                                       In The

                                 Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00006-CV
                            ____________________


      IN THE GUARDIANSHIP OF JOYCE LANE TALLEY HATCH

_______________________________________________________             ______________

                On Appeal from the County Court at Law No. 2
                        Montgomery County, Texas
                        Trial Cause No. 12-29708-P
________________________________________________________             _____________

                          MEMORANDUM OPINION

      The trial court appointed Janis Hatch Cribb (“Cribb”) as the Permanent

Guardian of Joyce Lane Talley Hatch. Alfred Ray Hatch (“Hatch”) filed a notice of

appeal, but the ward died before Hatch filed his appellant’s brief. In two issues,

Hatch contends that the trial court abused its discretion in requiring that Hatch post

security to contest the guardianship and he argues that he was denied due process.

We dismiss the appeal as moot.

      Cribb and Hatch are the children of Joyce Lane Talley Hatch. Cribb filed a

guardianship application. Hatch filed a contest and asked to be appointed as

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guardian in the event the trial court ordered a permanent guardianship. The trial

court appointed temporary guardians of the person and estate of the proposed ward.

Cribb filed a motion in limine, contending that Hatch was disqualified to contest

Cribb’s application because Hatch had an interest adverse to that of the proposed

ward and that Hatch was statutorily disqualified to serve as guardian, as well.

Hatch filed a motion to dismiss his guardianship contest without prejudice

approximately one week before the scheduled hearing on Cribb’s motion in limine.

The trial court dismissed the contest the day before Cribb’s motion in limine would

have been heard. Approximately three weeks later, and shortly before the

guardianship hearing, Hatch’s attorney filed a motion to appear as counsel for the

proposed ward and alternatively requested reinstatement of Hatch’s contest. In

response, the temporary guardian filed a motion to require Hatch to pay security

for costs. The trial court continued the guardianship hearing, and on the following

day signed an order requiring the deposit of $25,000 as security for the probable

costs of the contest proceeding. Hatch filed a motion to vacate the order. After the

trial court denied Hatch’s request for another continuance, Hatch filed a written

notice that security for costs would not be filed. The trial court appointed Cribb as

the permanent guardian of the person and estate of Joyce Lane Talley Hatch upon

giving bond in the amount of $500,000.

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      On appeal, Cribb contends Hatch’s issues have been mooted by the ward’s

death. “An appeal is moot when a court’s action on the merits cannot affect the

rights of the parties.” Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007). In Zipp,

the trial court removed Zipp as the guardian of the ward’s person and estate for

cause and appointed Wuemling. Id. at 72. The ward died during the pendency of

the appeal, and the appellate court dismissed the appeal for lack of a justiciable

controversy. Id. The Supreme Court reversed because a controversy remained

regarding whether Zipp was properly removed as guardian for cause. The court

found that resolution of that issue was proper as the Probate Code made a

guardian’s fees and obligation to pay for costs and attorney’s fees incurred by the

removal dependent upon that determination. Id. at 73.

      Hatch’s issues concern the trial court’s decision to require Hatch to post

security before reinstating his challenge to Cribb’s appointment as guardian. To

support his position, Hatch relies on a case where the appellate court conditionally

granted a writ of mandamus compelling the trial court to vacate its orders requiring

the relators to deposit funds for security for costs into the court’s registry. See In re

Mitchell, 342 S.W.3d 186, 192-93 (Tex. App.—El Paso 2011, orig. proceeding). In

Mitchell, three siblings were litigating who should succeed their mother as

guardian of an incapacitated fourth sibling’s estate and person. Id. at 188. The trial

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court appointed a guardian ad litem and an attorney ad litem to represent the ward

during the contested guardianship proceedings, then ordered the sisters to make

deposits for costs. Id. The appellate court reasoned that a section of the Texas

Probate Code that required that the guardian be paid out of the ward’s estate

controlled over the section of the Texas Probate Code that authorized a trial court

to order an applicant or a contestant to give security for costs, because the matter

before the trial court was a proceeding to appoint a successor guardian for an

undoubtedly incapacitated person. Id. at 191-92. The appellate court noted that it

might be appropriate for an applicant to be required to post security in a

proceeding to appoint a guardian for the first time, where it would not be clear

from the outset that the applicant will not be responsible for costs. Id. at 192.

Turning to the adequacy of an appellate remedy, the court reasoned that mandamus

relief was appropriate to preserve important rights from impairment or loss where

the relators will be deprived of the use of a substantial amount of money if they

preserved their rights by filing the ordered security. Id.

      In Mitchell, the appellate court considered the issue before the trial court

appointed a successor guardian for a living ward. See id. at 188-89. In Zipp, the

trial court removed the appellant as guardian and appointed the appellee as

successor guardian. 218 S.W.3d at 72. After the ward died during the pendency of

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the appeal, the court held that a justiciable controversy remained concerning

whether the original guardian removed for cause would be liable for costs and

attorney’s fees associated with such removal. Id. at 73. In this case, Hatch never

paid the ordered security and thus, no contest was ever heard against the appointed

guardian and Hatch was never appointed as guardian of the ward. Consequently,

the case proceeded to a final hearing and the trial court appointed Cribb as the

permanent guardian. The trial court assessed no costs against Hatch. Now that the

ward is deceased, any issue concerning her incapacity and the need for a

guardianship is moot and the only remaining issue is to close the guardianship

estate. See Tex. Est. Code Ann. §§ 1202.001(b)(1), 1204.001(b)(1) (West 2014).

Accordingly, we dismiss the appeal as moot.

      APPEAL DISMISSED.




                                      ________________________________
                                             CHARLES KREGER
                                                     Justice



Submitted on October 15, 2014
Opinion Delivered October 29, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.

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