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Click here for the full text of this decisionFACTS: Approximately two years after Jewel W. Keller became incapacitated, the County Court of Hamilton County appointed Cynthia Zipp to be the guardian of Keller’s person and estate. When a dispute arose between Zipp and Keller’s family, the county court transferred the case to the 220th District Court. After a bench trial, the district court ordered Zipp removed for cause and appointed Alisa Wuemling as successor guardian. Zipp appealed her removal to the 10th Court of Appeals. During the pendency of that appeal, Keller died of natural causes. A divided court of appeals concluded that Keller’s death rendered Zipp’s complaint moot. Holding that no justiciable controversy existed, the 10th Court dismissed the appeal. Zipp appealed. First, she contended that the 10th Court erred in dismissing her appeal as moot, because, despite Keller’s death, there remained a controversy between Zipp and Wuemling over who should wind up the affairs of the estate. Second, Zipp argued that her appeal was not moot, because she had a legally cognizable interest in guardian fees, attorneys’ fees and costs. HOLDING: Reversed and remanded. An appeal is moot, the Texas Supreme Court stated, when a court’s action on the merits cannot affect the rights of the parties. Thus, the death of a party can, under certain circumstances, render an appeal moot. Neither party to the controversy died, the court noted. Instead, although Keller died, the repercussions of the controversy between Zipp and Wuemling continued. Someone, whether Zipp, Wuemling or someone else, ultimately must present a final accounting of the guardianship estate to the district court, the court stated. The trial court disqualified Zipp as guardian and appointed Wuemling. Zipp, the court stated, has a right to appeal that decision. Allowing her appeal, the court stated, will not result in needless duplication of effort and cost to the estate. Rather, the court stated, the interests of the estate require full consideration of Zipp’s claims, because an estate is best served by the person the courts deem most qualified to perform guardianship duties. With Keller’s death and the guardianship of her person no longer at issue, the court stated that the parties with a remaining interest in the dispute are the parties relevant to the guardianship of Keller’s estate, namely Zipp, Wuemling and the estate itself. At the heart of the controversy, the court stated, is whether there was just cause for Zipp’s removal as guardian. The court found that the 10th Court should have reviewed the record to determine whether Zipp preserved error and, if so, considered the merits of Zipp’s claims. Therefore, the court stated that two of Zipp’s issues remained in controversy: 1. whether the district court properly removed Zipp as guardian; and 2. whether Zipp has a legally cognizable interest in fees and costs under Texas Probate Code ��665(e)(2) and 668(1)-(2). OPINION: Per curiam.

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