in the Guardianship of L. A. Moon, an Incapacitated Person

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00128-CV ______________________________ IN THE GUARDIANSHIP OF L. A. MOON, AN INCAPACITATED PERSON On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2002-222-G Before Morriss, C.J., Carter and Cornelius,* JJ. Opinion by Justice Carter ___________________ *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment O P I N I O N Kenneth Moon originally filed an action to be appointed the guardian of L. A. Moon and for other relief. L. A. Moon counterclaimed alleging Kenneth had wrongfully converted rents from houses owned by L. A. Moon and had improperly received some of L. A. Moon's funds. L. A. Moon also requested injunctive relief, an accounting, and alleged certain bank accounts were solely owned by him even though Kenneth was shown as a co-owner by the bank. Ultimately, Jean Taylor was appointed as guardian of the person and estate of L. A. Moon. Taylor filed a motion to determine the ownership of the two bank accounts that were held in the names of L. A. Moon and Kenneth Moon. Kenneth then filed a cross-claim against Taylor seeking a declaratory judgment regarding the ownership of the two bank accounts. A jury trial was conducted regarding the ownership of the two accounts, and the jury found that all funds were contributed to the bank accounts by L. A. Moon. The trial court entered a judgment finding both accounts were owned by L. A. Moon and directing the bank to tender the funds to L. A. Moon's guardian. On appeal, Kenneth complains (in his sole point of error) that the trial court did not decide all of the issues before it, and he also complains because the trial court assessed costs against him. We initially point out that this point of error, which addresses more than one specific ground of error, is multifarious. Bell v. Tex. Dep't of Crim. Justice--Institutional Div., 962 S.W.2d 156, 157 n.1 (Tex. App.--Houston [14th Dist.] 1998, pet. denied); City of San Antonio v. Rodriguez, 856 S.W.2d 552, 555 n.2 (Tex. App.--San Antonio 1993, writ denied). When a court concludes that a point of error is multifarious, it may refuse to review it, or it may consider the point of error if it can determine with reasonable certainty the error about which the complaint is made. Bell, 962 S.W.2d at 157 n.1. In this instance, so far as we can fairly do so, we choose to address the issues raised. I. Finality of the Order Kenneth and Taylor take diametrically different positions about the procedural posture of this case. Kenneth argues that not only is the judgment final, but that a number of other claims (unspecified by Kenneth) are also therefore final. Taylor argues that the judgment is interlocutory and not yet ripe for appeal because the trial court intended to have separate trials for some causes and announced its intention, but failed to enter a separate trial order. As a general rule, a party may appeal only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This Court has jurisdiction over appeals from final decisions of trial courts and from interlocutory orders as provided by statute. Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2006). This judgment was on a jury verdict. A judgment rendered after a conventional trial on the merits that is not intrinsically interlocutory in nature, where no order for severance has been entered, will be presumed to dispose of all parties and all issues. N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893 (Tex. 1966); Archer Daniels Midland Co. v. Bohall, 114 S.W.3d 42, 45 (Tex. App.--Eastland 2003, no pet.). The Texas Supreme Court recently revisited these concepts in a pair of opinions. In John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001), and Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003), the court reaffirmed the finality presumption for judgments rendered after a full trial on the merits, but not mentioning particular parties. In John, the court specifically found that there was nothing to indicate the trial court did not intend the judgment to finally dispose of the entire case. John, 58 S.W.3d at 740. The court discussed several factors that demonstrated the trial court intended to dispose of the entire case, including the failure of any party to move for separate trials, proceeding to trial against certain defendants only, and failing to move for an agreed judgment or a dismissal of his claims against the other defendants. In Moritz, as in John, the court recognized that there was nothing to indicate the trial court did not intend to finally dispose of the entire case. The party did not request, and the trial court did not enter, any orders for a separate trial against a remaining party, did not submit the other party's liability to the jury, and did not object to the charge submitted. Therefore, the court concluded, the finality presumption was "entirely appropriate" and the judgment was final. Moritz, 121 S.W.3d at 719. In this case, the trial court did not mean to fully dispose of the entire case. A motion was filed by Taylor to conduct a separate trial of the issue of the ownership of the two bank accounts from other issues in the case, such as conversion and accounting. Alternatively, Taylor requested the causes of action be severed. The trial court stated on the record that it was granting that motion and limiting the trial to the specific issue of the ownership of particular bank accounts--and that was the fashion in which the trial went forward. A formal order for separate trials was prepared and filed, but was never signed. Further, the trial court's judgment, entered after the jury's verdict, concluded with the sentence, "All relief not expressly granted on these issues herein is DENIED." The words "on these issues" were handwritten into the otherwise typewritten judgment. Based on the fact that a motion for a separate trial or severance on the ownership of the bank accounts was filed, the trial court specifically stated in open court that the jury trial was limited to those issues, a form was provided (but not signed) to authorize separate trials, and the language in the judgment limiting relief to "these issues," the record clearly demonstrates that the trial court did not intend for this judgment to finally dispose of all issues in the case. Therefore, we cannot say, as in John and Moritz, that it is "entirely appropriate" to find that all issues were presumptively disposed of by the judgment following the jury's verdict. Thus, we necessarily conclude that the judgment rendered following the jury trial disposed only of the matters decided by the jury and that the judgment entered was, at that point in time, interlocutory. We also recognize that some unique rules regarding judgment finality apply to matters governed by the Texas Probate Code. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). However, the application of those rules will not be analyzed because another feature of this case leads us to conclude that the order is final and appealable. Specifically, in this instance, the ward has now died and the guardianship has been closed. When a ward dies, the probate court loses jurisdiction of the guardianship matter, except for the filing of the final accounting and closing of the guardianship--which has now happened, and the guardianship has been closed. See Tex. Prob. Code Ann. § 745(a)(2) (Vernon Supp. 2006) (guardianship of incapacitated ward is settled and closed when ward dies); Edwards v. Pena, 38 S.W.3d 191, 195 (Tex. App.--Corpus Christi 2001, no pet.); Carroll v. Carroll, 893 S.W.2d 62, 68 (Tex. App.--Corpus Christi 1994, no writ). In Easterline v. Bean, the Texas Supreme Court declared "it has long been the public policy of this state that, when a ward dies, the probate court loses jurisdiction of the guardianship matter, save and except that the guardianship shall be immediately settled and closed, and the guardian discharged." In re Estate of Glass, 961 S.W.2d 461, 462 (Tex. App.--Houston [1st Dist.] 1997, writ denied) (quoting Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 428 (1932)). As a result, the guardianship under which this lawsuit was pursued has terminated, and no further action can be taken in that proceeding. (1) The trial court ruled on only one set of issues--and cannot now, in the guardianship proceeding, rule on any others. The trial court stated its intention to try the remaining issues separately, for convenience and clarity's sake. Before that could happen, an outside circumstance terminated the authority of the trial court to enter any further ruling other than terminating the guardianship. (2) We find this to have the same effect (for purposes of finality) as would an order severing the causes. Under these facts, we conclude that the judgment is final and appealable, and became so on the date the trial court terminated the guardianship. Accordingly, the appeal is properly before us. II. The Merits Kenneth's first argument is that the "Trial Court erred by excluding some claims and issues presented in the pleadings from the judgment." The brief does not provide any further specificity as to the nature of those claims and issues. It does not state where in a voluminous record any such claims might be found, and it does not provide any specific briefing on that matter at all. The only discussion provided is in the form of a lengthy quotation apparently taken from Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992), that discusses res judicata--followed in Kenneth's brief by this request: "Therefore the judgment should be reformed to include all issues and claims between the parties that were raised or could have been raised in the litigation." Even if the brief adequately described the nature of any reformation sought, or the issues and claims complained of, Barr does not stand for, or discuss, the suggestion that we should reform the judgment. The issue is inadequately argued, and the brief does not refer to the record in any form to support what we presume is the argument being raised. Further, the sole authority cited does not support the conclusion Kenneth urges. (3) We find no basis for reforming the judgment. Kenneth then argues, [t]he trial court also erred by assessing court costs against Kenneth Moon. The cost of a guardianship proceeding "shall be paid out of the guardianship estate, or, if the estate is insufficient to pay for the cost of the proceeding, the cost of the proceeding shall be paid out of the county treasury . . . . " Tex. Prob. Code § 669(a). There is no additional briefing, no additional argument, and no further explanation of the nature of the complaint. We presume Kenneth is complaining about the September 14, 2005, judgment. We point out that the Texas Rules of Appellate Procedure require citations to the record--which are necessary for this Court to be able to determine what documents the appellant is complaining about, and also to be able to specifically identify the nature of the complaint about those documents. There is no citation to the record contained within this brief. A copy of a judgment is attached to Kenneth's brief, along with several other documents, and we will assume that this judgment is the one complained of. That document contains a single line stating: "3. Costs in this suit are to be borne by the party incurring same." Handwritten above the struck portion is: "Kenneth Moon (JAII)." The cited statute is limited to the proceeding "in a guardianship matter." The few cases discussing this section all involve disputes over a guardianship or ad litem fees for protecting a ward or proposed ward, and also note that reimbursement by the estate depends on whether a contestant to a guardianship prevailed in a claim against a guardian. See Overman v. Baker, 26 S.W.3d 506, 512-13 (Tex. App.--Tyler 2000, no pet.); Henderson v. Viesca, 922 S.W.2d 553, 560-61 (Tex. App.--San Antonio 1996, writ denied). This is a separate claim, which could have been brought in an entirely separate lawsuit and thereby prevented the procedural difficulties discussed earlier. This dispute has nothing to do with a determination either about whether guardianship should be granted, denied, or whether the guardian of the ward had acted in some improper manner. The mere fact that it was filed in a guardianship proceeding does not make it such. The sole purpose of the judgment, as shown on the face of the judgment, was to order Kenneth Moon to tender funds to L. A. Moon's guardian. Kenneth lost. The general guardianship costs statute, on its face, does not apply to this proceeding; even if it did, the caselaw shows that, as the loser in the suit, Kenneth would remain potentially liable for costs. There is no citation to, or reference to any evidence presented concerning this issue. Kenneth has not shown us that the trial court erred in assessing costs as it did. Further, we recognize that the general statute states that a losing party in a lawsuit is subject to imposition of costs. Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex. 2003). "The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided." Tex. R. Civ. P. 131. If a court awards costs in a manner inconsistent with Rule 131, it must state good cause for doing so on the record. Tex. R. Civ. P. 141. The trial court's allocation of costs is reviewed under an abuse of discretion standard. Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985). Neither error nor an abuse of discretion, either under the Texas Probate Code or other authority, has been shown by the briefing presented to this Court. We affirm the judgment. Jack Carter Justice Date Submitted: December 5, 2006 Date Decided: February 6, 2007 1. This scenario highlights the problem that can be caused by pursuing--inside the guardianship proceeding--an action that is properly a lawsuit separate and apart from the guardianship proceeding and the management of the ward's estate. The ward dies, the proceeding ends, and all parties are placed in a legal limbo of their own construction. 2. This also means that we could not with any effect remand the proceeding to the guardianship court for further proceedings--the proceeding no longer exists, and the court has no further jurisdiction over the now nonexistent guardianship. 3. Appellate courts have no duty to make an independent search of the reporter's record to find support for an appellant's contentions. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994); Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 201 (1955). It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991). We will not do the job of the advocate. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of Tex. & Jurisdiction v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). of evidence depending on the nature of the item. Articles that are easily identifiable and are substantially unchanged normally do not require the introduction of a chain of custody. See, e.g., Outland v. State, 810 S.W.2d 474, 475 (Tex. App.