In the Estate of John Raburn Ford v. the State of Texas
CourtTexas Court of Appeals, 10th District (Waco)
Date FiledOctober 29, 2026
Docket10-25-00313-CV
StatusPublished
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Full Opinion
Court of Appeals
Tenth Appellate District of Texas
10-25-00313-CV
In the Estate of John Raburn Ford, Deceased
On appeal from the
County Court at Law of Bosque County, Texas
Judge Luke Giesecke, presiding
Trial Court Cause No. P08636
JUSTICE WESTERFELD delivered the opinion of the Court.
MEMORANDUM OPINION
Renee Harriott appeals from the trial courtâs âOrder on Motion for
Judicial Discharge of Independent Administrator and Closing of the Estateâ
rendered in the probate of the will of John Raburn Ford. In four issues,
Harriott, the sole beneficiary of Fordâs estate, complains of the awards of
administrator compensation and attorneyâs fees. We modify both awards and
affirm the trial courtâs order as modified.
BACKGROUND
Harriott applied for probate of Fordâs will, which named her independent
executrix. The trial court found Harriott disqualified to be independent
executrix and appointed Tyler Green independent administrator of the Estate.
Less than three months later, Harriott, through her attorney, Ken Wigginton,
filed a motion to have Green removed from that position claiming Green failed
to properly fulfill his fiduciary obligations. After Green replied, Harriott
replied, sent notice of an emergency hearing on her motion, filed a
supplemental motion to remove Green, and moved for expedited limited
discovery in support of her motion to remove Green. Harriottâs complaints
against Green ranged from professional to personal.
Green, through his attorney D. Scott Cain, filed a motion for sanctions
against Wigginton, asserting the motion to remove Green was frivolous and an
abuse of the judicial process. He contended that Wiggintonâs motions
constituted harassment and bullying tactics. A single hearing was held on May
27, 2025 addressing the motion to remove Green and the motion to sanction
Wigginton, after which the trial court denied both motions.
Two days after that hearing, Harriott filed a motion for assessment and
approval of compensation of the administrator, requesting a hearing at which
Green could prove entitlement to administratorâs fees and attorneyâs fees. She
also filed another motion for sanctions asserting that the motion to sanction
Wigginton was brought in bad faith.
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On May 28, 2025, the trial court approved Greenâs inventory and
appraisement of the Estate indicating the total value of Estate property was
$228,079.06. Green filed a motion for judicial discharge of the independent
administrator and closing of the Estate. Green filed his second motion for
sanctions against Wigginton in response to a motion entitled âAgreed Motion
to Authorize Payment of Attorneyâs Feesâ that Wigginton filed on the day after
the hearing on the first motion for sanctions. In the motion, Wigginton
requested the court authorize payment of the fees Wigginton charged Harriott,
asserting that Green was in agreement with the payment. Green, in his motion
for sanctions, alleged there was no such agreement.
Harriott objected to Greenâs motion for discharge, the requested
administratorâs fees, and the requested administratorâs attorneysâ fees.
Harriott requested distribution of the remaining funds to her. She also
requested Greenâs removal and appointment of a successor administrator. In
an additional response, she asserted that Cain should be investigated for
violation of the Texas Disciplinary Rules of Professional Conduct. In a
separate motion, Harriott moved to strike attorneysâ fees claimed by Green.
She also filed an amended motion for sanctions against Green.
On June 24, 2025, a hearing was held on Harriottâs motion for
assessment and approval of administratorâs compensation, Greenâs motion for
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discharge of independent administrator, and the motions for sanctions. The
court made no rulings at the hearing, instead taking all matters under
advisement.
After that hearing, the court had some questions and concerns about
some citations contained in Wiggintonâs briefing. The court issued an order to
appear and show cause why Wigginton should not be sanctioned for violations
of the Texas Disciplinary Rules of Professional Conduct and for failure to verify
generative AI outputs in motions and other documents submitted to the court.
At the show cause hearing, the trial court decided against sanctioning
Wigginton for his use of AI and denied both competing motions for sanctions.
The court rendered an order granting Greenâs motion for judicial discharge and
closing of the Estate. The court orally approved $5,701.98 as Greenâs
administrator fees and attorneysâ fees in the amount of $22,961.80.
Additionally, the court ordered Green to pay Harriott the remaining funds held
by the Estate. On August 12, 2025, the court signed an order approving
Greenâs motion for discharge, ordering Green discharged from any liability
involving matters relating to the administration of the Estate, approving legal
expenses, awarding Green $5,701.98 for administratorâs fees, and ordering
Green to pay Harriott all remaining funds. Thereafter, Harriott filed her
notice of appeal.
