in the Estate of Thomas Dwayne Erwin

• Court: Court of Appeals of Texas
• Decided: January 18, 2018
• Docket: 07-16-00130-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-16-00130-CV ________________________

IN THE ESTATE OF THOMAS DWAYNE ERWIN, DECEASED

On Appeal from the County Court of Law No. 2 Randall County, Texas Trial Court No. 2015-210-P; Honorable Ronnie Walker, Presiding

January 18, 2018

MEMORANDUM OPINION Before QUINN, C.J., AND CAMPBELL AND PIRTLE, JJ.

Appellant, Eric J. Pullen, appeals from an award of $850 in attorney ad litem fees

for his representation of the interests of heirs whose names or locations were unknown

in this estate proceeding. On appeal, Pullen asserts the trial court abused its discretion

by: (1) failing to award $1,399.12 in attorney ad litem fees in accordance with an

agreement that purportedly complied with Rule 11 of the Texas Rules of Civil Procedure, TEX. R. CIV. P. 11,1 and (2) reducing his attorney ad litem fees without following or

applying any known standard for awarding attorney’s fees. We affirm.

BACKGROUND

In May 2015, Thomas Erwin passed intestate leaving behind a sister, Toni

Chapman, and two sons, Travis Dwayne Erwin and Michael Scott Erwin. On June 10,

2015, Chapman filed an Application for Letters of Administration, and on June 30, 2015,

Travis filed an Application for Independent Administration Pursuant to Texas [Estate]

Code § 401.003, or, in the Alternative, for Dependent Administration and Application to

Declare Heirship. At the same time, Travis also filed a Motion for Appointment of Attorney

Ad Litem pursuant to the applicable provisions of the Texas Estates Code.2 On July 1,

2015, Pullen was appointed attorney ad litem and he subsequently filed an original

answer. On July 22, 2015, the proceeding was transferred from the Randall County Court

to the Randall County Court at Law Number 2.

In September 2015, Pullen filed a report indicating Thomas had two children by

marriage who survived him, Michael (forty-eight years of age) and Travis (forty-two years

of age). In his report, he represented that he had contacted two independent witnesses

who confirmed these facts of heirship.

On January 13, 2016, a pretrial hearing was held. At the hearing, it appeared

Erwin’s estate contained approximately $30,000 in real estate and personal property. The

primary issue was whether the estate should reimburse Chapman for the full amount due

1 Throughout the remainder of this memorandum opinion, we will refer to Rule 11 of the Texas

Rules of Civil Procedure simply as “Rule 11.”

2 See TEX. EST. CODE ANN. § 202.009 (West 2014). See also id. at § 53.104(a).

2 on her brother’s funeral or a lesser amount. The court referred the parties to mediation

where they subsequently settled their differences.

Regarding Pullen’s ad litem appointment, the following exchange occurred

between the trial court and Pullen:

COURT: Now the ad litem, Mr. Pullen, do you really have a role here? There’s no question about unknown heirs, is there? PULLEN: Correct, Your Honor. COURT: So you really shouldn’t even be involved, should you? PULLEN: Correct, Your Honor. COURT: Would you like me to sign an order terminating? PULLEN: Yes, Your Honor. * * * COURT: I understand the Court appointed you. I’m just inquiring. Okay. Alright. So have you submitted a bill? PULLEN: No, Your Honor. COURT: All right. So why don’t you do that. See if the lawyers will agree to the amount, and submit that to me, with an order terminating your ad litem responsibility.

(Emphasis added).

In January 2016, Pullen submitted his Application to Pay Attorney Ad Litem Fees

requesting that he be awarded $1,399.12 (6.2 hours at $225 per hour and $4.12 for

expenses/reimbursements). Attached to his Application was an exhibit containing dates,

descriptions of services, length of services in hourly increments, and amounts charged

such as “7/7/2015 Reviewed court documents, 0.30, [$]67.50” and “7/27/2015

Teleconference with D. Bradley, 0.20, [$]45.00.”

3 On February 10, a hearing on Pullen’s Application was held and the trial court

subsequently issued an Order Approving Attorney’s Fees Filed and Executed February

10, 2016, wherein the court inked through Pullen’s figure of $1,399.12 and handwrote

“$850 (RW).” Thereafter, Pullen filed an Attorney Ad Litem Motion to Reform Judgment

Pursuant to 329b, Motion to Vacate February 10, 2016 Order Approving Attorney’s Fees

Issued by Court, and Motion to Enforce Rule 11 Agreement Order Approving Attorney’s

Fees.

On March 1, Pullen filed a Notice of Filing of Rule 11 Agreement with a proposed

Order Approving Attorney’s Fees attached. The proposed Order was signed by the

attorneys for the parties-in-chief who indicated they agreed to the entry of an order

awarding Pullen $1,399.12 in attorney ad litem fees.

