Opinion issued September 28 , 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 20
- 00028
- CV

——————————— ROBERT H. GOODE JR. , Appella nt

V. STEPHANIE MCGUI RE , Appell e e
On Appeal from the Probate Court No . 2

Harris County, Te x as Trial Court Ca se No. 468981

MEMORANDUM OPINION This is an appeal from a contested guardianship matter. In this appeal, Rob ert H. Goode, Jr. ( “ Bob ” ) challenges several r elat ed orders c oncerning the guard i anship proceedings for his wife , Lockie Goode. T he probate court found that Lockie was totally incapacitated, and that Bob was unsuitable to serve as the guard ian of her2

person. The court appointed Kath leen M. Vossler as the p ermanent g u ardian of Lockie ’s person, and it created a management trust for L o cki e ’ s benefit. The court found tha t Stephanie McGu ire, Lockie ’ s half

- sister, acted in good faith a nd with just cause in filing an applica tion for appointment of a permanent gua rdian of Lo ckie ’s
person and for the cre ation of a mana gement trust . The court the refore award ed statutory attorney ’ s fees , costs , and expenses to be paid to McGuire ’ s attor neys from funds set aside for Lockie ’s benefit. On appeal, Bob raises fi v e issues. In his first issue, h e argues that the probate
court impro perly denied him a j ury trial

. In his second and third issues , he argues that the evidence did not support finding s that he was unsuitable to serve as the
gua rdi an of Lockie ’ s person or t he communit y administrator for her estate

. In the fourth issue , Bob argues that the evid e nce did not support a finding that M cGuire acted in good faith when she filed her application for guardian of Lockie ’s person and the creation of a management trust. I n the fifth issue, Bob argues that the court erred by limiting the scope of trial , which he contend s effectively prevented him from introduc ing relevant evidence.
W e affirm. Background Bob and Lockie , who have been married for more than 40 years , lived tog ether in a house in Spring , Texas

. In 2017, Lockie was approximately 70 years ol d, and3

B o b w as approximately 78 years old. Lockie was experiencing memory issues , and she was later diagnosed with Al zhe imer ’ s disease and dem entia

. Bob underwent scheduled bac k surgery i n October 2017 , leaving Lockie alone in their house with a car, food, and cas h

. B ob anticipated that his inpatient recovery would take about a week, and then he would ret urn home. B ut his recovery lasted much longer than a week , and aft er he left the ho spital, he continued his recupera tion at a senior living facility called Bellair e Se nior Lodges ( “ Bellaire Lodge ” ). Lockie moves out While Bob was in the hospital, Lockie sought help from friends , 1 who recognized that the house was unsafe for her

. T he house was hoarded, mold was present, and maggots were found in the kitchen

. Lockie ’ s co u sin, Gloria McCarty, said : “ There really are no words to describe what I saw.

. . . That e nvironment was safe for no one. ” Trac y Barney, a social worker who later assisted Lockie, also saw the house, and she sa id: “ It was in terrible condition. It was def initely a hoarder house. ” Lockie ’s friends help ed her move to a cond ominium that she and Bo b owned , but the friends soon discov ered that the condominium was also unsafe. Like the house, it was heavily cluttered, and it lacked air conditioning

. Lo ckie ’ s fr iends

1 The friends who helped L ockie were Debbie Silverman and Jo Ann Peek. Peek died before trial in this case, and Debbie Silverman did not testify.4

contacted Lockie ’s maternal half

- sister, Stephanie McGuire , who arranged for Lockie to spend a

bo u t a week with McCarty at her home in Centreville , Texas , before helping Lockie move to an apartment in Manvel, near Pearland. While she was in Cent r e vil le with McC arty , Lockie refused to take Bob ’s calls , s aying that she was finally out of t hat situati on and did not want to return. Lockie did not see Bob from the time she left the house in October 2017 until about April 2018. From October 2 017 until e a rly 2018, Bob had no contact with Lockie. In early 2018, both Lockie and Bob e xpressed so me interest in divorce . Lockie filed for divorce , and Bob later said he was grateful she filed for divorce at that time

. In early 2018, McGuire helped Lockie engage t he services of attorney Sarah Williams and the Elder Advisory Group, LLC

. Trac y Barney , a license d clinical social worker with the Elder Advisory Group, was assigned as Lockie ’ s geri atric

ca s e manager . Bar ney accompanied Lockie to an appoint ment with a ne u rol ogist , who determined that Lockie was experiencing mode rate to sev ere Alzh eimer ’ s symptoms. Bob and Lockie reunite At trial, Barney testi fied tha t one of her initial goals was to help reunite Bob and Lockie

. A t Lockie ’s request, Barney facilitated a p h one call between Bob and Lockie

. Late r McGuire drove Lockie to Bellaire Lodge to speak with Bob in person , and Barney met them there. In April 2018, Lockie spent the weekend with Bob at5

Bellaire Lo dge, decided to remain with him, and never returned to her apa rtment. After Locki e reunited with Bo b, her relatives

— including McC arty , McGuire , and Locki e ’ s adult son Guy Roberts

— were unable to contact her. At trial, Bob te sti fied that between mid

- 2018 and December 2019, Lockie had three new phones and new phone n umb ers. 2
M cGuire and Bob seek guardianship In July 2018, McGuire filed an applicati on seeking appointment o f a
perma nent guardian of Locki e ’ s person and estate or , alternatively, creation of a management trust in lie u of appointment of a guardian of the est ate. She asserted that Lockie was incapacitated due to moderate

- to

- severe “ demen tia of the Alzheimer ’ s Type , ” and a court

- or dered evaluation later showed that Lockie was completely incapacitated. Around the same time, McGuire also sought a ppointment of a g uardian of the person and estate for Bob, but h is eva l uation showed that he was not incapacitated. In December 2018, Bob filed an application seeking to be appointed permanent guardian of Lockie ’ s person and community administrator. The proba te cour t a p poi nted Karen Blomstrom to be the attorney ad litem for Lockie, and it appointed Kathleen Vossler to be the guard ian ad litem for Lockie.

