Amy Shouldice v. Christine Van Hamersveld and John D. Thompson Jr.

• Court: Court of Appeals of Texas
• Decided: February 16, 2023
• Docket: 09-20-00250-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00250-CV __________________

AMY SHOULDICE, Appellant

v.

CHRISTINE VAN HAMERSVELD AND JOHN D. THOMPSON JR., Appellees __________________________________________________________________

On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Cause No. 17-35611-P __________________________________________________________________

MEMORANDUM OPINION

This is the second time the appellant, Amy Shouldice, has

complained on appeal that the appellees failed to present sufficient

evidence to support the award of attorney’s fees the appellees received in

a bench trial. In the prior appeal (“Shouldice I”), we agreed with Amy’s

argument that the appellees failed to present the trial court with

sufficient evidence to establish the reasonableness and necessity of the

1 award of attorney’s fees under the lodestar method used to determine

whether the evidence supported the trial court’s award. 1 Even though we

rejected most of Amy’s other complaints in Shouldice I about that

judgment, affirming it in part, we reversed the judgment as to the

attorney’s fees award. 2 We remanded the case to the trial court to

redetermine the amount (if any) the appellees were entitled to recover as

a reasonable and necessary attorney’s fee for services their attorneys

performed in representing the appellees on their Uniform Declaratory

Judgments Act (UDJA) claims. 3

On remand, the parties tried the attorney’s fee issues to the bench.

Following the trial, the trial court awarded the appellees $314,816.63 in

attorney’s fees, with additional awards for fees which the court made

contingent on the appellees succeeding on appeal. In Amy’s second

1See Shouldice v. Van Hamersveld, No. 09-18-00355-CV, 2020 Tex. App. LEXIS 622, at *14-19 (Tex. App.—Beaumont Jan. 23, 2020, no pet.) (Shouldice I) (relying on Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484 (Tex. 2019) and Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)). 2Id. at *19. 3Id.; Tex Civ. Prac. & Rem. Code Ann. § 37.001-.011 (the Uniform

Declaratory Judgments Act).

2 appeal, she argues the trial court abused its discretion by allowing the

appellees to recover attorney’s fees because:

1) The UDJA doesn’t allow the appellees to recover attorney’s fees on

their UDJA claims since they raised them as a defense to her

petition contesting her mother’s will;

2) In Shouldice I, the Ninth Court of Appeals erred in failing to reverse

the trial court’s judgment and render a take nothing judgment in

Amy’s favor on the appellees’ claim seeking to recover attorney’s

fees;

3) The trial court’s award of attorney’s fees is not equitable and just

because it requires Amy to bear the burden of her trial attorney’s

misconduct; and

4) The evidence supporting the trial court’s attorney’s fee award is

legally and factually insufficient to support the award.

For the reasons explained below, we overrule Amy’s issues and

affirm the judgment.

3 Background

The parties in this case are siblings, the three children of Mary E.

Thompson. Mary, a widow, died in August 2017 at the age of 84. 4 Mary

signed a will in 2009 naming Christine Van Hamersveld—her oldest

daughter—as the independent executor of her estate. Under Mary’s will,

Mary left her “vehicles, club memberships, clothing, jewelry, household

goods, furniture and furnishings, [and] other articles of personal use to

her children in equal shares.” Mary left the rest of her estate to her trust,

the Mary E. Thompson Revocable Trust. That trust was established in

1999. The will includes a no-contest clause, which provides the benefits

of the will are revoked as to any person who contests the will. In case of

an unsuccessful will contest, Mary directed the benefits that would have

otherwise gone to the person contesting her will to the residuary

beneficiaries of the will.

When Mary signed the will, she also amended the Mary E.

Thompson Revocable Trust. Mary was also the beneficiary of a trust

established by her late husband, John D. Thompson. In Mary’s will, Mary

4Forbrevity and clarity, we will usually refer to the parties in the opinion by their first names. 4 exercised the powers she had under her late husband’s trust to appoint

the income and principal of the John D. Thompson Revocable Trust to

the Mary E. Thompson Revocable Trust.

Soon after Mary’s death, Christine applied to probate the will,

which we discussed above. In September 2017, Amy filed a contest to the

validity of Mary’s will. Among other grounds raised in her contest, Amy

claimed Mary lacked the testamentary capacity required to execute a

will. In response to Amy’s contest, Christine filed a Petition for

Declaratory Relief. Less than a month later, Christine was joined by her

brother John (Mary’s son), and they filed an Amended Petition for

Declaratory Judgment, which among other matters concerned Mary’s

capacity to execute a will and to amend her trust.