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ADMINISTRATOR COMPENSATION
Harriott contends, in her first issue, that the trial court abused its
discretion by awarding Green compensation of $5,701.98. Specifically, she
complains that Green failed to present evidence segregating compensable
services from time spent responding to disputes, failed to identify reasonable
fees for core administrative tasks, and failed to present contemporaneous
records, logs or testimony quantifying his fiduciary efforts. Further, she
alleged that Green inappropriately relied on a conclusory percentage-of-estate
calculation.
Standard of Review
We apply an abuse of discretion standard to determine whether the trial
court acted correctly in applying statutory provisions. Estate of Allen, 658
S.W.3d 772, 777 (Tex. App.âEl Paso 2022, no pet.). A trial court abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law, or if it clearly fails to correctly analyze
or apply the law. In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.
2005) (orig. proceeding) (per curiam).
Applicable Law
The Texas Estates Code provides that, if the court finds the
administrator has taken care of and managed an estate in compliance with the
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statutes, an administrator is entitled to receive a five percent commission on
all amounts that the administrator actually receives or pays out in cash in the
administration of the estate. TEX. EST. CODE ANN. § 352.002(a). The
commission may not exceed more than five percent of the gross fair market
value of the estate and is not allowed for certain specified items, such as funds
on hand at the time of death, life insurance proceeds, or cash paid to heirs in
their capacity as such. Id. § 352.002(b). The trial court may allow an
administrator reasonable compensation for the administratorâs services,
including unusual efforts to collect funds or life insurance, if: (1) the
administrator manages a farm, ranch, factory, or other business of the estate;
or (2) the compensation calculated under Section 352.002 is unreasonably low.
Id. § 352.003(a).
Discussion
At the June hearing, Green described in detail the work he did in
administering the Estate and provided supporting documentation. Green paid
out the following amounts on behalf of the estate: $1,080 for insurance,
$1,781.55 for property taxes, $15,158.60 to Wigginton for his attorneyâs fees
incurred in representing Harriott, and $19,056.42 to the law firm of Cain &
Kiel, P.C. for legal fees and expenses incurred on behalf of the Estate. At the
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June 24 hearing, Green testified that he paid an additional $3,905.38 in
attorneysâ fees to Cain & Kiel.
In the motion and at the hearing, Green asked the court to approve
$5,701.98 as administratorâs fees, which is 2.5% of the value of the Estate.1 At
the hearing, Green described his actions as administrator. While he was
unable to provide a figure for a reasonable fee for any specific event or action
he undertook for the Estate, he assured the court that 2.5% of the value of the
Estate is a fair and reasonable amount for the administratorâs fee. He testified
that what constitutes a reasonable charge is speculative because he âdid not
know the estate and what is at play here.â Finally, on redirect, he agreed with
his counsel that he looked at the totality of the amount of time spent working
on the Estate to determine that the amount of the administratorâs fee should
be 2.5% of the value of the Estate, and that is a reasonable fee.
Estates Code Section 352.002(a) provides that when a court finds the
administrator has managed the Estate in compliance with the code, he is
entitled to a five percent commission on amounts he receives and pays out in
administration of the Estate. Id. § 352.002(a); Walling v. Hubbard, 389 S.W.2d
581, 585-89 (Tex. App.âHouston 1965, writ dismâd w.o.j. & writ refâd n.r.e.)
(listing monies received and paid out on which executor is entitled to receive a
1 Indeed, the record shows that the value of the Estateâs total assets is $228,079.06. And 2.5% of that
amount is $5,701.98.
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commission). The intent of this formula is to provide fair and reasonable
compensation. In re Est. of Roots, 596 S.W.2d 240, 243 (Tex. App.âAmarillo
1980, no writ).
Here, Green paid out $40,981.95. The commission is not allowed for
receiving the testatorâs cash on hand or funds held in a financial institution or
a brokerage firm, collecting the proceeds of a life insurance policy, or for paying
out cash to an heir. TEX. EST. CODE ANN. § 352.002(b). The record shows that
all cash received by Green is of the type disallowed by Section 352.002(b).
Therefore, Green was entitled to a commission of five percent on $40,981.95,
the amount he paid out; that is, he was entitled to $2,049.10 as his
administratorâs commission. Id. § 352.002(a), (b). Green did not apply for
approval of compensation above the statutorily fixed five percent of the value
of the Estate on the ground either that he managed a farm, ranch, factory or
business of the Estate or that the commission was unreasonably low. Id. §
352.003(a); See Weatherly v. Martin, 754 S.W.2d 790, 793-94 (Tex. App.â
Amarillo 1988, writ denied).
