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In re Guardianship of Thrash

Court of Appeals of Texas, Fourth District, San Antonio

December 4, 2019


          From the Probate Court No. 1, Bexar County, Texas Trial Court No. 2017PC2912 Honorable Tom Rickhoff, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice



         Appellants Laura and Brittany Martinez appeal the probate court's order finding Charles Inness Thrash incapacitated and appointing permanent guardians over his person and estate. They raise seven issues challenging the legal and factual sufficiency of that order and request an immediate stay of the underlying proceedings pending final resolution of this appeal. We dismiss this appeal as to Brittany for want of jurisdiction, affirm the probate court's order, and deny appellants' request for a stay as moot.


         Thrash is a millionaire and owner of a successful automotive repair shop. He started dating Laura around 2009, and by 2012, she moved into the apartment above his shop with him. Over time, friends and family members grew concerned that Laura was isolating Thrash from them and spending large amounts of his money. In 2016, Thrash and Laura-as well as two of Laura's adult children, Jose and Michelle-moved into a home Thrash bought for approximately $750, 000 in cash. According to several long-time friends, Thrash's purchase of the home was highly unusual because Thrash was known as a fiscally conservative person. They grew suspicious of Laura, who did not allow Thrash to have his own phone, forcing all social and business calls to go to her cell phone.

         In 2017, a guardianship specialist for the Texas Health and Human Services Commission ("the HHSC") initiated guardianship proceedings after receiving an anonymous report that Laura was mishandling Thrash's assets. The application for appointment of temporary and permanent guardian alleged Thrash, who was seventy-nine years old at the time, suffered from Alzheimer's disease, was diabetic, and needed daily insulin. The application further alleged that under Laura's influence, Thrash recently changed his will to list Laura and members of her family as beneficiaries, executed a statutory durable power of attorney in Laura's favor, and revised his business plan to name Laura as the successor-owner of his shop.

         The application was supported by a report from Dr. Michael Garcia, a neuropsychologist, who opined Thrash showed signs of degenerative dementia and was unable to handle his personal and financial affairs without assistance. Also attached were affidavits from the guardianship specialist who initiated the proceedings and an Adult Protective Services (APS) supervisor who investigated the anonymous report. In her affidavit, the guardianship specialist testified she spoke with members of Thrash's family and some of his long-time friends, who reported Laura kept Thrash away from them and prevented them from having one-on-one conversations with him. She also indicated Laura kept a "black list" of individuals she did not allow Thrash to interact with, including business associates Thrash had worked with and his long-time attorney, Henry Christopher. Additionally, the APS supervisor testified Frost Bank branch employees saw Laura coaching Thrash at the bank numerous times.

         At the temporary guardianship hearing, the probate court, the Honorable Tom Rickhoff presiding, reviewed the affidavits, the court investigator's report, and Dr. Garcia's medical report. The court investigator reported that Thrash had diabetes, Parkinson's disease, hypertension, and Alzheimer's disease-all of which required daily medication that Laura administered. The investigator also reported that Thrash's spending habits had changed significantly since his relationship with Laura began. A review of his bank records showed that he spent large sums of money in 2016 and that he transferred a great deal of money from Frost Bank-where he had banked for more than forty years-to Bank of America.

         The investigator also reported that Laura told her she had been in a romantic relationship with Thrash for eight years and that she did not mishandle his assets. Laura told her Thrash made mortgage payments on the home she owned when they started dating and she planned to pay him back when she sold her home. Laura also told the investigator that Thrash had opened an account at Bank of America because friends told them Frost Bank was not a good bank. When asked why Thrash did not have a cell phone, Laura indicated Thrash constantly lost it.

         The investigator also reported she met privately with Thrash, who wanted to know who started the guardianship. Thrash told her that he could handle his own money and did not need a guardian. He stated he put Laura on his Bank of America account and wanted her to handle all the bills. When asked about the purchase of the new home, he indicated the home cost $230, 000, and did not believe it was approximately $750, 000. However, later that day, he called to say he had made a mistake about the price of the home. Thrash told the investigator he lent Laura $50, 000, which she would pay back after she sold her home. Thrash also indicated he did not know how much money Laura was spending.

         In his medical report, Dr. Garcia noted Thrash's medical history included diabetes, Parkinson's disease, and hypertension. The report indicated that Dr. Garcia conducted a clinical interview of Thrash and that at Thrash's request, Laura was present. During the interview, Dr. Garcia asked Thrash what tasks he could perform, and he answered he could complete daily living activities without assistance but relied on Laura for instrumental tasks like cooking, cleaning, shopping, finances, and outside work. Dr. Garcia reported that Thrash scored "moderately to severely impaired" on the dementia rating scale test, his verbal reasoning abilities were "borderline," and his perceptual-organizational abilities were "mildly impaired." Dr. Garcia opined that Thrash understood most task directions with repetition but was unable to comprehend complex tasks without assistance. Based on the clinical interview and dementia rating test, Dr. Garcia concluded Thrash met the criteria for dementia. He noted that Thrash exhibited "a degenerative dementia of the Alzheimer's type" and his neurocognitive capacities warranted legal intervention.

