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Mersch v. Texas Department of Aging and Disability Services

Court of Appeals of Texas, First District

May 1, 2018

CAROL MERSCH, Appellant
v.
TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, AS GUARDIAN OF THE PERSON AND ESTATE OF JOHN STOUT, Appellee

          On Appeal from the 344th District Court Chambers County, Texas Trial Court Case No. CV-26248

          Panel consists of Justices Bland, Lloyd, and Caughey.

          MEMORANDUM OPINION

          JANE BLAND, JUSTICE

         Carol Mersch appeals the dismissal of her counterclaim for declaratory relief against the Texas Health and Human Services Commission (HHSC), as the guardian of John Stout. Because it is no longer John Stout's guardian and Stout is deceased, HHSC has moved to dismiss the appeal as moot. We grant the motion and dismiss the appeal.

         Background

         HHSC's predecessor, the Texas Department of Aging and Disability Services (DADS), was appointed to be the permanent guardian of the person and estate of John Stout.[1] The guardianship proceeding was styled In the Matter of the Guardianship of John Stout, cause number CV-25849 and was pending in the 344th Judicial District Court of Chambers County.

         During its guardianship, HHSC sued Mersch, seeking the return of property that it claimed belonged to Stout-in particular, certain Lunar Bibles and related memorabilia in Mersch's possession. During the 1960's, Stout headed the Apollo Prayer League, a group of Christian men involved in the aerospace industry in the NASA area of Houston. The Lunar Bibles are microfilmed Bibles that some member astronauts carried into space on Apollo lunar missions.

         The dispute with Mersch proceeded in a separate case from the guardianship, and was styled Texas Department of Aging and Disability Services, as Guardian of the Person and Estate of John Stout v. Carol Mersch and Heritage Auctions, Inc., under cause number CV-26248, and also was pending in the 344th Judicial District Court of Chambers County, Texas.[2]

         Mersch counterclaimed against HHSC "as guardian of the person and estate of John Stout." Mersch sought declarations that (1) the Lunar Bibles and related memorabilia were property of other entities, not Stout; and (2) she owned these entities and their property, including the Lunar Bibles and related memorabilia. Mersch requested declarations that she is the owner of (1) Aerospace Ministries, Apollo Prayer League, APL News Service, and The Association of Space Support Chaplains; and (2) all Aerospace Ministries and Apollo Prayer League property, including "Apollo 12 miniature bound Bibles, Apollo 13 and 14 microfilm Lunar Bibles, the Lunar Bible registry, supporting Lunar Bible documentation and certification."

         Mersch also sought a permanent injunction against HHSC, requiring HHSC to "deliver all Aerospace Ministries and Apollo Prayer League property to Carol Mersch, " and enjoining HHSC from "delivering any Aerospace Ministries and Apollo Prayer League property to any person or entity other than Carol Mersch." Mersch later nonsuited her claims seeking injunctive relief against HHSC, and she has not reasserted them.

         In the trial court, HHSC filed a plea to the jurisdiction, seeking dismissal of Mersch's counterclaims on the basis that (1) the counterclaims against HHSC were barred by sovereign immunity and (2) Mersch lacked standing because she sought declarations addressing the rights of third parties. The trial court granted the plea to the jurisdiction and dismissed Mersch's counterclaims with prejudice.

         Stout died on December 8, 2016. After his death, HHSC nonsuited with prejudice the claims that it had asserted against Mersch. With HHSC's claims nonsuited, and Mersch's counterclaims dismissed with prejudice, the trial court issued a final order on December 16, 2016, dismissing the entire cause with prejudice.

         On January 12, 2017, Mersch moved for new trial, requesting that the trial court reinstate her counterclaims. Mersch argued that, although HHSC would no longer be a party to the litigation once discharged as Stout's guardian, HHSC should be replaced by the administrator of Stout's probate estate, against whom her counterclaims could be asserted. On January 25, 2017, Mersch filed a motion for reconsideration and restatement of her counterclaims, further requesting that she be allowed to amend her pleadings to assert her counterclaims against Stout's estate. On February 16, 2017, the trial court denied Mersch's motion for new trial and her motion for reconsideration.

         On May 25, 2017, the guardianship court issued an order approving HHSC's account for final settlement of the estate. Pursuant to its order, HHSC delivered all property at issue in the case to the registry of the court. On May 25, 2017, the ...


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