2 In Spring 2019, Bob a nd Lockie mov ed into their con dominium together

.6

Pretrial hearing and the scope of trial Before trial, Bob d emanded a jury, bu t at the pr etrial hearing on December 2 , 20 19 , the pro bate judge told the parties that he did not see a need for a jury because both Bob and McGuire contended that Lockie needed a guardian. The probate judge said: “ [T]he only thing the jury shoul d hear are contested issues. . . . I don ’ t think i t ’ s in your client ’ s best interest for us to have a week trial when the issue of capacity is really not an issue. ” Vossler stated on the record that she believed a gu ardianship was in Lockie ’ s bes t interest. The court informed the parties that it viewed the question of wheth er McGuire ’s application was filed in good faith and for just cause was “more of a legal issue than a fact issue

. ” 3 The court also questione d: “[I]f you ’re both seekin g g uardianship, then how could there be not good faith an d for just ca u se? ” The court and McGuire ’s counsel both acknow ledged that Bob had statutory priority to serve

as the guardian of Lockie ’s person unless he was foun d disqualified or unsuitab le. 4 The court determined that the scope of trial would be limited to Bob ’s s u i ta bility to

3 See T EX
. E STATES C OD E § 1155.054 (authori zing a ward of atto rney ’s fees to attorney w ho represented party who filed application for guardianship; “ The court may not authorize attor ney ’ s fees under this se ction unless the court fin ds that the applicant acted in good faith and f or just cause in the filing and prosecu tio n of the application. ”) (emphasis added)

4 See T EX
. E STATES C O DE § 1104.102 ( Appointment Preferences).7

serve as Lockie ’s guardian

— as oppose d to including McGuire ’ s suitab ility to serve as guardian as well

—

because the statutory preference would app ly unless h e is dis qualified to serve. The probate court informed the parties that it would hold a b en ch trial on th e question of Bob ’ s qualification and suitability to serve as Lockie ’ s gu ardian

. 5 The court specifically told the partie s that they were not trying McGuire ’ s

case . At the pretrial hearing, n o party objected to the court trying the case t o the bench with a limited scope. The bench trial Trial was held on December 9

– 1 2 , 2019. A rep ort from Dr . Kunik, the court

appointed psych iatrist who evaluated Lockie in S eptember 20 18, was admitted into evidence. Dr. Kunik diagno sed Lockie with “ major n e u ro cognitive diso rder likely seconda ry to Alzheimer ’ s disease an d B12 defic ie ncy. ” He stated that imp rovement in her condition was not possible. He stated that Lockie had defici ts in short term memory, long term memory, immediate recall, problem solving , l ogi cal reasoning, grasping abstract aspects of her sit uation, interpreting id iomatic expressions or proverbs, and breaking down complex tasks into sim ple steps and carrying them out. He noted that Lockie ’s perio ds of impairment from those d eficits “ var y s u bst antially

5 See T EX
. E STATES C ODE § 1104.352 ( “ A person may not be app ointed guardian if the person is a person, institution, or corp or ation found by the court to be unsuit able. ” ) (emphasis added).8

in frequ ency, severity, or dura tion. ” Dr. Kunik determined that Lockie could manage basic activities of daily living

— such as bathing, dressing, and walkin g

— with assistance and services. He dete rmined that Lockie was not able to do the followin g:

• Ma ke comple x business, manageri al, and fin ancial decisions ;

• M anage a personal bank account ;

• S afely operate a motor vehicle ;

• V ote in a public election ;

• M ake decisions regarding marriage or divorce ;

• Determine [her] own residen ce ;

• Administer own medicatio ns on a daily basis ;

• A ttend to inst rumental ac tivities of daily living (e.g., shopping , cookin g, traveling, cle aning) ;

• C onsent to medical and dental treatment ; and

• C onsent to psychological and psychia tric treatment

. Dr. Kunik opined that Lockie was complet el y in capacitated , and he recommend ed that she not a tt end court hearing s because she would not be able to understand or par ticipate. He al so recom me nded that she have 16 to 24 hours of supervision daily. Lockie testified and admitted that she had some memo ry pro blems. She said sh e wanted to be with Bob, to rema in married to him, and for him to be her guardian. Lockie testified that she had friends , but she did not know where they are and had9

not seen them in a long time. She could not recall the names of f a mi l y m embe rs or

name any interests or hobbies

. Lock ie testified that she does not drive. She said th at McGuire had “d efin it ely not been helpful , ” and she did not wish to see McGuire. Bob te stified that he and Lockie had been married for almost 42 years

. H e
t est ified that Lockie had no s eparate property and that their community estate had a value of about $2 million. Bob s aid he had six small busines ses , and he maintained that he did not need a ssist ance with any personal paperwork b ecause he is very organiz ed