At a hearing on March 11, the trial court orally granted Pullen’s Motion in part and

offered him the opportunity to put on evidence related to his Application. Pullen offered

his previous Application and exhibit. In support of his Motion, Pullen’s counsel primarily

asserted that Pullen was entitled to $1,399.12 in fees because attorneys for the parties-

in-chief had signed a Rule 11 agreement in the form of a court order wherein they agreed

the estate would pay Pullen $1,399.12 in fees. The trial court cited its power to oversee

attorney’s fee awards and evaluated whether Pullen’s fees were reasonable, necessary,

rendered in good faith, and within the trial court’s discretionary authority. In its order filed

April 1, the trial court granted that portion of Pullen’s motion seeking the opportunity to

put on evidence at the hearing, affirmed its previous order of February 10, 2016, awarded

$850 in attorney ad litem fees to Pullen to be taxed as costs to the estate, and discharged

Pullen as attorney ad litem. This appeal followed.

4 APPLICABLE LAW

The Texas Estate Code provides for the appointment of “an attorney ad litem in a

proceeding to declare heirship to represent the interests of heirs whose names or

locations are unknown.” See TEX. EST. CODE ANN. § 202.009(a) (West 2014). See also

id. at § 53.104(a). Such an attorney ad litem is “entitled to reasonable compensation for

services provided in the amount set by the court.” Id. at § 53.104(b) (emphasis added).

The determination of the proper award for attorney ad litem fees is within the sound

discretion of the trial court. Alford v. Whaley, 794 S.W.2d 920, 924-25 (Tex. App.—

Houston [1st Dist.] 1990, no writ). An “appellate court may reverse a trial court for abuse

of discretion only if, after searching the record, it is clear the trial court’s decision was

arbitrary and unreasonable.” City of Houston v. Woods, 138 S.W.3d 574, 580 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (citing Simon v. York Crane & Rigging Co., 739

S.W.2d 793, 795 (Tex. 1987)). Further, “the party complaining of an abuse of discretion

bears the burden of bringing forth the record showing such abuse; in the absence of the

record, the reviewing court must assume the evidence before the trial court was adequate

to support the decision.” Id.

In general, the reasonableness and necessity of attorney’s fees, the recovery of

which is authorized by statute, are fact questions; Bocquet v. Herring, 972 S.W.2d 19, 21

(Tex. 1998), and “[w]ith regard to fact questions, the abuse-of-discretion standard is more

akin to a clear-error standard.” In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex.

2016). Thus, when the resolution of factual issues or matters are committed to the trial

court’s discretion, the reviewing court may not substitute its judgment for that of the trial

court and the party with the burden of proof “must establish that the trial court could

5 reasonably have reached only one decision.” In re Caballero, 441 S.W.3d 562, 572 (Tex.

App.—El Paso 2014, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992)).

The reasonableness of attorney ad litem fees is controlled by the same factors

used to determine whether attorney’s fees are reasonable in general. Alford, 794 S.W.2d

at 925 (citing Simon, 739 S.W.2d at 794). These factors are: (1) the time and labor

involved; (2) the nature and complexities of the case; (3) the amount of money or the

value of the property or interest involved; (4) the extent of the responsibilities assumed

by the attorney; (5) whether other employment is lost by the attorney because of the

undertaking; (6) the benefits resulting to the client from the services; (7) the contingency

or certainty of compensation; and (8) whether the employment is casual or for an

established or constant client. Id. (citing Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714

S.W.2d 144, 148-49 (Tex. App.—Houston [1st Dist.] 1986, no writ)).

ANALYSIS

Pullen asserts the trial court abused its discretion by failing to enter an order

awarding ad litem fees of $1,399.12 in accordance with an agreement that purportedly

complied with Rule 11. Alternatively, he contends the trial court reduced his fees without

following or applying any known standard for awarding attorney’s fees.

In effect, Pullen asks this court to ignore the plain language of the applicable

statute; TEX. EST. CODE ANN. § 53.104(b) (West 2014), and allow the parties to decide

what is reasonable for attorney ad litem fees in an estate proceeding. This we cannot do.

The statute plainly states that the compensation for an attorney ad litem will be “set by

6 the court”; id., and in construing statutes, we must ascertain and give effect to the

Legislature’s intent as expressed by the plain language of the statute. City of Rockwall

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Nowhere does the applicable statute

indicate that attorney ad litem fees may be set by agreement of the parties or a Rule 11

agreement; see TEX. EST. CODE ANN. § 53.104(b) (West 2014), and Rule 11 does not

contain any language that would trump that section.3 See Rule 11.

Assuming without deciding that the agreement here complied with Rule 11,

however, we would also be required to find that the agreement obligated the trial court to

perform “a ministerial duty” before the agreement would necessitate enforcement by the

trial court. Scott-Richter v. Taffarello, 186 S.W.3d 182, 190-91 (Tex. App.—Fort Worth

2006, pet. denied) (citing ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303,

309 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). A ministerial duty is one that

exists “where the law prescribes and defines the duty to be performed with such precision

and certainty as to leave nothing to the exercise of the discretion or judgment . . . but

where the act to be done involves the exercise of discretion or judgment, it is not to be

deemed merely ministerial.” City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.

1993) (quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)). The trial court’s duty here

was not ministerial as Pullen suggests because the trial court was required to exercise its

discretion in setting and approving an award of fees to the attorney ad litem. Id.

3 Rule 11 states that, “[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered in writing.” TEX. R. CIV. P. 11.

7 Accordingly, having reviewed the record, we find that the trial court properly

considered whether Pullen’s fee request was reasonable and, in its discretion, awarded

$850. We also find the trial court did not abuse its discretion in determining the fee award.

Pullen’s issues one and two are overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice