in the Estate of William Thomas Bell

• Court: Court of Appeals of Texas
• Decided: September 15, 2021
• Docket: 07-20-00220-CV
• Status: Published

Opinion

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

No. 07-20-00220-CV ________________________

IN THE ESTATE OF WILLIAM THOMPSON BELL, DECEASED

On Appeal from the County Court at Law Walker County, Texas Trial Court No. 9271PR; Honorable Tracy Sorensen, Presiding

September 15, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellants, Sharon Hammond and Thomas Vincent Bell, appeal from the trial

court’s order removing them as co-executors of their father’s estate and appointing a

dependent administrator. 1 They challenge the order through two points, both alleging the

trial court abused its discretion in removing them as co-executors without making

1 Originally appealed to the Tenth Court of Appeals, sitting in Waco, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. necessary findings and in removing them based on a motion to show cause that did not

seek their removal as the co-executors. We will reverse the trial court’s order and remand

for further proceedings consistent with the opinion herein.

BACKGROUND

Decedent, William Thompson Bell, died on July 28, 2017. Bell was the founder

and majority shareholder of WTBI, a Texas corporation. During his professional life, Bell

accumulated a significant estate valued in excess of $12.5 million. He also secured over

fifty patents, many held in his own name. At the time of his death, interests in those

patents constituted a significant but unvalued asset that belonged to his estate.

Bell was survived by three of his five children, Sharon Hammond, Thomas Vincent

Bell, and Elaine Bell. Bell’s will and codicil provided extensive guidance for the

administration of his estate. Bell’s estate plan generally provided that his property,

including his shares in WTBI, should be distributed in equal shares amongst his children.

Bell’s codicil divides his WTBI stock shares amongst his children and his ex-wife, and

also gives sixty shares of stock to a longtime friend and business partner.

Elaine initiated the probate proceeding on October 17, 2017, when she filed her

application to admit Bell’s will and first codicil into probate. She requested that the trial

court appoint Sharon and Vincent to serve as co-executors as set forth in the will. The

trial court admitted the will and codicil into probate and appointed Sharon and Vincent as

co-executors on November 20, 2017. They qualified as co-executors that day.

Sharon and Vincent began administering the estate but quickly encountered

difficulties collecting information regarding Bell’s WTBI stock and patents. They filed

2 several motions requesting more time to complete the inventory of Bell’s estate, partly

due to pending litigation between WTBI and Hunting Titan Ltd./Hunting Titan, Inc.

regarding patent rights that was hindering their ability to secure information required to

value the patent assets. 2 The trial court extended the deadline to file the inventory to July

15, 2020.

On January 23, 2020, Elaine, Bonnie Bell, Scott Berter, and Joseph Brasic

(beneficiaries)3 filed a petition requesting the removal of Sharon and Vincent as co-

executors of Bell’s estate. The beneficiaries objected to Sharon and Vincent’s attempts

to recover Bell’s interests in the patents and in securing a proper valuation of Bell’s

interests in WTBI stock. They expressed a desire to quickly sell their shares of stock

under the terms of the shareholder agreement and they objected to Sharon and Vincent’s

efforts to obtain WTBI’s financial information to determine a fair purchase price for WTBI’s

stock. The beneficiaries complained that the estate had been pending for more than two

years and that the estate’s shares of WTBI stock were not sold to James Rairigh, the self-

appointed president of WTBI.

Sharon and Vincent filed their original answer and asserted specific denials,

affirmative defenses, and special exceptions to the petition. They also contested the

sufficiency of the grounds and the legal standards supporting removal and defended the

fees incurred in collection WTBI’s financial records, arguing for the necessity of collecting

that information to obtain a proper valuation of the estate’s interests in WTBI.

2 This litigation began three years before Bell’s death and concluded two years after his death. 3 These individuals were beneficiaries of Bell’s estate. 3 On May 18, 2020, the beneficiaries filed a motion to show cause, asking the trial

court to compel Sharon and Vincent to prepare and file the estate’s inventory. A hearing

on the motion was held on June 12, 2020. On June 16, 2020, the trial court issued the

Order Removing Independent Co-Executors and Appointing Successor Dependent

Administrator. That order reads, in part, as follows:

The Court heard evidence and found that the Respondents were personally served with citation; that the Movants are persons interested in the Estate; that Respondents’ grossly excessive spending of estate assets constitutes gross mismanagement; and that Respondents failed to file an inventory pursuant to Sections 308.004(b), 309.051 and 361.052(a)(2) of the Texas Estates Code.

(Cross-outs contained in original).

Thus, the only finding in the court’s order was that Sharon and Vincent’s “excessive

spending of estate assets constitutes mismanagement.” Through this appeal, Sharon

and Vincent seek reinstatement of their positions as co-executors of Bell’s estate.

STANDARD OF REVIEW

We review a trial court’s decision to remove an executor under an abuse of

discretion standard. In re Estate of Clark, 198 S.W.3d 273 275 (Tex. App.—Dallas 2006,

pet. denied); Lee v. Lee, 47 S.W.3d 767, 786 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and

without reference to any guiding rules and principles. Lee, 47 S.W.3d at 786 (citing

Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997)).

4 ISSUE ONE—ABUSE OF DISCRETION IN REMOVING CO-EXECUTORS WITHOUT MAKING NECESSARY FINDINGS

Via their first issue, Sharon and Vincent argue the trial court abused its discretion

when it removed them without making necessary findings that they grossly mismanaged

or grossly misused the estate’s assets.

Sections 404.003 and 404.0035 of the Texas Estates Code set forth the reasons

an independent executor may be removed. Those provisions provide as follows:

The probate court, on the court’s own motion or on the motion of any interested person, and without notice, may remove an independent executor appointed under this subtitle when:

(1) the independent executor cannot be served with notice or other processes because:

(A) the independent executor’s whereabouts are unknown;

(B) the independent executor is eluding service; or

(C) the independent executor is a nonresident of this state without a designated resident agent; or

(2) sufficient grounds appear to support a belief that the independent executor has misapplied or embezzled, or is about to misapply or embezzle, all or part of the property committed to the independent executor’s care.

TEX. ESTATES CODE ANN. § 404.003.

(b) The probate court, on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place set in the notice, may remove an independent executor when:

(1) the independent executor fails to make an accounting which is required by law to be made;

(2) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties; 5 (3) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor’s fiduciary duties; or

(4) the independent executor becomes incapable of properly performing the independent executor’s fiduciary duties due to a material conflict of interest.

TEX. ESTATES CODE ANN. § 404.0035.

Courts have previously held that “gross misconduct” and “gross mismanagement”

included, at a minimum: (1) any willful omission to perform a legal duty; (2) any intentional

commission of a wrongful act; and (3) any breach of a fiduciary duty that results in actual

harm to a beneficiary’s interests. In the Estate of Miller, 243 S.W.3d 831, 840-41 (Tex.

App.—Dallas 2008, no pet.) (citing Sammons v. Elder, 940 S.W.2d 276, 283 (Tex. App.—

Waco 1997, writ denied)). However, in Kappus v. Kappus, the Supreme Court set forth

an apparently less strict standard, stating the use of the adjective “gross,” which means

“glaringly obvious” or “flagrant,” indicates that “something beyond ordinary misconduct

and ordinary mismanagement is required to remove an independent executor.” In re

Estate of Jones, Nos. 13-11-00664-CV, 13-11-00692-CV, 2012 Tex. App. LEXIS 7423,

at *12 (Tex. App.—Corpus Christi Aug. 27, 2012, no pet.) (mem. op.) (citing Kappus v.

Kappus, 284 S.W.3d 831, 836 (Tex. 2009)).

Sharon and Vincent argue that the beneficiaries asked the trial court to make

findings that they failed to provide an inventory pursuant to sections 308.004(b), 309.015,

and 361.052(a)(2) of the Texas Estates Code and that they grossly mismanaged the

estate’s property. However, the trial court struck the language in the Order pertaining to

both of those findings. Consequently, the only finding in the court’s order was that Sharon 6 and Vincent’s “excessive spending of estate assets constitutes mismanagement.”

Sharon and Vincent contend this shows the trial court made the “opposite findings” and

thus, they should not have been removed as co-executors of Bell’s estate. Moreover,

they assert that even though the trial court found they mismanaged the estate’s assets

through excessive spending, this finding was an impermissible basis on which to remove

them as co-executors.

Sharon and Vincent argue on appeal that the “true reason the Co-Executors were

removed was the trial court’s expressed concern that it could be personally liable for

waste of the Estate’s assets.” They note the trial court “repeatedly expressed this concern

before and after the show cause hearing, and declared its preference to appoint a third

party to administer the Estate.” The trial court stated that it believed it was better to “get

an independent third party to get involved and actually get things done, whether people

want it done or not.” This, Sharon and Vincent argue, is not a legally permissible basis

for their removal under either section 404.003 or 404.0035 of the Texas Estates Code.

The beneficiaries disagree, arguing that the evidence before the trial court included

expenditures by Sharon and Vincent of over $180,000.00 over a span of nine months,

just in attorney’s fees for one attorney. They argue that such expenditures are

unnecessary in most cases, especially one like this which was an uncontested estate

administration. They questioned also Sharon and Vincent’s payment of $375,000.00 in

tax liability after retaining H&R Block instead of a certified public accountant. Further, the

beneficiaries allege that Sharon and Vincent “showed a pattern of a lack of complete

transparency” when they “arbitrarily redacted check images” for the estate’s December

31, 2019 bank account statement while leaving other check images unredacted.

7 While Sharon and Vincent argue that the trial court made findings against gross

mismanagement when it struck the language in the Order as set forth above, the

beneficiaries argue that the trial court’s finding that their “excessive spending of estate

assets constitutes mismanagement” clearly indicates a breach of Sharon and Vincent’s

fiduciary duties to the estate that resulted in actual harm to the beneficiaries’ interests.

That finding, they assert, is a finding of gross mismanagement under Texas case and

statutory law even if the word “gross” was not used or included in the written order.

The beneficiaries argue that ample evidence existed to support the trial court’s

removal of Sharon and Vincent as co-executors. They note that nearly three years had

passed since Bell died and two and a half years since Sharon and Vincent were appointed

as co-executors. Further, Sharon and Vincent were granted five extensions to file the

inventory for the estate. Despite these extensions, only an interim inventory had been

filed and that inventory was not approved by the trial court. The beneficiaries also point

out the trial court’s concern over leaving them as co-executors to oversee a sizeable

estate when little had been accomplished in the previous two and a half years. The court

noted Bell would not have executed a nineteen-page will and codicils and “would not have

continued to try to make sure his estate was taken care of if he knew someone was going

to get appointed and then sit on it for three years.” Lastly, the beneficiaries note the

testimony of Sharon and Vincent. Sharon testified she had been signing documents

without reading them and Vincent suffered a brain injury and had some difficulty in

answering certain questions. All of this, the beneficiaries contend, raised red flags for the

trial court and constituted sufficient evidence for removal of Sharon and Vincent as co-

executors of Bell’s estate.

8 In their reply brief, Sharon and Vincent argue that the trial court abused its

discretion when it removed them as co-executors of Bell’s estate for alleged “excessive

spending” because that is not a proper ground for removal and that such spending cannot

constitute gross mismanagement per se as asserted by the beneficiaries. They re-urge

their argument that by striking certain language in the Order, the trial court “made findings

that Co-Executors did not grossly mismanage the Estate’s assets.” They contend also

that no such finding can be imputed. Sharon and Vincent argue that the beneficiaries’

reliance on In re Estate of Miller, 243 S.W.3d at 840-41, for that proposition is inapposite

to the facts of this case.