Accordingly, the trial court abused its discretion by misapplying the
applicable sections of the Estates Code. See In re Cerberus Cap. Mgmt, L.P.,
164 S.W.3d at 382. Green was entitled to $2,049.10 for his administratorâs fee,
not $5,701.98. However, Harriottâs arguments that the fee award should be
In the Estate of Ford Page 8
reversed due to Greenâs failure to segregate compensable fiduciary duties or
present evidence of the reasonable value of his work are without merit. If the
court finds the administrator took care of and managed an estate in compliance
with the Estates Code, as was the case here, the administrator is entitled to a
five percent commission as set out in Section 352.002. See TEX. EST. CODE
ANN. § 352.002. Green testified as to the tasks he performed in administering
the Estate, the court found that it was satisfied by the final accounting, and
the amount of compensation is set by statute. We sustain Harriottâs first issue
because Green was not entitled to the amount of $5,701.98, as it was
erroneously based on a percentage of the Estate assets.
ATTORNEYSâ FEES
In her second issue, Harriott contends the trial court erred in approving
attorneysâ fees as Estate expenses because Green did not segregate the fees
incurred by type of work done, did not prove fees charged were reasonable and
necessary, and did not prove fees charged to defend his removal were charged
in good faith. She also asserts that the billing proof was legally insufficient
because it does not present hours worked or âtask-by-task time proof.â
In her third issue, Harriott contends the evidence is legally and factually
insufficient to support the attorneysâ fee award because the evidence does not
In the Estate of Ford Page 9
show reasonable hours and rates tied to specific tasks. She further argues that
the billing records were supported only by conclusory attorney testimony.
In her fourth issue, Harriott asserts that Green failed to segregate
compensable and non-compensable fees and, therefore, this Court cannot
determine if hours spent on a given category were reasonable.
Standard of Review
We review a trial courtâs award of attorneysâ fees for an abuse of
discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012); In re
Est. of Vrana, 335 S.W.3d 322, 329 (Tex. App.âSan Antonio 2010, pet. denied).
When the proper standard of review is abuse of discretion and the appellant
challenges the legal and factual sufficiency of the evidence, we must determine
whether the probate court had sufficient information upon which to exercise
its discretion and whether the probate court erred in its application of
discretion. In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex. App.â
San Antonio 2011, pet. denied). In our sufficiency review, we use the
traditional standards of review for legal and factual sufficiency. Gardner v.
Gardner, 229 S.W.3d 747, 751 (Tex. App.âSan Antonio 2007, no pet.).
A party who challenges the legal sufficiency of the evidence to support
an issue upon which it did not have the burden of proof at trial must
demonstrate on appeal that there is no evidence to support the adverse finding.
In the Estate of Ford Page 10
Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).
Evidence is legally sufficient if it would enable reasonable and fair-minded
people to reach the verdict under review. Id. If there is any evidence of
probative force to support the finding, i.e. more than a scintilla, we will
overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388
(Tex. 2005) (per curiam).
If a party is attacking the factual sufficiency of the evidence to support
an adverse finding on an issue on which the other party had the burden of
proof, the attacking party must demonstrate that there is insufficient evidence
to support the adverse finding. Capps v. Nexion Health at Southwood, Inc.,
349 S.W.3d 849, 855 (Tex. App.âTyler 2011, no pet.). The verdict should be
set aside only if it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)
(per curiam).
Applicable Law
A personal representative of an estate is entitled to necessary and
reasonable expenses incurred by the representative in preserving, safekeeping,
and managing the estate; collecting or attempting to collect claims or debts;
and recovering or attempting to recover property to which the estate has a title
or claim; and reasonable attorneysâ fees necessarily incurred in connection with
In the Estate of Ford Page 11
the proceedings and management of the estate. TEX. EST. CODE ANN. §
352.051. An independent executor who defends an action for removal in good
faith is entitled to an award for his expenses and attorneysâ fees incurred. Id.
§ 404.0037(a).
Where an administrator is also an attorney, he is entitled to reasonable
attorneyâs fees for his legal services. In re Est. of Stanton, 202 S.W.3d 205, 209
(Tex. App.âTyler 2005, pet denied). However, he must separately identify the
services he performed as administrator and the services he performed as
attorney for the estate. Id. at 209-10.
