Affirmed and Memorandum Opinion filed September 19, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00609-CV

                 SHERRY YVONNE MCINTYRE, Appellant
                                        V.
                         JEFF MCINTYRE, Appellee

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

                         MEMORANDUM OPINION

      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,

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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
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(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 the payment of attorney’s fees from the ward’s estate after the
ward’s death).

      According to the statutes, the probate court could award attorney’s fees to be
paid from a ward’s estate, which includes a deceased ward’s property. John was a
ward. Thus, the plain language of Section 1155.054(a) and the relevant definitions
reveal that the probate court could award attorney’s fees to Jeff from available
funds of John’s property although John was deceased.

      The authorities Sherry cites are inapposite because the facts are materially
different. See In re Guardianship of Whitt, 407 S.W.3d 495, 500 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (probate court correctly denied fees because the
court never appointed a guardian, so there was no ward and no estate from which
to order the payment of attorney’s fees); In re Guardianship of Person & Estate of
A.M.K., No. 04-08-00268-CV, 2009 WL 1028074, at *1, *3 (Tex. App.—San
Antonio Apr. 15, 2009, no pet.) (mem. op.) (probate court erroneously ordered
father of wards to pay attorney’s fees directly, not from the estates of the wards);
Here, the probate court appointed a guardian and then awarded fees under the
Estates Code to be payable from the deceased ward’s property.

      Sherry’s first issue is overruled.

                   II.    MEDIATED SETTLEMENT AGREEMENT

      In her second issue, Sherry contends that the probate court abused its
discretion by awarding attorney’s fees in contravention of the MSA. Sherry
contends that Jeff (1) agreed to pay his own attorney’s fees in the MSA; and (2)



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released any claims for reimbursement other than those related to breach of the
MSA, which Jeff failed to prove.

           We hold that Sherry waived the affirmative defense of release and that the
MSA does not unambiguously waive a statutory claim for attorney’s fees regarding
a future application to appoint a guardian.

A.         MSA Provisions and Procedural Background

           In the MSA, the parties agreed that a medical power of attorney naming
Sherry as John’s agent was a viable lesser restrictive alternative to guardianship,
“as long as the terms of this Agreement are upheld.” The parties agreed that John
would be under the care of a board-certified geriatrician, among other provisions
regarding John’s care. And, the parties agreed to submit future disputes about any
decisions related to John’s care to informal binding arbitration. Under the
arbitration provision, the parties did “not waive their right to enforce this
Agreement or refile for guardianship should a Party not comply with [the arbiter’s]
decision.”

           The MSA included the following provision regarding attorney’s fees
(Paragraph 16):

           16.    Sherry, Jeff, Nan, Nancy, Paula, Martha, and Dianna shall be
                  responsible for their own attorney’s fees.
The MSA also included a release of claims (Paragraph 22).1

     1
         The release provides:
           22.    Joint and Mutual Releases. Each party for himself and his lineal heirs,
                  beneficiaries, assigns, representatives, agents, spouses, and descendants,
                  hereby forever releases and discharges each and every other party and
                  their heirs, personal representatives, executors, affiliates, officers,
                  directors, partners, administrators, successors, agents, attorneys, and
                  assigns of and from any and all liabilities, claims, and causes of action,
                  including, but not limited to, tortious interference with inheritance rights,
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      Jeff ultimately applied for the appointment of a temporary guardian and
alleged that the parties participated in arbitration and that the arbiter ordered
Sherry to coordinate with other doctors to have the approved geriatrician receive
medical information regarding John. Jeff alleged that the geriatrician had not
received the requested information as of the date of the filing of the application.

      The probate court held a hearing on the application, during which the parties
agreed to a settlement. The agreement was transcribed in the reporter’s record. The
parties agreed for a third-party to be appointed as a temporary guardian of the
person for John. The parties agreed that Sherry’s medical power of attorney for
John would be suspended. The probate court signed an order consistent with the
agreement.

      Jeff filed an application for reimbursement of attorney’s fees, requesting fees
that were incurred after the arbitration. Sherry responded and argued that Jeff could
not recover attorney’s fees because of Paragraph 16 in the MSA. Then John died,
and Sherry supplemented the response and argued that the probate court lacked
jurisdiction. At a hearing, Sherry made the same arguments; she did not mention

             tortious interference with contracts, tortious interference with business
             relations, physical, mental, or emotional distress, any gifts or alleged
             advancements, or claims against the estate, non-probate assets, non-
             probate transfers, claims of conflict of interest, claims against attorneys,
             accountants, fiduciaries or agents, unjust enrichment, the administration of
             the Guardianship of the Person and Estate of John, all claims which were
             or could have been made in the currently pending guardianship
             proceeding, including but not limited to, claims for fraudulent
             concealment, rights of reimbursements, exempt property, homestead,
             fraud, fraud on the community, theft, undue influence, misappropriation,
             breach of fiduciary duty, and any other statutory rights and demands and
             causes of action of any kind and/or character, whether known or unknown,
             fixed or contingent, liquidated or unliquidated, whether or not asserted,
             arising out of or any way connected with any act, omission, or event
             related to any other Party and/or the Guardianship of the Person and Estate
             of John, save and except for the representations, warranties, and/or
             obligations under this Agreement.

