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 court’s “Order on Motion for Judicial Discharge of Independent Administrator and Closing of the Estate” rendered in the probate of the will of John Raburn Ford. In four issues, Harriott, the sole beneficiary of Ford’s estate, complains of the awards of administrator compensation and attorney’s fees. We modify both awards and affirm the trial court’s order as modified. BACKGROUND Harriott applied for probate of Ford’s 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. Harriott’s 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 Wigginton’s 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 administrator’s fees and attorney’s fees. She also filed another motion for sanctions asserting that the motion to sanction Wigginton was brought in bad faith. In the Estate of Ford Page 2 On May 28, 2025, the trial court approved Green’s 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 “Agreed Motion to Authorize Payment of Attorney’s Fees” 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 Green’s motion for discharge, the requested administrator’s fees, and the requested administrator’s attorneys’ fees. Harriott requested distribution of the remaining funds to her. She also requested Green’s 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 attorneys’ fees claimed by Green. She also filed an amended motion for sanctions against Green. On June 24, 2025, a hearing was held on Harriott’s motion for assessment and approval of administrator’s compensation, Green’s motion for In the Estate of Ford Page 3 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 Wigginton’s 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 Green’s motion for judicial discharge and closing of the Estate. The court orally approved $5,701.98 as Green’s administrator fees and attorneys’ 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 Green’s 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 administrator’s fees, and ordering Green to pay Harriott all remaining funds. Thereafter, Harriott filed her notice of appeal. In the Estate of Ford Page 4 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.—El 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 In the Estate of Ford Page 5 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 administrator’s 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 attorney’s 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 In the Estate of Ford Page 6 June 24 hearing, Green testified that he paid an additional $3,905.38 in attorneys’ fees to Cain & Kiel. In the motion and at the hearing, Green asked the court to approve $5,701.98 as administrator’s 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 administrator’s fee. He testified that what constitutes a reasonable charge is speculative because he “did not know the estate and what is at play here.” 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 administrator’s 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.—Houston 1965, writ dism’d w.o.j. & writ ref’d 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 Estate’s total assets is $228,079.06. And 2.5% of that amount is $5,701.98. In the Estate of Ford Page 7 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.—Amarillo 1980, no writ). Here, Green paid out $40,981.95. The commission is not allowed for receiving the testator’s 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 administrator’s 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.— 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 administrator’s fee, not $5,701.98. However, Harriott’s arguments that the fee award should be In the Estate of Ford Page 8 reversed due to Green’s 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 Harriott’s 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. ATTORNEYS’ FEES In her second issue, Harriott contends the trial court erred in approving attorneys’ 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 “task-by-task time proof.” In her third issue, Harriott contends the evidence is legally and factually insufficient to support the attorneys’ 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 court’s award of attorneys’ 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.—San 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.— 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.—San 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.—Tyler 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 attorneys’ 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 attorneys’ fees incurred. Id. § 404.0037(a). Where an administrator is also an attorney, he is entitled to reasonable attorney’s fees for his legal services. In re Est. of Stanton, 202 S.W.3d 205, 209 (Tex. App.—Tyler 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 attorneys’ fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). The fact finder’s starting point for calculating an attorneys’ 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 In the Estate of Ford Page 12 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 PROF’L CONDUCT R. 1.04. However, courts are not required to receive evidence on each factor before awarding attorneys’ fees. Halsey v. Halter, 486 S.W.3d 184, 189 (Tex. App.— 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. In the Estate of Ford Page 13 At the June hearing on Green’s motion for discharge, Green testified that the Estate hired his law firm to defend the Estate. As an attorney, Green’s 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 attorneys’ 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 attorney’s hourly rate. Cain testified that they “no charged” all services that were an administrative function. In the Estate of Ford Page 14 Initially, we address Harriott’s 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.—Houston [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 attorneys’ 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 Cain’s work was in response to Wigginton’s actions. In support of this testimony, Exhibit 9 contains references to Harriott’s motion to remove Green as administrator, Harriott’s motion for discovery, Green’s motion for sanctions against Wigginton, motions and pleadings filed by Harriott, and communications from Wigginton. Harriott’s 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 In the Estate of Ford Page 15 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 parties’ actions, we determine that reasonable minds could not differ in concluding that Green acted in good faith. See id. We next consider Harriott’s 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 “no charge” 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 Harriott’s fourth issue. In her third issue, Harriott asserts, within her attack on the sufficiency of the evidence to support the attorneys’ fee award, that Cain’s 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 Harriott’s 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. Cain’s 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 attorneys’ 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 attorneys’ fees attributable to work done by Green and Cain. Those charges are supported by detailed invoices. Regarding the award of attorneys’ 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 attorneys’ fee award of $21,824.30. See Exxon Corp., 348 S.W.3d at 215; Cain, 709 S.W.2d at 176. We overrule Harriott’s second and third issues to the extent she complains of attorneys’ 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 “BK.” 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 Kiel’s experience or qualifications. To be entitled to attorneys’ 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.—Houston [1st Dist.] August 26, 2025, no pet.) (mem. op.). Accordingly, the evidence is legally insufficient to support the portion of the attorneys’ 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 attorneys’ 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.—Texarkana 2005, no pet.). We sustain Harriott’s second and third issues in part because the trial court erred in awarding attorneys’ fees in the amount of $1,137.50 for work done by Kiel. In the Estate of Ford Page 18 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 court’s 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.—Dallas 2012, pet. denied) (held the appellate court is empowered to modify the trial court’s 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 attorneys’ fees awarded to Cain & Kiel, we modify the trial court’s order to reflect an attorneys’ fee award of $21,824.30, which is the total fee award minus the $1,137.50 award of attorneys’ 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 In the Estate of Ford Page 19