Texas courts apply the lodestar method to determine what constitutes
reasonableness and necessity when awarding attorneysâ fees. Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). The
fact finderâs starting point for calculating an attorneysâ fee award is
determining the reasonable hours worked multiplied by a reasonable hourly
rate, the product of which is the base fee or lodestar. Id. The fee claimant
bears the burden of providing sufficient evidence on both counts. Id. Sufficient
evidence includes evidence of (1) particular services performed, (2) who
performed those services, (3) approximately when the services were performed,
(4) the reasonable amount of time required to perform the services, and (5) the
reasonable hourly rate for each person performing such services. Id. Charges
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for duplicative, excessive, or inadequately documented work should be
excluded. Id. at 498-99.
The base lodestar calculation usually includes consideration of at least
the following relevant factors to determine a reasonable time and rate:
the time and labor required, the novelty and
difficulty of the questions involved, the skill
required to perform the legal service properly, the
fee customarily charged in the locality for similar
legal services, the amount involved, the experience,
reputation, and ability of the lawyer or lawyers
performing the services, whether the fee is fixed or
contingent on results obtained, the uncertainty of
collection before the legal services have been
rendered, and results obtained.
Id. at 500 (quoting Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d
812, 818 (Tex. 1997)); see also TEX. DISCIPLINARY RULES PROFâL CONDUCT R.
1.04. However, courts are not required to receive evidence on each factor before
awarding attorneysâ fees. Halsey v. Halter, 486 S.W.3d 184, 189 (Tex. App.â
Dallas 2016, no pet.) (mem. op.).
Discussion
Green graduated from law school in 2018 and practiced some probate
law, doing administrative work for about three years. Since working at Cain
& Kiel, he has spent a lot more time working with administrations. However,
this is the first time he has been an estate administrator. At the May hearing,
he explained that he keeps track of segments of time, not an amount charged.
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At the June hearing on Greenâs motion for discharge, Green testified that
the Estate hired his law firm to defend the Estate. As an attorney, Greenâs
hourly rate was $285 when the administration began but, by the time of trial,
it was $325. The hourly rate for his partners, Brent Kiel and Cain, is $365 or
$385. He requested $22,955.80 for attorneysâ fees for work done for the Estate.
Scott Cain, who has been a licensed attorney for twenty-five years,
testified, explaining he has a background in litigation, estate planning, and
probate law, including probate contests. He stated that he is familiar with fees
charged in Bosque County and that he charges $365 an hour and Kiel charges
$325 an hour. Green bills $285 for attorney time. Cain testified that those
rates are reasonable and necessary.
Cain is the custodian of records at the law firm. He introduced Exhibit
9, which contains invoices to the Estate. He explained that his firm uses a
software program to create client invoices. They enter the date work was done,
the initials of the person making the entry, a description of services, and the
amount charged. Although the invoice does not state the amount of time spent
on the services, he explained that the number of hours worked can be
determined by dividing the amount billed by the attorneyâs hourly rate. Cain
testified that they âno chargedâ all services that were an administrative
function.
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Initially, we address Harriottâs contention that Green did not prove that
his defense of the removal action was in good faith. An administrator acts in
good faith when he subjectively believes his defense is viable, if that belief is
reasonable in light of existing law. Estate of Nunu, 542 S.W.3d 67, 81-82 (Tex.
App.âHouston [14th Dist.] 2017, pet. denied). Good faith is established as a
matter of law if reasonable minds could not differ in concluding from the
undisputed facts that the person in question acted in good faith. Id.
At the June 24 hearing, Cain explained that the total amount billed for
expenses and attorneysâ fees flows from attempts by the Estate and
administrator to defend and preserve the Estate. Cain testified that Wigginton
created havoc in an attempt to get his fees paid, exhibiting extremely
aggressive and hostile behavior. Much of Cainâs work was in response to
Wiggintonâs actions. In support of this testimony, Exhibit 9 contains references
to Harriottâs motion to remove Green as administrator, Harriottâs motion for
discovery, Greenâs motion for sanctions against Wigginton, motions and
pleadings filed by Harriott, and communications from Wigginton.
Harriottâs second motion to remove Green was filed on June 17, 2025.
Much of the work on the Estate had been completed prior to that date.
Wigginton repeatedly complained that he had not been paid for the work he
did on behalf of Harriott. The record shows that Cain sent a check to Wigginton
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for those fees by certified mail dated June 6, 2025. The record includes the
United States Postal Service tracking history for that letter, showing it arrived
at the Fort Worth Distribution Center on June 16 and was out for delivery that
day. Based on the totality of the partiesâ actions, we determine that reasonable
minds could not differ in concluding that Green acted in good faith. See id.