. He denied an y convictions for felonies , elder abuse, or crimes of moral turpitude. He testified that he had been found to have capacity by a p sy chiatrist, and he ha d completed the Texas Guardianship Training Class. He also testifi ed that he had been in

ju r ed an d exposed to Agent Or ange while servi ng in the military in the Vietnam War. As a result, he had undergone a tot al of seven back surgeries an d was consi dered 100% physically disabled by the Veter an ’ s Administration. He said, however, that he ha s “ mo st of [his] physical capacities. ” Bob initially testified that he agreed that Lockie is incapacitated. He asserted that he would f

ollow doctor s ’ rec ommendations if appointed guardian of Locki e ’ s person, but he expressed disagreement with many findings and r e com mendations

. Bob thought Lockie should attend hearings in the guardianship case ; believ ed L ockie could cook with supervision or while he was present in th e home; thought that Lockie could and should drive with supervision because he view ed it as good th e rap y10

for her. He denied that Lockie needed hel p with acti vities of daily living , such a s personal hygiene activities, and he said that it was sufficient for someone to be in the home in the event of an accident. Bob disagreed that Lockie would deteriora te

ove r time. Although he ha d contracte d with a home health care service, he said that he would not permit a sitter to come to his house while he is present , and he would not permit the care agency to take Lockie to doctors ’ appointments or help manage he r

m edi cation regim en. He al so said that it was unneces sary to hire someone to do housekeeping

. He testified that he does some household chores, and Lockie does la undry, washes dishes by hand, and sometimes cleans the bathrooms

. Bob said th at he and Lockie go sho pping, run errands, eat out, watch television, and visit neigh bors. He also testified about taking her to medical appointments. Bob discussed hi s plans for Lockie when he undergoes a necessary kne e replacement surgery in the fut ure. He intends to rel y o n a friend in Dallas and his sister , who might come from Nashville to help Lockie. In addition, the home health care agency could provide some care. Bob said that he had executed a power of attorney including i nstructions on how to ca re fo r Lockie if he s h oul d be hospitalized or unavailable in the future. He said that he would put the contact information for the home health care agency in Lo ckie ’ s phone so she could conta ct them in the event that he was un avail able.11

Bob denied being a hoarder , and he sa id tha t he and Lockie did not live in a hoarded house. When shown a photograph of a cluttered liv i ng area at the house , he said it depicted “ a lot of our belongings and furnitu re that someone took and jumbled all over the place to make it look like we live i n a junkyard. ” He agreed that the photos of the condominium showed a l iving space that was a work in progress because they had not de cided what to keep in th at hom e. He also testified that he planne d to hire contractors to clean and repair the house so t he y co uld sell it. Bob testified that he and Lockie had ei ght or ten active credit cards, not including the additional unsolicited credi t car ds tha t they received in the mail. He was show n pho tographs of dozens of credit cards found in his house. He said t h ey had all expired and he was keeping them to make a holida y g arl and. Bo b testified that he and Lockie had betwe en 10 and 1 5 s eparate savings, check ing , or other bank
accounts. He acknowledged t hat he and Lockie had an additional $25,000 in unclaimed pr op e rty that he had not collected. Bob also admitted that , for several years, he had fa iled to file tax r eturns, but he testified t hat he sent payments to the IRS and had a credit on his a ccount. He also failed to deposit thousa nds of dollars in checks for so long that the checks expired. Prior to his surgery, Bob failed to make many credit card and u til ity payments and property taxes on time, resulting in disconnect notices an d threats o f collection lawsuits an d imposition of tax liens

. He also acknowledge d writing Lockie a letter12

in February 2018 in which he expressed anger using insulting and vitri o lic language and instructed Lockie to hire a co ntractor an d mold removal company t o clean and remediate the house. Bob denied ever trying to divorce Lockie

. He conceded that his lawyer had drafted a divorce petition , but he claimed it was a tactic, withou t

ex plaining what he had ho p ed to accom plish. He believes that McGuire coerc ed Lockie into filing for divorce in 2018. Bob acknowledged that he wrote by hand a letter that Lockie signed five months after Dr. Kunik determined that she was completely incapac i t at ed. Th e letter accuses McG uire of forgi ng Lockie ’s signature and asks for cert ain periodic payments to be transferred to a different bank account

. Lockie ’ s cousin, McCarty, testified that she was concerned about Lockie ’ s

w e lfare, particularly because “ [n ]one of us have heard from Lockie in the last two
years. ” She said th at she and Lockie typically spoke a bout twice a year. She described Bob as h avin g been overbearing and controlling of Locki e throughou t their marriage. Barney , Lockie ’ s geriatric case man ager who had help ed re unite Bob and Lockie, said that Bob “ was often very agitat ed and upset about various things that

wer e going on or that he perceived to be going on

. ” She also described Bob a s

“ co ntrolling , ” but she said that she believes Bob loves Lockie. She o pined that Bob13

co uld not provide adequ ate supervision for Lockie due to her se rious health conditions

. Guy Roberts, Lockie ’ s adult s on, testifi ed that h e li ves in Pr ag ue, Czechoslovakia and travels to Hous ton about once a year in connection with his work in theater. He sa id that he visits h is mother when he comes to Houst on, sends her flowers three times a year, and speaks with her on the phone