Amy didn’t prevail on any of the claims she made in the probate

court contesting Mary’s will. 5 In the previous trial, the trial court found

that Amy violated the will’s no-contest clause. 6 Three of the trial court’s

5See Shouldice I, 2020 Tex. App. LEXIS 622, at *4-5. 6The judgment in Shouldice I is Exhibit 4 in the exhibits admitted into evidence in the trial on remand. 5 findings in Shouldice I specifically referenced the UDJA. There, citing

the UDJA, the trial court found that:

1) Mary E. Thompson possessed the requisite mental capacity to

execute the Last Will and Testament.

2) Mary E. Thompson possessed the requisite capacity to execute

the Third Amended and Restated Mary E. Thompson

Revocable Trust.

3) Amy Shouldice violated the no-contest clause of the Last Will

and Testament.

In addition to these findings, in Shouldice I the trial court found in

its judgment that (1) Amy’s claim alleging Mary lacked testamentary

intent as to her last will was “not meritorious” and that (2) Mary “had

capacity to execute the Third Amended and Restated Mary E. Thompson

Revocable Trust.” The trial court also granted Christine’s request asking

the court to award $222,906 in attorney’s fees as a necessary expense out

of Mary’s estate. 7 On top of that, the trial court ordered Amy to pay

7See Tex. Estates Code Ann. § 352.051 (allowing the personal representative of the estate on proof satisfactory to the court to recover the reasonable and necessary expenses incurred in representing the estate, which includes “reasonable attorney’s fees necessarily incurred in 6 Christine and John $222,906 in attorney’s fees based on Amy’s claims

under the UDJA, finding the fees reasonable and necessary for the

services rendered by the attorneys who represented them in the case.

In her appeal in Shouldice I, Amy complained about the trial court’s

rulings (1) imposing discovery sanctions, (2) trying the case without a

jury, (3) finding she contested her mother’s will in bad faith, (4)

overruling her motion for new trial, (5) holding her in contempt, and (6)

awarding attorney’s fees against her under the UDJA. 8 However, Amy

didn’t complain the evidence was insufficient to support the attorney’s

fees the trial court awarded in its judgment under the Estates Code to be

paid out of Mary’s estate as a necessary expense of administering the

estate. 9

In Shouldice I, we overruled all of Amy’s complaints except one,

finding the evidence insufficient to support the trial court’s award of

connection with the proceedings and management of the estate”); id. § 352.052 (allowing an executor who defends the will or prosecutes any proceeding in good faith and with just cause to be allowed the necessary expenses of the proceeding including reasonable attorney’s fees “out of the estate”). 8Shouldice I, 2020 Tex. App. LEXIS 622, at *8-19. 9Tex. Estates Code Ann. §§ 352.051, .052(a).

7 attorney’s fees awarded on the appellees’ UDJA claims. 10 Citing

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484

(Tex. 2019), we explained that “[w]hen fee shifting is authorized, the

party seeking a fee award must prove the reasonableness and necessity

of the requested attorney’s fees.” Then, we explained what evidence was

needed to support a factfinder’s award of a reasonable and necessary

fee. 11

On remand, one witness testified in the trial—Steven Earl—the

attorney who appeared as lead counsel for appellees in the proceedings

in October 2017. At the appellees’ request, the trial court admitted

fourteen exhibits into evidence to support Earl’s testimony about the

necessity and reasonableness of his firm’s fees. The exhibits admitted

into evidence include sixty-four pages of invoices from Earl’s law firm.

The invoices detail who performed each task in working on the matters

involved in the case, describe the services Earl’s firm performed, the time

each task took, and the rates at which the tasks were billed. The initials

of the person who performed each task is listed in the invoices beside the

10Shouldice I, 2020 Tex. App. LEXIS 622, at *14-19. 11Id. at *14-15. 8 description of the tasks performed. Other than Earl, the exhibits include

copies of the Texas State Bar profiles of the attorneys whose time entries

are included in the invoices in evidence. Earl described his qualifications

and experience in handling litigation and probate matters, which he

testified included challenges to both wills and trusts.

Earl also testified that after considering the lodestar factors, the

exhibits in evidence, and the usual and customary attorney’s fee charged

for services in Montgomery County, it was his opinion that $399,744

represented a usual, customary, and reasonable award on the appellees’

claims for equitable relief. Earl also testified that amount was just and

fair under the circumstances involved in the litigation, which he

attributed to both Amy and her attorney for causing the litigation to turn

“out to be more expensive than the average probate litigation case by the

time we went to trial[.]”