We next consider Harriottâs fourth issue in which she asserts that Green
failed to segregate compensable and non-compensable work. Exhibit 9
contains detailed entries of administrative work done by Green along with the
notation âno chargeâ in the amount charged column. In contrast, each entry
for legal work done includes a description of the work along with its associated
charge. This obvious distinction satisfies the requirement to segregate
compensable and non-compensable work. Accordingly, we overrule Harriottâs
fourth issue.
In her third issue, Harriott asserts, within her attack on the sufficiency
of the evidence to support the attorneysâ fee award, that Cainâs testimony was
conclusory. Cain described his credentials and personal knowledge of the facts
of the case. He also explained his opinions about the reasonableness of the
rates and total fees charged. Therefore, contrary to Harriottâs assertion, his
testimony was not conclusory. See Windrum v. Kareh, 581 S.W.3d 761, 768
In the Estate of Ford Page 16
(Tex. 2019) (held that a conclusory statement asserts a conclusion with no basis
or explanation).
Exhibit 9 contains itemized descriptions of work done, the date it was
performed, who did the work, and the amount charged. Cainâs testimony
supplied the hourly rates charged for each attorney. Considered together, the
record shows the amount of time required to perform the services billed.
Exhibit 9 reflects a balance of $19,056.42 due for attorneysâ fees on June 6,
2025 and additional charges of $3,905.38 assessed on June 24, totaling
$22,961.80. Of those combined charges, $21,824.30 are for expenses and
attorneysâ fees attributable to work done by Green and Cain. Those charges
are supported by detailed invoices. Regarding the award of attorneysâ fees to
Green and Cain, the testimony and invoices together satisfy the requirements
of Rohrmoos Venture. See Rohrmoos Venture, 578 S.W.3d at 498-500. Thus,
the evidence is legally and factually sufficient to support an attorneysâ fee
award of $21,824.30. See Exxon Corp., 348 S.W.3d at 215; Cain, 709 S.W.2d at
176. We overrule Harriottâs second and third issues to the extent she
complains of attorneysâ fees awarded to Cain & Kiel for work done by Green
and Cain, totaling $21,824.30.
Exhibit 9 shows invoiced charges of $487.50 and $650 for âBK.â Green
identified BK as Brent Kiel, a partner in the firm of Cain & Kiel. The record
In the Estate of Ford Page 17
contains no evidence of Kielâs experience or qualifications. To be entitled to
attorneysâ fees, an attorney must present evidence of his experience,
reputation, and ability to perform the legal services involved. See Rohrmoos
Venture, 578 S.W.3d at 500 (explaining that the base lodestar calculation
includes certain factors). This evidence is necessary to show that the fees
sought for this individual were reasonable. See Aleman v. Standard Cas. Co.,
No. 01-23-00572-CV, 2025 WL 2445991, at *24 (Tex. App.âHouston [1st Dist.]
August 26, 2025, no pet.) (mem. op.). Accordingly, the evidence is legally
insufficient to support the portion of the attorneysâ fee award attributable to
work done by Kiel. Id. at 25. Because the evidence is legally insufficient to
support $1,137.50 of the total attorneysâ fee award, the trial court abused its
discretion in awarding this amount to Cain & Kiel. See Exxon Corp, 348
S.W.3d at 215; Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). When the
evidence is legally insufficient, the appropriate disposition is to render
judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex.
1992); All Seasons Window & Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490,
505 (Tex. App.âTexarkana 2005, no pet.). We sustain Harriottâs second and
third issues in part because the trial court erred in awarding attorneysâ fees in
the amount of $1,137.50 for work done by Kiel.
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CONCLUSION
The trial court abused its discretion by failing to correctly apply Estates
Code Section 352.002. Because the record includes the facts needed to correct
the judgment, we modify the trial courtâs award of administrative fees to Green
to delete the award of $5,701.98 and in its place award Green administrative
fees in the amount of $2,049.10. See TEX. R. APP. P. 43.2(b); Shamoun v.
Shough, 377 S.W.3d 63, 78 (Tex. App.âDallas 2012, pet. denied) (held the
appellate court is empowered to modify the trial courtâs judgment when it has
the necessary information available to do so). Furthermore, because the trial
court abused its discretion with regard to a portion of the attorneysâ fees
awarded to Cain & Kiel, we modify the trial courtâs order to reflect an
attorneysâ fee award of $21,824.30, which is the total fee award minus the
$1,137.50 award of attorneysâ fees for Kiel. We affirm the remainder of the
order as modified.
ANDREA WESTERFELD
Justice
OPINION DELIVERED and FILED: October 29, 2026
Before Chief Justice Johnson,
Justice Harris, and
Justice Westerfeld
Affirm as modified
CV06
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