. He said that Bob has been on the phone with Lockie during ever y phone call he had with his mother

o ver the prio r two years. He te sti fied that he wanted the court to appoint a guardian other than Bob in case he die s before Lockie

. The probate cou rt announce s its ruling. On the morning o f December 13, 2019, after four days of trial, the probate judge announced his ru ling and findings on the record. McGuire ’ s attorney announced i n op en court that McGuire was withdrawing her application to be

a ppoint ed the guar dian of Lockie ’ s person in favor of the court ’ s appointment of an independent guardian of Lockie ’ s person. A t 2 :05 p.m. Bob filed a written document entitle d “ O bjection to Denial of Constitutional Right to Jury Trial , ” which stated that a writte n judgment had not yet been signed and requested unspecifi ed “ other and further relief to which Robert H. Goode , Jr . may s how himself justly en titled to recei ve. ”14

The trial court ’ s final orders On December 18, 2019, the probate judge signed an order appo inting a
pe rmanent guardian of the person and creating a § 1301.053 trust for the benefit of Lockie. In its order , and rel evant to th is ap pe al , the trial court found that:

• Lockie is totally incapacitated as to her person and est ate;

• Lo ckie is unable to pr ovide food, clothing, or shelter for herself, care for her own physical health, or manage her own fi nancial affairs and pr operty;

• Lockie l ac ks the capacity to make personal decisions regarding residence, voting, operating a motor vehicle , purchas ing or own ing a firea rm, and ma rriage;

• Bob is unsuita ble to serve as guardian of Locki e ’ s person ;

• Bob is un suitable to serve as comm unity admin istra to r f or Lockie ’ s estate;

• McGuire brought her Application for Appointment of Permanent Gu ardian of the Person and Crea t ion of a M a nagement Trust, and all amendments thereto, in good faith and with just cause .

. . ;

• Bob brought his Applicati on for Appointm e nt o f Permanent Guardian of the Person and Application for Appointment for Communi ty Administrator for Lockie and all amendments thereto, in good faith and with just cause . . .

. The court appointed Vo ssler as perm anent guardian of Lockie ’ s pers on. On Jan uar y 17 , 2020, the trial court signed a “ Final Order Granting Attorney Fees, Cos ts, and Expenses. ” The court awarded $123,625 i n trial attorney ’ s fees, $11,390.41 in expenses, and $40,000 and $30,000 in conditional appellat e att orney ’ s fe es , should McGuire pr evail on appeal in the court of appeals or Supreme Court of Texas, respectively. On J anuary 24, 2020, the trial c ourt signed an “Order Creating15

§ 1301.053 Management Trust for the Benefit of Lockie L. Goode P ursu ant to Texas Estates Co de § 1301.053

. ” Bo b f iled individual notices of appeal from each of the three orders, and they were co nsolidated into one appeal in th is court. Analysis I. Bob waived his right to a jury trial. In his first issue on app eal, Bob argues that the trial cou rt erred by procee din g with a bench trial despite the fact that he had filed a jury demand and paid the fee

. A party ’s right to try his case be fore a jury is a constitutional right that can be waived. In re D.R. , 177 S.W .3d 574, 580 (Tex. App.

— Houston [1 st Dist.] 2005, pe t. denied) ( “[A] perfected right to a jury trial in a c ivil case may be waived by a party ’ s failure to act when the trial court proceeds with a bench trial. ”)

. But see Interest of
J.M. , No. 12

- 19

- 0035 3

- CV , 2020 WL 1528054, at *9 (Tex. App

. — Tyler Mar. 31,
2 020 , no pet.) (mem. op.) (identifying line of Texas interme diate appellate court

cases holding that party does not w aive right to trial by jury by p articipating in bench trial after having received an adv erse ruling on jury demand). “ Even when a civil li ti gan t has perfected a right to trial by j ury , that litigant must object or affirmatively indicate an intention to sta nd on his p erfected right. For example, a litigant waives the right to trial by jur y if he participates in a bench trial w ithout objection

. ” Al am v. Wilshire & Scott, P.C. , No. 01

- 06

- 00604

- CV, 2007 WL 2011048, at *3 (Tex. App.

— Houston [1st Dist.] July 12, 2007, no pe t.) (mem. op.)

.16

The probate court held a pretrial hearing to address t he p ro posed jury char ge , the parties ’ m otions in limin e, and preadmission of evidence. At th e hearing, the
pr ob ate court judge indicated that he did not believe there was a fact questi on on Lockie ’s capacity because McGuire, Bob, and Vossler, the gu ardi an ad litem, all agreed that Lockie was in c apacitated and in ne ed of a guardian

. Because the Estates Code gives a h u sband p riority to serv e as th e guardian of his wife ’ s person , t h e court
que st ioned whet her a jury was needed beca use, in his opinion, the sole question was whether Bob wa s suitable o r disqualified

. Bob ’ s counsel asserted that the question of McGuire ’s good faith was a contested fact issue that should be submit ted to the ju r y. Bob ’ s counsel : Good faith always goes to a jury

. It ’ s always a fact

issue. It ’ s a fact iss ue in every kind of ca se that exists if it goes to a jury

. But the disqualification could go to a jury

— all of it could

— and then yo u could take it out o f the ir han ds. So if we want to go down that road, that ’ s fine. But ours has not