When Amy’s attorney had his chance in the trial on remand, he

asked Earl just eight questions. The entire record of both the questions

and answers of Earl’s cross-examination consumes just over three pages

of the Reporter’s Record. Earl conceded the attorney’s fees the appellees

were requesting in the trial on remand were approximately $170,000

9 higher than the amount the trial court awarded in Shouldice I. Yet Amy’s

attorney was never asked to explain the reasons for the increase. Amy’s

attorney also asked Earl whether he segregated his firm’s charges

between the fees incurred in the probate action and the fees incurred in

pursuing declaratory relief. In response, Earl explained he reduced what

his firm charged by five percent because that was the work he attributed

to the work his firm did solely on the claims for his clients under the

Estates Code. In the end, the trial court awarded the appellees less than

what Earl wanted, awarding $314,816 against Amy on the appellees’

UDJA claims. The trial court also awarded $26,250 in additional fees in

the event Amy unsuccessfully pursued an appeal.

Analysis

Does the UDJA Apply?

In her first issue, Amy argues the UDJA doesn’t allow the appellees

to recover attorney’s fees on their UDJA claims since they raised them as

a defense to her petition contesting her mother’s will. Yet even Amy

recognizes in her brief that attorney’s fees are available under the UDJA

when the defensive claims pleaded under the UDJA raise issues that go

beyond the ones raised by the plaintiff. Indeed, Amy concedes that in this

10 case, the declaratory judgment issues “implicate[d] almost all aspects of

the trial and [the] appeal.”

The UDJA specifically authorizes executors of estates and heirs to

“have a declaration of rights or legal relations in respect to the trust or

estate . . . to determine any question arising in the administration of the

trust or estate, including questions of construction of wills and other

writings[.]” 12 In its judgment in Shouldice I, which this Court affirmed,

the trial court declared that Mary possessed the requisite capacity to

execute the “Third Amended and Restated Mary E. Thompson Revocable

Trust.” The trial court also declared that Amy violated the no-contest

clause of the will.

Those two findings would not have been in the judgment based on

Amy’s pleadings contesting Mary’s will. Thus, even though the evidence

needed to resolve the issues was related, the issues in the declaratory

judgment action and the will contest case were not entirely duplicative.13

12Tex. Civ. Prac. & Rem. Code Ann. § 37.005(3). 13SeeCahill v. Cahill, No. 09-20-00206-CV, 2022 Tex. App. LEXIS 792, at *28 (Tex. App.—Beaumont Feb. 3, 2022, pet. denied). 11 Above all, the validity of Mary’s trust was an important issue, as

Amy recognized in her brief. Yet Amy doesn’t explain why the trial court’s

findings upholding the trust and the will’s no-contest clause don’t have

ramifications that go beyond the issues raised by her pleadings

contesting Mary’s will. We overrule Amy’s first issue.

Was Amy Entitled to Have the Ninth Court Render Judgment in her Favor against Appellees on their Attorney’s Fees Claim in Shouldice I?

In issue two, Amy argues this Court should not have given

Christine and John “a second bite at the apple” on their claim against

Amy for attorney’s fees when there was “a total lack of proof at the first

trial.” But in Shouldice I, we didn’t conclude there was a total lack of

proof. Rather we explained in detail what evidence the trial court had

before it on fees and why it was deficient. In Shouldice I, we said that

neither the “testimony nor documentary evidence concerning the number

of hours required or reasonable hourly rate can be found in the record,

which also lacks any description of the work required to respond to an

appeal.” 14

14Shouldice I, 2020 Tex. App. LEXIS 622, at *17. 12 True, we concluded the evidence supporting the attorney’s fees

awarded in Shouldice I was legally insufficient. 15 But that is not the

equivalent of no proof. When a party seeking to recover attorney’s fees

presents evidence that isn’t sufficiently detailed to prove the fees were

reasonable and necessary under a statute authorizing attorney’s fees to

be awarded, the proper remedy is a remand and not a rendition of the

award. 16 We overrule Amy’s second issue.

Is it Inequitable or Unjust if the Attorney’s Fees Awarded Were Incurred, as Amy Claims, Due to Her Attorney’s Misconduct?

In issue three and without citing the record, Amy argues it is “most

unequitable that the offending counsel escapes and the burden of

attorney fees falls upon [Amy].” In her brief, Amy cites just one case to

support her argument, Goughnour v. Patterson, No. 12-17-00234-CV,

2019 Tex. App. LEXIS 1665, at *45 (Tex. App.—Tyler Mar. 5, 2019, pet.

denied). Yet Amy cites Goughnour solely for the proposition that a trial

15Id. at *18. 16Rohrmoos, 578 S.W.3d at 505 (after finding the evidence supporting the attorney’s fee award legally insufficient remanding the case to the trial court to redetermine the award); Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014) (concluding that because “no legally sufficient evidence supports the award under the lodestar method, we remand to redetermine attorney’s fees”). 13 court’s award of attorney’s fees is reviewed for abuse of discretion. 17 Amy

didn’t provide us with any cites to the record that explain how the

attorney who represented her in the first trial, Donnya Banks, increased

the fees the court ultimately awarded in the trial on remand. On the

other hand, the appellees’ brief explains how Amy and Banks abused “the

court process.” Appellees provided the Court with citations to the

Reporter’s Record, and they concluded that Amy “was complicit with

Banks counsel” in increasing the burden involved with the fees. For

instance, appellees explained that Amy’s abuse included refusing “to

disclose the names of witnesses in the discovery phase of Shouldice I.”

