk of imminent harm"-Grace, whom Eddie
married in January 2013, had allegedly transferred large sums
of money from Eddie's investment accounts to herself, had
taken loans against Eddie's life insurance, and had
changed beneficiary designations on Eddie's accounts.
served Grace with the application and notice of a hearing,
and the trial court appointed Derbha Jones as Eddie's
attorney ad litem. After a lengthy hearing on November 20,
2015, at which Grace appeared, represented by counsel, the
trial court appointed J. Kevin Young as temporary guardian of
Eddie's estate, signed a temporary restraining order
enjoining both sides from accessing or withdrawing any part
of Eddie's estate, and signed an order prohibiting any
assets contained in Eddie's Morgan Stanley account from
being disbursed. A clinical neuropsychologist later examined
Eddie and gave him a physical diagnosis of primary central
nervous system lymphoma and a mental diagnosis of major
neurocognitive disorder secondary to the lymphoma diagnosis.
died on January 24, 2016, approximately two months after the
trial court appointed his estate a temporary guardian.
Thereafter, Jones, Young, and Appellees filed applications
for attorney's fees; Young filed a final accounting and
an inventory, appraisement, and list of claims; and the trial
court terminated Jones's appointment as Eddie's
attorney ad litem. The trial court awarded Jones, Young, and
Appellees attorney's fees, ordering that all but 20% of
the fees awarded to Jones be paid from Eddie's estate. On
August 18, 2016, the trial court signed an order discharging
Young as temporary guardian of Eddie's estate and closing
the guardianship. Grace timely requested findings of fact and
conclusions of law, which the trial court signed and filed on
November 4, 2016.
first four issues implicate the trial court's decision to
appoint Eddie's estate a temporary guardian. She
complains that the application was missing certain
information, that a medical report was not on file, that
alternatives to guardianship existed, and that the trial
court improperly utilized an interpreter during the hearing
on the application, violating her due process rights.
Appellees respond that we lack jurisdiction to consider each
of Grace's first four issues challenging the order
appointing a temporary guardian, either because Grace's
notice of appeal was untimely or because the issues are moot.
We agree with Appellees.
estates code allows a party to "appeal from an order or
judgment appointing a guardian." Tex. Est. Code Ann.
§ 1152.001 (West 2014). A "guardian" is
defined to include a temporary guardian, including a guardian
of the estate of an incapacitated person. See id.
§ 1002.012(a)(3), (b)(1) (West 2014). At least one
intermediate appellate court has held that an order
appointing a temporary guardian is final and appealable, but
this court has previously indicated that such an order is
interlocutory and appealable. Compare In re
Cunningham, 454 S.W.3d 139, 144 (Tex. App.-Texarkana
2014, orig. proceeding) (reasoning that order appointing
temporary guardian is final), with In re Hart, No.
02-14-00260-CV, 2015 WL 2169130, at *1 (Tex. App.-Fort Worth
May 7, 2015, orig. proceeding) (mem. op.) (reasoning that
order appointing temporary guardian is appealable,
interlocutory order); see generally De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (discussing
exception to "one final judgment" rule and
observing that "determining whether an otherwise
interlocutory probate order is final enough to qualify for
appeal has proved difficult"). We need not take this
opportunity to reassess whether an order appointing a
temporary guardian is final or interlocutory because, either
way, Grace's first four issues suffer from fatal
trial court signed the order appointing Jones temporary
guardian of Eddie's estate on November 24, 2015. Grace
filed her notice of appeal just under ten months later, on
September 16, 2016. If the order appointing Jones temporary
guardian of Eddie's estate was final for purposes of
appeal, then Grace's notice of appeal was clearly
untimely because it was not filed within thirty days of
November 24, 2015. See Tex. R. App. P. 26.1; In
re Estate of Padilla, 103 S.W.3d 563, 566‒67 (Tex.
App.-San Antonio 2003, no pet.) (dismissing attempted appeal
from final, appealable probate order because notice of appeal
was untimely); Ashmore v. N. Dallas Bank & Tr.,
804 S.W.2d 156, 158‒59 (Tex. App.-Dallas 1990, no pet.)
order was instead interlocutory and appealable, not only did
Grace not timely pursue an interlocutory appeal of the
November 24, 2015 order appointing Jones temporary guardian
of Eddie's estate, see Tex. R. App. P. 26.1(b),
28.1(a), but she is precluded from alternatively challenging
the order in this appeal because the order is now moot-Eddie
died; the trial court approved a final accounting, discharged
Young, and closed the guardianship; and unlike Grace's
fifth issue, which challenges part of an award of
attorney's fees, none of Grace's first four issues
implicate any remaining controversy between the parties.
See Hernandez v. Ebrom, 289 S.W.3d 316, 321 (Tex.
2009) (presuming that legislature could not have intended to
allow party to appeal order denying motion to dismiss
inadequate expert report after full trial on underlying
health care liability claim); Isuani v. Manske-Sheffield
Radiology Grp., P.A., 802 S.W.2d 235, 236‒37 (Tex.
1991) (holding that final judgment rendered temporary
injunction moot); see also Zipp v. Wuemling, 218
S.W.3d 71, 73‒74 (Tex. 2007) (reasoning that death of
ward did not moot guardianship appeal because issues
involving who should wind up estate, fees, and costs remained
whether stemming from an untimely notice of appeal or from
mootness, the result is the same: We lack subject-matter
jurisdiction to consider Grace's first four issues.
See Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d
754, 759 (Tex. App.-Fort Worth 2010, pet. denied) ("The
mootness doctrine implicates subject-matter
jurisdiction."); In re K.M.Z., 178 S.W.3d 432,
433 (Tex. App.-Fort Worth 2005, no pet.) ("The timely
filing of a notice of appeal is jurisdictional in this court,
and absent a timely filed notice or extension request, we
must dismiss the appeal.").
fifth issue, Grace argues that the trial court abused its
discretion by ordering her to pay 20%, or $1, 274.20, of the
attorney's fees awarded to Jones, Eddie's attorney ad
litem. She contends that there is no evidence that she acted
in bad faith or without just cause in objecting to