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In re Guardianship of Simo

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 7, 2017


         On appeal from the 197th District Court of Willacy County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa



         Appellant Oscar Simo Jr. appeals from an order sustaining appellee George Simo's [1] third amended plea to the jurisdiction and dismissing Oscar Jr.'s suit with prejudice. In eight issues, which we categorize as four, Oscar Jr. complains that the trial court erred by: (1) overruling his special exceptions to George's plea, (2) sustaining George's plea and dismissing with prejudice all of Oscar Jr.'s claims, (3) finding George's plea to have been timely urged, and (4) concluding that the interest of justice permitted dismissal with prejudice. We affirm in part, reverse in part, and remand for further proceedings.

         I. Background[2]

         The underlying dispute springs from the guardianship of the person and estate of Narcy Simo. By way of family background, Narcy and Alberto Simo's marriage produced two sons, Oscar Simo (hereinafter "Oscar Sr.") and George. Oscar Jr. is Oscar Sr.'s son, and as far as we know, Oscar Sr. passed away before the dispute between Oscar Jr. and his uncle, George, developed. Before marrying Alberto, Narcy gave birth to Melba Nora Williams. See In the Estate of Simo, No. 13-16-0211-CV, 2017 WL 4837767 at *1 (Tex. App.-Corpus Christi, Oct. 26, 2017 no pet. h.) (mem. op.).

         The trial court denied George's initial plea to the jurisdiction. After a hearing, the trial court sustained George's second plea to the jurisdiction but permitted Oscar Jr. to amend his pleading. Oscar Jr.'s third amended petition, his live pleading at the time of dismissal, alleges that:

• in April 2008, a physician evaluated Alberto and Narcy, found them both to be incompetent to handle their financial affairs, and memorialized the findings in a letter;
• in July 2008, Alberto and Narcy deeded to George and George's wife, Elizabeth Simo, certain real property in Willacy County, Texas;
• in December 2008, Alberto and Narcy transferred all of their property into the George A. Simo Trust, a trust created by Alberto and Narcy that named George as its sole beneficiary and sole trustee;
• in March 2009, George applied for a guardianship of the persons and estates of both Alberto and Narcy and asked that he be appointed the permanent guardian. George attached the April 2008 letter from Alberto and Narcy's physician;
• in April 2009, George was appointed guardian of the persons and estates of both Alberto and Narcy;
• in March 2010, Oscar Jr. filed an "Affidavit of Facts" with the Willacy County Clerk's Office that, according to him "provided constructive notice to all persons and entities" that "the George A. Simo Trust and transfer of the entire estate of Albert Simo and Narcy Simo into the trust were void due to the incapacity of Albert Simo and Narcy Simo";
• on June 30, 2010, Alberto passed away; and
• in August 2010, George, as trustee, transferred certain real property to Maria Bartmess.[3]

         Based on these allegations, Oscar Jr. asserted three claims.

         First, Oscar Jr. sought a judgment declaring the following void: (a) the George A. Simo Trust, (b) the transfer of real property to Maria, and (c) the transfer of property to George. According to Oscar Jr., Alberto and Narcy lacked capacity to execute the trust and transfer documents. Oscar Jr. also sought a declaratory judgment "as to his rights as an heir to Albert Simo in Albert Simo's estate and that the above identified property more properly belongs to Oscar Simo, Jr., as an heir, at least in part."

         Second, Oscar Jr. asserted that George should be removed as Narcy's guardian on the grounds that he (a) failed to file an inventory; (b) failed to properly provide notice to creditors; (c) failed to file an annual accounting; (d) failed to file an annual report; (e) "misapplied and embezzled the property committed to his care"; (f) "is guilty of gross misconduct and mismanagement in the performance of his duties as guardian"; and (g) "is ineligible for appointment as guardian under Texas Probate Code § 681 in that he has a claim adverse to the ward, the ward's real and personal property, specifically that he is the beneficiary of a trust created by the proposed wards when they both were incapacitated and incapable of creating said trust."

         Third, Oscar Jr. alleged that George had "established a fiduciary relationship with his parents" before the guardianship proceedings and that fiduciary relationship extended into the guardianship proceedings. Oscar Jr. further alleged that he is "an heir of the Estate of Albert Simo, " and as such, "the breach of fiduciary duty is [a] claim squarely in the estate of Albert Simo and more properly belong[ing] to [Oscar Jr.], at least in part."

         After Oscar Jr. filed his third amended petition, George filed a third plea to the jurisdiction. Generally, George's third plea to the jurisdiction asserted that Oscar Jr.'s live pleading: (1) had "not demonstrated any injury to himself for which [the trial court had] jurisdiction to redress"; (2) did not establish that he was an "interested person" as that term is ...

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