Appeal from the Probate Court No. 3 Trial Court Cause No.
450,992 Harris County, Texas
consists of Justices Wise, Jewell, and Hassan.
case involves a dispute over attorney's fees in a
guardianship proceeding. After the parties signed a mediated
settlement agreement (MSA) and participated in arbitration
under the MSA, appellee Jeff McIntyre applied for the
appointment of a temporary guardian, alleging that appellant
Sherry Yvonne McIntyre failed to comply with an arbiter's
decision regarding medical care for the proposed ward, John
McIntyre. The probate court appointed a temporary guardian of
the person for John. Jeff sought reimbursement of his
attorney's fees under the Estates Code. See Tex.
Est. Code § 1155.054. After John died and the guardian
filed a final report, the court awarded attorney's fees
to Jeff payable from John's estate.
issues, Sherry contends that the probate court lacked
jurisdiction to award attorney's fees, and the court
erred by awarding fees in contravention of the MSA. We
first issue, Sherry contends that the probate court's
jurisdiction expired when John died, and the probate court
could not order attorney's fees to be paid out of
John's estate because the probate court never created a
guardianship over John's estate.
Justiciable Controversy Despite Ward's Death
the guardianship of a person ends with the death of the ward,
a justiciable controversy may continue to exist regarding
other matters such as the guardian's fees and
attorney's fees. See Zipp v. Wuemling, 218
S.W.3d 71, 73–74 (Tex. 2007) (holding that the
ward's death during pendency of the appeal did not render
moot a controversy about removal of the guardian, the
guardian's fees, and attorney's fees). Here, a
justiciable controversy existed after John died regarding
Jeff's application for attorney's fees to be
disbursed from John's estate. See id.
cases are inapposite because they concern the authority of a
guardian to sell a ward's assets after the ward's
death, not whether a request for statutory attorney's
fees can be resolved after the ward's death. See
Easterline v. Bean, 121 Tex. 327, 337, 49 S.W.2d 427,
431 (1932) (holding that the probate court did not have
jurisdiction to confirm sale of real estate after ward's
death); In re Estate of Glass, 961 S.W.2d 461,
461–62 (Tex.App.-Houston [1st Dist.] 1997, pet. denied)
(holding that the probate court did not err by ordering the
guardian to file a final accounting and terminate the
guardianship, despite the guardian's request to collect
and liquidate assets of the ward to pay expenses and
creditors of the ward's estate). Sherry's reliance in
her reply brief on Mersch v. Texas Department of Aging
& Disability Services is also misplaced.
See No. 01-17-00186-CV, 2018 WL 2012035
(Tex.App.-Houston [1st Dist.] May 1, 2018, no pet.) (mem.
op.). Mersch involved claims for declaratory relief
regarding whether the plaintiff or the ward owned certain
property. See id. at *2–3. The claims,
asserted in a separate action from the guardianship
proceeding against the guardian, were rendered moot by the
death of the ward because there was no longer a genuine
conflict of tangible interests among the plaintiff and the
guardian; no party had the capacity to dispute the
plaintiff's claims. See id.
cites no authority, and we have found none, to support the
proposition that the death of the ward or the probate
court's acceptance of the guardian's final report
divests the court of jurisdiction to rule on a pending
application for attorney's fees authorized by the Estates
Recovery of Attorney's Fees from Deceased Ward's
Estates Code authorizes a court that has created a
guardianship to award attorney's fees to a person who
filed the application for appointment of a guardian.
See Tex. Est. Code § 1155.054(a). The Statute
applies to the appointment of a temporary guardian, as in
this case. See id. § 1251.013. The court may
authorize the payment of attorney's fees "from
available funds of the ward's estate." See
id. § 1155.054(a).
the Code, a "ward" is "a person for whom a
guardian has been appointed." Id. §
1002.030. A guardian includes a temporary guardian.
Id. § 1002.012. An "estate" is
"a ward's or deceased ward's
property." Id. § 1002.010 (emphasis
added). A ward's estate does not cease to exist at the
ward's death. In re Guardianship of Bayne, 171
S.W.3d 232, 236 (Tex.App.-Dallas 2005, pet. denied)