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McIntyre v. McIntyre

Court of Appeals of Texas, Fourteenth District

September 19, 2019

SHERRY YVONNE MCINTYRE, Appellant
v.
JEFF MCINTYRE, Appellee

          On Appeal from the Probate Court No. 3 Trial Court Cause No. 450,992 Harris County, Texas

          Panel consists of Justices Wise, Jewell, and Hassan.

          MEMORANDUM OPINION

          Ken Wise, Justice

         This 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.

         In two 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 affirm.

         I. Jurisdiction

         In her 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.

         A. Justiciable Controversy Despite Ward's Death

         Although 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.

         Sherry's 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.

         Sherry 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 Code.

         B. Recovery of Attorney's Fees from Deceased Ward's Estate

         The 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).

         Under 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) (approving ...


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