— The Court: L et me ask you: Are you propos i ng tha t we have a

—

impanel a jury for the whole week, hear all the testimony and let them answer three questions ? Bob ’ s counsel : No. I ’ m saying that a jury request was filed and that

you can take it away fro m the jury. The Court: So your proposa l is we submit w hat eve r the entire

charge is to the jury and then

— McGuire ’ s counsel : She ’ s saying reverse the ju ry ’ s decision.17

Bob ’ s c ounsel : N o, I ’ m not

. . . . What I am saying is . . . you can

t ake everything away from the jury, so there is no point in havi ng one is what I ’ m say ing. . . . What I ’ m saying is we can argue all day. But if you decide to take it out of the hands of the jury, we stan d by your d ecision. The Court: Meaning that the Court can hear it? Bob ’ s c ounsel : Absolutely. Bob ’ s counsel maintai ned that good fa ith an d the amount of attorney ’ s fees should not be dec ided by submission to the cour t, however, when the proba te court reit erated that there w ould be no jury trial , Bob ’ s counsel did not object

. Afte r three days of testimony, the probat e court rendered jud gme nt by announcing its decision in open court on the record. Later that day, Bob filed a written “ Objection to Denial of C onstit ution al Right to Jury Trial. ” In its findings of fact , the trial court found: “ After the court ’ s rendition on December 13, 2 019 , R ob ert ’ s counsel complain ed, for the first time, ab out not having a jury trial. ” The probate court entered a written orde r appoint in g a permanent guardia n of Lockie ’ s person on December 18, 2019. In its conclusions of law regarding th e December 18, 20 19 ord er, the trial court concluded : “ Robert waived his right to a jury trial. ” We agree wit h the probate court. Although Bob demanded a jury and paid the fee, at the pretrial conference, his attorney agreed to a bench trial on the i ssue of his

s uitab ility a nd qualificati on to serve as Lockie ’s guardian

. When the court later ruled that there would be no jury trial at all , includ ing as to M cGuire ’s good fa ith, Bob ’s18

co unsel did not object or affirmatively indicate that Bob in tend ed to sta nd on his
per fe ct ed right to a j u ry trial. He participated in the bench trial, and then he objected to the absence of a jury after judgment was r endered. Th at objection was untimely

. See T EX
. R. A PP
. P. 33.1 (obj ection must be timely); see also Cit y of Hou s . v. Arney , 68 0 S. W .2d 867, 873 (Tex. App.

— Houston [1st Dist.] 1984, no writ) (“After the court rule s adversely to his position, appellant will not be hear d to complain that he was entitled to have a jury decide the fact question rather than the court.”), disapprove d on oth e r grounds by Univ. of Tex. Med. Branch v. York , 871 S.W.2d 175 (Tex. 1994)

. W e conclude that Bob waived his demand for a jury trial

. W e overrule Bob ’ s first issue. II. Several issues have been mo oted by events that occurr ed after th i s appeal w as fi led. A. Procedural history After the trial , in May 2020, the probate court terminated the trust , and two months later, it appointe d Catherine Wylie temporary gu ardian of Lockie ’s est ate. Bob filed a petition fo r writ of mandamus from that or der, and h e opposed the appointment of a permanent guardian of Lockie ’s est ate in the trial court. Meanwhile, in January 2021, Vo ssler asked to r esign as gu ar dian of Lock ie ’s pers on . T h e probate court a ccepted Vossler ’ s resignation and appointed Catherine Wylie as

s uccessor g uardian of Locki e ’ s person. Bob did not appeal from this order.19

In March 2021 , Bob nonsuited his claims and arguments regard ing the
app ointment of a permanent guardian o f Lockie ’s estate, saying, “The continu ation of these trials has s erved to o nly drain the Goodes physically and emotionally, and he no longer wishes to continue litigating while the issues are on appeal. ” He als o expressly stated that he was not abandoning “his right to visit and/or live with his spouse at a facility. ” I n April 20 21, the t r ial court appointed Catherine Wylie
p ermanent guardian of Lockie ’s estate.
In Ma y 2021, McGuire , the real party in intere st in the mand amus proceeding Bob had filed in response to the appointment of Wylie as temporary guardian of Locki e ’s estate , filed a motion to dismiss the mandamus proceeding. In her motion to dismiss, she indicate d that she believed parts of this appeal hav e been moot ed by
events and order s issued after the notice of appeal was filed in this case. We agree. B. Moot ness and p robate pr o ce edings

“ S ubject matter jurisdiction is essential to the authority of a court to decide a case.” Tex. Ass ’ n of Bus. v. Tex

. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993). “Subject matter jurisdiction requires that the party bringing the suit have stand ing, that t here be a live controversy between the parties, and that the case be ju sticiable.” The State Bar of Tex

. v. Gome z , 891 S.W.2d 243, 245 (Tex. 1994) ( citing Tex. Ass ’ n of Bus. , 852 S.W.2d at 443). “The mootness doctrine applies to case s in which a justiciable controversy exists between the parties at the time the case arose, b ut the20

live controversy ceases because of su bsequent ev ents.” Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist. , 484 S.W.3d 416, 418 (Tex. 2016). Li ke the doctrines of ripeness and standing, the mootness doctrine prevents the rendition of advisory

o pinions. Elec. Reliability Council of Tex. , Inc. v. Pan da Power Generation Infrastructure Fund, LLC , 619 S.W.3d 628, 634