In In re Estate of Miller, the court ordered the removal of the independent executor

for gross mismanagement and entered findings of fact noting that the delay in the

administration and closing of the estate constituted gross mismanagement of the affairs

of the estate. In re Estate of Miller, 243 S.W.3d at 841, n.2. Sharon and Vincent argue

that no such findings were made here and further that the trial court struck all language

in the Order pertaining to gross mismanagement. They note also that the beneficiaries

did not allege any breach of fiduciary duty in their Motion to Show Cause or in any other

pleading before the trial court. Consequently, the beneficiaries failed to meet their burden

for removal under sections 404.003 or 404.0035 of the Texas Estates Code and the trial

court erred in entering the Order removing Sharon and Vincent as co-executors.

Based on the language of the trial court’s order, the only finding it made was that

Sharon and Vincent’s “excessive spending of estate assets constitutes mismanagement.”

It clearly did not find their actions to be “gross.” Nor did it make any findings regarding

the adequacy or lack of an inventory. Thus, we are left with determining whether there

9 were sufficient grounds to support a belief that Sharon and Vincent misapplied all or part

of the property committed to their care. TEX. ESTATES CODE ANN. § 404.003(2). We agree

with the beneficiaries and with the trial court that Sharon and Vincent spent significant

funds from the estate paying attorneys for investigation that might not be relevant. We

agree also that Sharon and Vincent have done little to administer the estate in the years

in which they have been appointed. However, because under Kappus, any ground

supporting removal must be “glaringly obvious” or “flagrant” and “something beyond

ordinary misconduct and ordinary mismanagement” must be shown to support removal

of an independent co-executor, we cannot find that burden was met here. Kappus, 284

S.W.3d at 836. We sustain Sharon and Vincent’s first issue.

ISSUE TWO—ABUSE OF DISCRETION IN REMOVING CO-EXECUTORS IN RESPONSE TO MOTION TO SHOW CAUSE

In their second issue, Sharon and Vincent contend the trial court abused its

discretion when it removed them in response to a motion to show cause that did not

request their removal and therefore granted relief in excess of the parties’ pleadings.

They argue that the basis for the show cause hearing was a contention that Sharon and

Vincent had failed to produce an inventory. The motion to show cause did not request

the removal of Sharon and Vincent as co-executors of Bell’s estate and therefore, they

assert, the trial court abused its discretion in removing them. In their reply brief, Sharon

and Vincent distinguish the case relied on by the beneficiaries, In re Estate of Washington,

262 S.W.3d 903, 906-07 (Tex. App.—Texarkana 2008, no pet.), arguing that the case

“merely affirmed that a court can remove an executor for failing to make an accounting

and did not address the removal of an executor for gross mismanagement.” They again

argue that the finding made by the trial court was that “[Co-Executors’] spending of estate

10 assets constitutes mismanagement” and that this finding was insufficient for removal

under the applicable statutes, irrespective of whether that removal was on motion of the

beneficiaries or sua sponte by the trial court.

The motion to show cause in the record states as the basis for relief the failure of

Sharon and Vincent to file an inventory. 4 While we agree that the record indicates they

did file an interim inventory in advance of the extended deadline in which to do so, we

find that the trial court was within its power, on its own motion and authority, to remove

them as co-executors if the proper grounds were supported. See TEX. ESTATES CODE

ANN. §§ 404.003; 404.0035; In re Estate of Washington, 262 S.W.3d at 906. As such, we

cannot agree with Sharon and Vincent’s argument that the trial court granted relief in

excess of the beneficiaries’ pleadings. Accordingly, we overrule their second issue.

CONCLUSION

We reverse the trial court’s order removing Sharon and Vincent as co-executors

of Bell’s estate and remand for further proceedings.

Patrick A. Pirtle Justice

4 We also acknowledge that the motion cited sections 308.004(b), 309.051, and 361.052(a)(2) of

the Texas Estates Code. Those sections apply to dependent administrators rather than independent executors such as Sharon and Vincent. Nevertheless, we find the record indicates Sharon and Vincent filed an interim inventory on May 26, 2020, in advance of the extended July 15, 2020 deadline. 11