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the release in Paragraph 22 or Jeff’s supposed failure to prove a breach of the
MSA.

       The probate court ordered Sherry, as agent for John, to reimburse Jeff for
attorney’s fees from assets belonging to John’s estate.

B.     Waiver of Affirmative Defense of Release

       An assertion that a release bars a claim is an affirmative defense that the
defendant must plead and prove. Barras v. Barras, 396 S.W.3d 154, 170 n.5 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied); see Tex. R. Civ. P. 94; see also
Wilson v. Fleming, 566 S.W.3d 410, 415, 426 (Tex. App.—Houston [14th Dist.]
2018, pet. filed) (placing burden on the defendants who asserted the release to
show that the plaintiffs’ claims fell within the scope of the release). Generally, the
defendant’s failure to plead an affirmative defense waives it. Shoemake v. Fogel,
Ltd., 826 S.W.2d 933, 937 (Tex. 1992). Indeed, a trial court errs by rendering a
judgment on an unpleaded affirmative defense that was not tried by consent, and
the court lacks authority to make findings on the defense. See Cont’l Homes of
Tex., L.P. v. City of San Antonio, 275 S.W.3d 9, 17 (Tex. App.—San Antonio
2008, pet. denied); Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851
(Tex. App.—Dallas 2005, pet. denied); RE/MAX of Tex., Inc. v. Katar Corp., 961
S.W.2d 324, 327–28 (Tex. App.—Houston [1st Dist.] 1997), pet. denied, 989
S.W.2d 363 (Tex. 1999); see also Frazier v. Havens, 102 S.W.3d 406, 411–13
(Tex. App.—Houston [14th Dist.] 2003, no pet.) (trial court’s application of
unpleaded affirmative defense that was not tried by consent probably caused
rendition of improper judgment).

       Nothing in this record suggests that the parties tried by consent issues
regarding the release. See generally Moore v. Altra Energy Techs., Inc., 321
S.W.3d 727, 734 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (discussing
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trial by consent). Sherry did not mention the release in her filings or during the
hearing. Accordingly, we cannot reverse the probate court’s judgment based on
Sherry’s assertion for the first time on appeal that a release barred Jeff’s recovery
of attorney’s fees.

C.    No Waiver of Statutory Attorney’s Fees for Future Guardianship
      Application
      A contractual waiver of attorney’s fees must “specifically preclude a
statutory claim to an award of attorney’s fees.” Herring v. Heron Lakes Estates
Owners Ass’n, No. 14-09-00772-CV, 2011 WL 2739517, at *6 (Tex. App.—
Houston [14th Dist.] Jan. 4, 2011, no pet.) (mem. op.) (alteration omitted) (quoting
Nat’l Bank v. Sandia Mortg. Corp., 872 F.2d 692, 701 (5th Cir. 1989)); see also
MeadWestvaco Corp. v. Way Serv., Ltd., No. 09-15-00014-CV, 2016 WL 421303,
at *9 (Tex. App.—Beaumont Feb. 4, 2016, no pet.) (mem. op.); Bank of Am., N.A.
v. Hubler, 211 S.W.3d 859, 865 (Tex. App.—Waco 2006, pet. granted, judgm’t
vacated w.r.m.).

      In Herring, for example, the parties entered into a Rule 11 settlement
agreement in open court, see Tex. R. Civ. P. 11, where the parties agreed they
would pay their own attorney’s fees. 2011 WL 2739517, at *1, *4. This court
upheld a subsequent award of attorney’s fees under Section 38.001 of the Civil
Practice and Remedies Code for breach of the Rule 11 agreement, for amounts
accruing after the breach of the agreement, because the provision did not
specifically preclude a statutory award of attorney’s fees for breach of the
settlement agreement itself. See id. at *6.

      Here, Paragraph 16 does not unambiguously waive a party’s statutory claim
to attorney’s fees related to future requests for the appointment of a guardian. And,
the arbitration provision states that Jeff would not waive his right to “refile for

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guardianship should a Party not comply with [the arbiter’s] decision,” as Jeff
alleged in his application. Sherry does not dispute Jeff’s assertion that the probate
court’s award of attorney’s fees did not include any fees incurred before the parties
signed the MSA or participated in arbitration. Thus, the probate court did not err
by rejecting Sherry’s contention that Paragraph 16 barred the award of attorney’s
fees under Section 1155.054 of the Estates Code. See id.; cf. Maynard v. Booth,
421 S.W.3d 182, 185–86 (Tex. App.—San Antonio 2013, pet. denied) (noting that
an award of attorney’s fees under Section 38.001 was mandatory for breach of a
settlement agreement although the settlement agreement “called for each party to
pay their own attorney’s fees”).

      Sherry’s second issue is overruled.

                                   III.   CONCLUSION

      Having overruled both of Sherry’s issues, we affirm the probate court’s June
25, 2018 order approving an expenditure of funds for reimbursement of attorney’s
fees and expenses.



                                          /s/       Ken Wise
                                                    Justice

Panel consists of Justices Wise, Jewell, and Hassan.




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