The probate judge who presided over the trial on remand is the

same judge who presided over the trial in Shouldice I. After hearing the

testimony in the trial on remand and based on her knowledge of the

proceedings about who was responsible for the misconduct, the trial court

commented in the trial on remand that Amy “was the only one who had

control of Ms. Banks.”

17Id.

14 The appellate court is a neutral party in resolving the appeal. It’s

simply beyond this Court’s role for it to become an advocate for one of the

parties in an appeal. 18 In Amy’s appeal, we are not required to search

through the Reporter’s Records and Clerk’s Record to find support for a

conclusion where the increased expense resulted from conduct that is

solely attributable to Donnya Banks when the brief she filed doesn’t

provide us with appropriate cites. 19 We also have no duty to search for

legal authority to support Amy’s position. 20 On the contrary, the Texas

Rules of Appellate Procedure requires the appellant’s brief to contain “a

clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.” 21 For these reasons, we hold

Amy waived her fourth issue.

18Golden v. Milstead Towing & Storage, Nos. 09-21-00043-CV, 09- 21-00044-CV, 09-21-00045-CV, 2022 Tex. App. LEXIS 2988, at *4 (Tex. App.—Beaumont May 5, 2022, no pet.). 19Id. 20Id. 21Tex. R. App. P. 38.1(i); see also ERI Consulting Eng’rs, Inc. v.

Swinnea, 318 S.W.3d 867, 880 (Tex. 2010) (“The Texas Rules of Appellate Procedure require adequate briefing.”). 15 Is the Evidence Insufficient to Support the Attorney’s Fee Award?

In issue four, Amy complains the evidence is insufficient to support

the attorney’s fees the trial court awarded against her in the trial on

remand. Because Amy’s brief provides us with a very short argument, we

quote her entire argument on this issue.

During the attorney fees trial, Appellees were allowed to present more documentary evidence to support their attorney fee award. Some serious discrepancies were noted and pointed out to the trial court. For instance, without much explanation, Appellees added more than $100,000 in attorney fees from the amounts awarded in the first appeal. This circumstance was pointed out to the trial court and was even noted by her. Still, the trial court awarded with some deletions most of the attorney[’]s fees requested. In the declaratory judgment context, these fees must be more than reasonable and necessary, they must be equitable and just. Bocquet [v. Herring, 972 S.W.2d 19,] 20 [(Tex. 1998)]. Instead, these fees are unjust and overreaching. Appellant submits that the award is still legally and factually insufficient.

Bocquet provides the Court with the appropriate standard, but Amy

doesn’t provide the Court with cites to the testimony she is relying upon

in the Reporter’s Record or to any of the exhibits that the trial court

admitted into evidence. 22 Nor does Amy explain why Earl’s testimony and

the exhibits the trial court considered are insufficient proof of the

22Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). 16 reasonableness and necessity of the attorney’s fees under the lodestar

method given the pervasive role Amy agrees the declaratory judgment

claims had in the case. Here, the record includes a great deal more

evidence supporting the trial court’s award than the record we had when

we decided Shouldice I. 23

Even if we believed the evidence the trial court considered in the

trial on remand was insufficient to support the amount the trial court

awarded in the judgment, it is simply not the Court’s role to explain to

Amy why the evidence is insufficient to support the award. 24 Rather, the

Rules of Appellate Procedure require adequate briefing to support the

argument to avoid the argument from being waived. 25 We hold Amy

waived her fourth issue by failing to provide us with a brief that complies

with Rule of Appellate Procedure 38.1(i). 26

23Shouldice I, 2020 Tex. App. LEXIS 622, at *16-17. 24Golden, 2022 Tex. App. LEXIS 2988, at *4. 25See ERI Consulting, 318 S.W.3d at 880. 26Tex. R. App. P. 38.1(i) (“the brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record”). 17 Conclusion

Having concluded that Amy’s issues either lack merit or were

waived, the trial court’s judgment on remand is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on October 14, 2022 Opinion Delivered February 16, 2023

Before Golemon, C.J., Horton and Johnson, JJ.