—Fort Worth 1991, pet. ref'd) (pistol seized from defendant's automobile and identified by officers together with no evidence of tampering was sufficient even though pistol not tagged when seized). If the item has distinct or unique characteristics, a witness may authenticate it by testifying that he or she has previously seen the item at the relevant time and place and that the witness recognizes it by its distinctive characteristics. See Mendoza v. State, 69 S.W.3d 628, 631 (Tex. App.—Corpus Christi 2002, pet. ref'd). However, if the article of evidence has no distinctive features or is fungible, the item must be proven by showing a chain of custody, typically from the scene of the crime to the courtroom. Authentication of such an article may be accomplished by marking the item and identifying it at trial as the same, so long as there is no evidence of tampering or alteration. See Garcia v. State, 537 S.W.2d 930, 934 (Tex. Crim. App. 1976). The chain of custody is conclusively proven if the officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989) (citing Elliott v. State, 450 S.W.2d 863, 864 (Tex. Crim. App. 1970)). Generally, when the evidence sought to be admitted may be distinguished only via scientific testing, then a chain of custody must be demonstrated. Porter v. State, 969 S.W.2d 60, 66 (Tex. App.—Austin 1998, pet. ref'd) (urine specimen); Davis v. State, 831 S.W.2d 426, 442–43 (Tex. App.—Austin 1992, pet. ref'd) (blood specimen). Any gaps in the chain of custody go to the weight of the evidence, not admissibility; however, proof should be shown as to the beginning and end of the chain. Porter, 969 S.W.2d at 66; Davis, 831 S.W.2d at 443. The State maintains that the box has distinct or unique characteristics and, therefore, a chain of custody is unnecessary to prove authentication. Hartsfield emphasizes the evidence consists of a blood specimen, not just the box, and therefore the custody chain is required. But the evidence sought to be admitted here is not a vial of blood that could only be identified if it had been properly marked for identification when it was acquired and thereafter traced. Here, the item was a box that had an unusual characteristic—a marking that appeared to be blood spatter. Until that box was analyzed, it could not be determined that the marking on the box was in fact blood. This Court has considered an analogous situation in Jackson v. State, 968 S.W.2d 495 (Tex. App.—Texarkana 1998, no pet.). In Jackson, the defendant was charged with sexual assault. A search of his residence uncovered certain items, including blood-stained jeans. The jeans were identified by the defendant's wife, who had personal knowledge that Jackson was wearing them on the night of the assault. An expert testified that the blood on the jeans came from the victim. Even though the defendant objected to a proper chain of custody concerning the jeans and the blood, his wife's identification of the jeans was sufficient to show the jeans were what the State claimed. Id. at 500. Likewise, here identification of a box with distinct characteristics by a witness who saw it at the scene of the crime is sufficient authentication. We turn to the evidence presented on this issue. There are no photographs of the box at the restaurant, and at trial, the State conceded that it could not prove who removed the box from the restaurant. Officers used ten rolls of film to photograph the KFC, but only one of the rolls developed properly. None of the photographs showed the box at the KFC scene. The manager of KFC, Leann Killingsworth, testified that the box was the same kind of box that was used at the restaurant. Killingsworth also testified that the box was kept in the empty space underneath and to the right of the cash register. However, Elliott, who assisted in the investigation of the crime scene, testified that State's Exhibit 29 was the box from KFC. First, Elliott recognized State's Exhibit 29 as the type of box he saw at KFC in the place where Killingsworth testified it was kept. Then Elliott testified that the blood spatter on State's Exhibit 29 was in the same pattern as he remembered being on the box at KFC. Last, he testified there was no question in his mind State's Exhibit 29 was the same box that he saw at KFC on the night of September 24, 1983. In Jackson, the wife's personal knowledge that Jackson was wearing the jeans on the night of the assault sufficiently authenticated the pants to allow the admission of the results of DNA tests done on blood on the jeans. She had seen those jeans on Jackson that night. Id. at 500. Elliott saw this box at KFC that morning. Elliott's testimony is sufficient to prove the item is what it is claimed to be—the box, spattered with distinctive markings, found inside the KFC September 24, 1983. The trial court did not err in admitting the evidence. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: June 5, 2006 Date Decided: August 23, 2006 Publish