– 35 (Tex. 2021) ; see Valley Baptist Med. Ctr. v. Gonzal ez , 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) (“Under article II, section 1 of the Texas Constitution, courts have no jur is diction to issue advisory opinions.”); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc. , 971 S.W.2d 439, 443 (Tex. 1998) ( “The courts of this state are not empowered to give advisory opinions.”); see a lso T EX
. C ONST
. art. II, § 1 (separation o f powers). Un der the mootness doctrine, “ a trial court ’s entry of a final judgment will oft en moot an interlocuto ry appeal or mand amu s petition that challe nges a p rior trial

- court order. ” Elec. Reliability Counci l , 619 S .W.3d at 63 5 ; see Roccaforte v. Jeffer s on C ty
. , 3 41 S.W.3d 919, 922 & n.5 (Tex. 2011) (quoting Hernandez v. Ebro m , 289 S.W.3d 316, 319 (Tex. 2009)). Generally, appeals m ay be tak en only from final judgments. Lehmann v. Har

– Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). P robate proceedings are an e xceptio n
to the “one final judgment” rule

. Id. at 192

. T he probate cour t has continuing juris di ction from the t ime an application f or appoin tment of a guardian is filed until the guardianship is settle d or closed

. T EX
. E S TATES C ODE § 1022.002 ; see Wood, ex21

rel. Green v. Dalhart R & R Mach. Works, Inc. , 259 S.W.3d 229, 230 (Tex. App.

— Amarillo 2008, no pet.)

. I n prob ate pr oceedings , “mu ltiple judgments final for purposes of appeal can b e rendered on certain discrete issues.” Lehmann , 39 S.W.3d at 19 2

. Ordinar ily, courts discuss this ex ception to the “ on e final judgment ” r ule in the con text of the appealability of an i nterlocutory order

. S ee De Ayala v. Mackie , 193 S.W.3d 575, 578 (Tex. 2006) (noting that nee d to review controlling, intermediate decis ions befor e error can affect later phases of probate proceeding justifies exception to “ one final judgment ” rule)

. Howeve r, the continuing na ture of probat e proceedings may also result in the mooting of a n appeal f rom an earlier order by the probate court ’ s issuance of a later order. See Elec. Reliability Council , 619 S.W.3d at 634

– 37 ( final judgment ma y moot earlier , interl ocutory order). C . Bob ’ s challenge to the probate court ’ s finding that he was un suitable to serve as the guard ian of Locki e ’ s person is moot. I n his secon d issue, Bob argues that the evid ence did not support a finding that he was unsuitable to serve as g uardian of Lockie ’s person. In his brief, he seeks rendition and appointment as g uardian of Lockie ’s person or , in the alte rn ative, remand for a n ew jury tr ial on the merits. This is a challenge to the December 2019 order appointing Vossler permanent guard ia n of Lockie ’s pers on. That order has since been supers eded by th e January 2021 order accepting Vossler ’s r esignation and appointing Wylie as su c cessor gua rdian of Lockie ’s person. Therefore, any

c ontroversy ab out the December 2019 order has ceased. See M atthews , 484 S.W.3d22

at 418

. Furthermore, Bob has not appealed from the January 2021 order , so any challenge to the appointment of Wylie is waived

. See Walli ng v. Metcalfe , 863 S.W.2d 56, 58 (Tex. 1993) ( stating that courts of appeals may not reverse for

un assigned error); Sto ll v. Lewis , No. 01

- 08

- 00556

- CV, 2009 WL 13313 51, at *3 (Tex. App.

— Houston [1st Dist.] M ay 14, 2009, pet. den ied) (me m. op. ) (stating ab sent fundamental error, court of appeals may not revers e for unassigned error). Moreover, the recor d supports a con c lus ion that the trial court did not abuse its dis cretion by finding Bob unsuitable to serve as Lockie ’ s guardian. Ordinarily a probate cou rt has broad discretion in selecting a guardian “accord ing to the circumstances and considering the incapacitated person ’s best interests. ” T EX
. E STATES C ODE § 1104. 1 01 ; see Johnson v. Johnson , No. 01

- 04

- 00813

- CV , 2005 WL 615421, at *2 (Tex. App

. — Houston [ 1st Dist.] Mar. 17, 2005, no pet.) (mem. op.) ( citing Trimb le v. Tex. Dep ’ t of Prot. & Re g . Servs. , 981 S.W.2d
211 , 214 (Tex. App.

— Houston [14th Dist.] 1998, no pet .) . A trial court abuses its discretion wh en it acts without refer ence to any gui din g princi ples. Downer v. Aquamari ne Operators, Inc. , 701 S. W.2 d 238, 241

– 42 (Tex. 1985)). Legal an d factual sufficien cy of the evidence are not independent gr ounds for asser ting error

. See In re Fuentes , 506 S.W.3d 586, 593 (Tex. App.

— Houston [1st Dist.] 2016, no
p et.)

. Instead, these are relevant factors in assessin g whether the court abused its23

discr etion , and we determine w hether the court had sufficient information on whic h to exercise its discretion and whether i t erred in its application of that dis cretion

. Id

. Under the Texas Estates Code, when an incapacita te d woman ’s husband is el ig ible to ser ve as her guardian, he is “entitled to the guardianship in preference to
any other person. ” T EX
. E STATES C ODE § 11 04.1 02(1). A person is el igi ble to serve

a s guardian if he is not disqualified. See id. §§ 1104.351

– .358 ; Guardianship of Allen , No. 12

- 14

- 002 49

- CV, 2015 WL 7280894, a t *2 (Tex. App.