         The probate court also heard testimony from Sandy Sullivan, the senior vice president in charge of fraud management for Frost Bank. She testified employees at Thrash's Frost Bank branch location brought his accounts to her attention after they noticed some unusual transactions. She reviewed the account activity and noted that beginning in 2016, Thrash started using his money market account to pay business expenses-expenses previously paid with his business account. She stated his money market account drastically depleted, shrinking from more than $300, 000 to approximately $107, 000 in three months. It was unclear whether Thrash was aware of how Laura was managing that account because Laura was filling out all of his bank paperwork. Sullivan testified that Laura had also presented the bank with a power of attorney asking to be added to Thrash's accounts, but the bank refused to honor it because Thrash had previously told branch employees he did not want Laura added to any of his accounts. Sullivan also testified that by 2017, Frost Bank stopped paying submitted invoices.

         Finally, the probate court heard from Ben Wallis, Thrash's ad litem, who had recently met with Thrash. Wallis reported that during this meeting, Thrash was "very aware and conscientious" and actively participated in the conversation. Wallis told the court that Thrash would consent to a temporary guardianship so someone could review the matter. The court ultimately found there was substantial evidence that Thrash lacked capacity and appointed attorney Tom Bassler the temporary guardian of Thrash's person and estate.

         Over the next year, Bassler provided the probate court with updates regarding Thrash's health and estate. The probate court also heard testimony from Thrash, who indicated he wanted to live with Laura and did not need anyone intruding on his life. By November 2, 2017, Tonya Barina, Thrash's great-niece, filed an application to be appointed permanent guardian of Thrash's person and estate. Laura filed a response, arguing a permanent guardianship was unnecessary because a less restrictive means-the power of attorney-was available. Laura asked the court to appoint her guardian if it determined such appointment was necessary.

         In May and July of 2018, the probate court held hearings on Barina's application and heard testimony from attorney Robert Augsburger-who prepared Thrash's recent power of attorney and will-Laura, Thrash, Bassler, Barina, and some of Thrash's family members. The probate court also had before it the court investigator's report, two medical reports, transcripts from the temporary guardianship and status hearings, and the affidavit from the guardianship specialist.

         On November 15, 2018, the probate court signed an order appointing Laura guardian of Thrash's person and Barina guardian of Thrash's estate. The probate court also awarded attorney's fees to be paid from Thrash's estate to Thrash's attorney ad litem, Barina's attorney, and Laura's attorney.

         Barina and Laura filed competing motions for new trial, and attorney Philip Ross, purportedly retained by Thrash, filed a response arguing the permanent guardianships were unnecessary, counter-productive, and contrary to Thrash's best interest. On behalf of Thrash and Laura, Ross also filed a response supporting Laura's motion for new trial. On January 29, 2019, the probate court, the Honorable Oscar Kazen presiding, [1] held a hearing on the motions for new trial. At the hearing, attorney Enacio Barretto appeared on behalf of Laura, and Ross purported to appear on behalf of Thrash. Because Thrash had already been found to lack capacity to contract, the probate court treated Ross as Barretto's co-counsel. On January 29, 2019, the probate court signed two orders: one denying Laura's motion for new trial and another granting Barina's motion for new trial and appointing Barina guardian of Thrash's estate and Mary C. Werner guardian of Thrash's person.

         The next month, Laura and her adult daughter Brittany began filing pleadings with the probate court as "persons interested in [Thrash]," seeking a temporary injunction to preserve the status quo and to remove Barina and Werner as Thrash's guardians. These filings were Brittany's first appearance in this case. On February 15, 2019, Laura and Brittany filed this appeal.



         Before addressing the appellants' sufficiency arguments, we must determine whether Brittany has standing to appeal. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (considering jurisdictional matter of standing before merits of case). Barina argues Brittany lacks appellate standing because she did not participate in the underlying proceedings until after the challenged order was signed, and never filed a motion to intervene as an interested person under section 1055.003 of the Texas Estates Code ("the Code"). Appellants contend, however, that Brittany has standing to appeal because she is a person interested in Thrash's welfare.

         Standard of Review and Applicable Law

         Standing is a component of subject-matter jurisdiction. State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015). It must exist at every stage of a legal proceeding, including appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Appellate standing is typically afforded "only to parties of record." Naylor, 466 S.W.3d at 787 (internal quotations omitted). We lack jurisdiction over an appeal filed by someone other than a party of record. Id. We resolve questions of standing and jurisdiction under a de novo review. Id.

         Sections 1055.001 and 1055.003 of the Code outline who may become a party to a guardianship proceeding. Section 1055.001 provides that any person has a right to commence a guardianship proceeding or appear and contest a guardianship proceeding unless that person has an adverse interest. Tex. Est. Code Ann. § 1055.001. Section 1055.003 further provides that "an interested person may intervene in a guardianship proceeding only by filing a timely motion to intervene that is served on the parties." Id. ยง 1055.003. The Code ...

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