— Tyler Nov. 18 , 2015, no pet.) (mem. op.) ; Trimble , 981 S.W.2d. at 215 (citing the predecesso r disq ualification sect ion of Texa s Probate Code). The Estates Code establishes several grounds for disqualification of a p otential guard ian. See T E X
. E STATES C ODE 1104.351

– .359. As relevant to this cas e , a person may not be appointed guardian if he is “fo und b y the court to be unsuitable

. ” see id. § 1104.352

. Here, t he record showed that B ob su ffers from a hoard ing disorder for which he refuses to a ccept help , he left Lockie alone in an unsafe situation w hen he under we nt back surgery , he did not und erstand an d accept Lockie ’s d iagn osis an d prognosis, he is reluctant to accept outside help a s necessary to assist Lockie with he r ne eds, and he is physic ally disabled

. This evidence sho ws that Bob is unable to
p rovide for the type of care Lockie needs now and as he r Alzheimer ’s sympt oms
progres s. The evidence adduced at trial was sufficient to en able the probate court to24

exercise i ts discretion , and it doe s not support a conclusion that the court abused that disc retion. See Fuentes , 506 S.W.3d at 593

. W e overrule B ob ’ s second issue.
D . Bob ’ s cha llenge to the probate court ’ s finding that he was uns uitable to serve as community admini strator of Lockie ’ s estat e is mo o t. In his third issue, Bob argues that the eviden ce did not support the trial court ’s find ing that he was unsuitable to se rve as comm unity administrator over Lockie ’s
estate. This is an appeal from the January 2020 order c reating a management trus t. The trust has been terminat ed, Wylie has been appointed perma nent guardian of Lockie ’ s estate, a nd Bob has n onsuited his oppos it ion to Wyli e ’ s appointment

. Because Bob dropped his challenge an d request to be appointed community administrator, any contro versy between the parties on this issu e has ceased. E. Bo b ’ s challenge t o the creation of a manage ment trust i s moot. In his fifth issue , Bob argues that the court erred by creating a trust and by finding McGuire in good faith aft er it limited the scope o f trial. Bob complains that the court ’ s limitation on the scope of tr ial d eprived him of witnesses , te stimony a nd cross examination and other evidence

. This portion of Bob ’ s fi fth issue is moot b ecause after he filed the notice of appeal from the order cre atin g a manag ement
tr ust, the probate court terminated the trust. W e overrule this part of Bob ’ s fi fth issue

as moot.25

III. The evi dence suppo rts the trial court ’ s finding that McGuire acted in g ood faith and with just cause in fil ing her application for t he appointment of guardians o f the person and estate for L ockie. In his four th issue, Bob argues t hat the evid ence did not support a finding that McGuire acted in good faith when she filed an ap plication for appointment of a guard ian of Lockie ’ s person an d for the creation of a management trust. We therefore

con strue Bob ’ s fourth issue as a challenge t o the award of attorney ’s fees. We review a court ’ s award of attorney ’ s fees in a guardianship p roceeding for

an abuse of discretion

. Epstein v. Hutchison , 1 75 S.W.3d 805, 807 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied)

. We will “rev erse the trial court ’ s ruling only if the trial c ourt acted without reference to any gui ding rules and principles, such that its ruling was arbitrary or unreasonable.” In re Guardians hip of Laroe , No. 05

- 15

- 01006

- CV, 2017 WL 511156, at *20 (Tex. App.

— Dalla s Feb. 8, 2017, pet. denied) (mem. op.). We view the evidenc e in the light most favorab l e to the trial
court ’ s decision , and absent an abuse of discr etion, we may not substit ute our judgment for that of the trial court. Epstein , 175 S.W.3d at 807

. Under the Estates Code , a court that has created a guardi anship has d is cretion to award attorney ’ s fees to a per son who filed the application for appointment of a
gua rdian. T EX
. E STA TES C ODE § 1155.054 (a) ; McIntyre v. McIntyre , No. 14

- 18

- 00609

- CV, 2019 WL 4511323, at *2 (Tex. App.

— Houston [14th Dist.] Sep . 19,
2 019, no pet .) (mem. op.) ; Guardianship of Burley , 499 S .W.3d 196, 199 (Tex.26

App.

— Houston [1 4th Dist. ] 2016, p et. denied)

. The award is paid “ from available funds of the ward ’ s estate. ” T EX
. E STATES C ODE § 1155.054 (a)

. “ T he court may not authorize attorney ’ s fees u nde r this section unless the court finds that t he applicant acted in good faith and for just cause in the filing and prosecution of the application. ” 6 Id. § 1155.054 (c). “Good faith ” and “just cause ” are not defined by the Estates Code , and no
T ex as cas e has d efined these terms in the context of a dis cretionary award of attorney ’s fees to a part y who fil ed an applicatio n for appointment of a guardian. However, the Estates Code includes a similar attorney ’s fees provision in regard to the pro bate of a wil l

. S e e T EX
. E STATES C ODE § 352.052(a) (awarding a ttorney ’s fees from the estate to a person de signated as executor or a dministrator who defends or
prosec utes a proceeding to have the will admitted to probate and act s in “ good faith and with just c aus e ”). In thi s context , “good faith ” means an action prom pted by honesty of intention or a reasonable belief th at the action wa s probably correct.
Matter of Kam , 484 S.W.3d 642, 654

– 55 (Tex. App.

— El Paso 2016, pet. denied)

. A party acts “ for just cause ” when her action s are based on reasonable grounds and there is a f

air and honest reason for her actions. Id.

6 In addition to the p rovision awarding attorney ’ s fees to a party who filed an application fo r app ointment of a gu ardian in good faith and with just c ause, the Esta tes Code includes provisi ons to allow the court to tax attorne y ’ s fees or costs agains t a p arty who acted in bad faith or without just cause. See T EX
. E STATES C ODE § 1155.054(d) (att orn ey ’ s fees); id. § 1155.15 1 (c) ( costs).27

On appeal , Bob argues that the court abused its discretion by finding that McGuir e acted in good faith and with just cause in fi ling her application for appointmen t of a gu ardian of Loc kie ’ s person and creation of a management trust. First, Bob asserts that the court prejudged the matter by commenting at th e pretrial h earin g that because both McGuire and Bob agreed that a guardians hip was
necessary, they both acted in good faith and with just cause in petitioning the court for a guardianship.
M cGuire f

iled the application for appointm ent of a guard ian of Lockie ’ s
per son , an d all parties except for Lockie herself, who was found t o b e completely incapacitat ed due to h er Alzh eimer ’ s disease , agreed that a guardianship was

necessar y. The record thus support s a conclusion that McGui re filed her application based on a reasonable b elief that her action was probably correct. See Kam , 484 S. W.3d at 654

– 55

. The evi dence also support s a conclusion that McGuire ’s action was based on reasonable grounds and that she had a fair and honest rea son for taking the actions she did. See id

. Fi rst, the need for a guardianship was established by evidence of Lockie ’ s complete inc apacity to manage her own aff airs and her need for support with activities of daily living. The re co rd demonstrat es that Bob was unsuitable to serve as Lockie ’ s guardian o r the community administrator . B o b had previously left her al one in an unsa nit ary and d angerous living situation at a time when her memory28

issues had become appar ent to him. He test ifie d about his reluctance an d unwillingness to accept help in organizing a nd managing the cou ple ’ s affairs and finances as well help in meeting Lockie ’ s needs for support with a ctivities of d a ily living. He did not agree that he had a ho arding disorder, which was demonstrated through testimony and photographic evidence at trial, and he refused to accept help for his hoarding disorder. Bob failed to prudently man age their f inances , as evidenced by the contrast between his assertions that th ey had a sizeable est ate and the nume rous l ate notices and threats of di sconnection or legal action due to unpaid bil ls. He also failed to deposit thousa nds of dollars in checks for so lon g that the checks expired. And he failed to claim property in his and Lockie ’ s name that was valued at about $25,000. This evid ence supports a conclu sion that McGuire had

reason able grounds and a fair and hones t reason for filing her application for th e

a p pointment o f a guardian of Lockie ’ s person and the creation of management tru st. In other words, the ev idence supports a conclusion that McGuire acte d with just

cause . See id. On appeal, Bob conflates the “ goo d faith ” and “ for just c ause ” test for an

awar d of attorn ey ’ s fees, with the statutory provision that allows a court to tax attorney ’ s fees against a party who acts in “ bad faith ” or “ without ju st cause. ” H is assertion that McGuire acted in bad faith is ba sed on un supported factu a l allegations.29

Specif ically, Bob relies on his own motion in limine as proof of the facts alleged therein. But the facts all eged therein are not supported by the record on appeal. We conclude that the court had s ufficient evidence to conclude that McGuir e acted in good f

aith and for jus t cause in filing her application for appointment of a guardian of Locki e ’ s person and creat ion of a management trust, and that it did no t abuse its discretion by awarding attor ney ’ s fees to McGuire ’ s attorneys. We overrul e Bo b ’ s fourth issue.
I V. Bob ’ s argument that the probate court’s limitation o f the scope of trial deprived him of the oppor tunity to introduce necessary evidence is ina dequately briefed. In his fifth issue, Bob raises two challenges. First, he asserts t hat the probate
court erred by cr eating a management trust when it had limited the s cope of trial t o his application for guar dianship of Lockie ’ s person and to be appoint ed community administrator. We h ave already explained that this challenge is moot. Sec ond, he asserts that t he co urt er red by finding McGuire in good faith when the court limited the sc ope of trial, “ depriving [ Bob] of witnesses, testimony, cross

- examinati on, and any evidence at all. ” He maintains that because McGuire did not testify, there was no evidence on wh ich the cou rt could find that she acted in good faith and with just
cause. We have already held that th e co urt had sufficient evidence to make that finding and rea ch that conclusion of law. Bob also contends that he relied on the

cour t ’ s limitation of the scope of tr i al and did not introduce evidence that he now30

argues is relevant and indispensable to a fin ding on whether McGuire acted in good faith. Th is part of Bob ’ s fifth i ssue is inadequately briefed. Altho ugh he provided a citat ion for a de novo stan dard of rev iew for this issue, he did not provide “ a clear and concise argume nt for the co ntentions mad e, with appropriate citations to authorities and t o the rec ord. ” T EX
. R. A PP
. P. 38.1(i). We overrule Bob ’ s fi fth issue. Conclus ion We affirm the judg ment of the probate court. All pending motions are dismissed as moot.

Peter Kelly Just ice Panel c onsists of Justices Kelly, Guer ra, and Farris.