Opinion issued February 13, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00982-CV
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MONCIE RASMUS, JR., Appellant
V.
KANETRA WOODARD, HEIR, AND ESTATE OF ROBERT GREGORY
PATRICK, DECEASED, Appellees
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Case No. 401484401
MEMORANDUM OPINION
The Estate of Robert Gregory Patrick and Kanetra Woodard, as heir of the
estate, (“Appellees”) sued A. Charles Gaston, the independent administrator of the
estate, and Moncie Rasmus, Jr., the attorney of Gaston, to recover $13,802.75 in
funeral expenses paid by Woodard and $11,780.50 in attorney’s fees Rasmus was
paid by the estate. The trial court granted Appellees’ traditional motion for
summary judgment. The judgment recites that Rasmus and Gaston are liable for
the funeral expense, the fees Rasmus was paid by the estate, and the attorney’s fees
and costs incurred by Appellees in bringing the suit, which total $36,623. Rasmus
appeals, arguing that the trial court erred in granting summary judgment. We
reverse and remand.
Background
On November 10, 2010, Patrick died intestate, leaving two heirs, his spouse,
Linda Raye Taylor, and his daughter, Woodard. On June 1, 2011, Gaston was
appointed as independent administrator of Patrick’s estate.
It is undisputed that Gaston, on behalf of the estate and with estate funds,
paid Rasmus $11,780.50 for attorney’s fees and expenses on December 14, 2011.
On March 15, 2012, Woodard filed a sworn statement seeking reimbursement of
$13,802.75 that she spent on Patrick’s funeral. On April 12, 2012, Woodard and
the estate sued Rasmus and Gaston for negligent management of estate funds to
recover $13,802.75 in funeral expenses, and to recover the $11,780.50
“overpayment” of attorney’s fees to Rasmus. They also sought $5,283 in
attorney’s fees and court costs incurred in bringing the suit. On April 23, 2012,
Rasmus filed an application to approve work performed on behalf of his client,
Gaston, and the payment of $11,780.50 attorney’s fees.
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On June 13, 2012, Appellees filed a Traditional Motion for Final Summary
Judgment on the funeral expenses and Rasmus’s attorney’s fees. 1 The motion also
requested that the trial court award Appellees an additional $5,757 in attorney’s
fees and court costs incurred in bringing the suit. With regard to the $11,870.50
“overpayment” of fees to Rasmus, Appellees argued that Rasmus should forfeit the
payment because it was excessive. Appellees attached no evidence to support this
contention. Rather, they argued the fees were excessive because (1) they exceeded
ten percent of the gross value of the estate and (2) Rasmus was not the independent
administrator.
With regard to the funeral expenses, the motion stated that “there is no
genuine issue of material fact that the Independent Administrator is fully
responsible for the Class I, Funeral Expense” of $13,802.75. The evidence
attached to the motion was a copy of the “filing of sworn statement supporting
claim against estate,” which Woodard had filed with the court and which included
the receipt reflecting that the funeral expenses had been paid in full.
Rasmus’s response stated that Woodard had previously urged the same
motion and that the trial court “should take judicial knowledge of the fact that there
are numerous issues of fact to be resolved in this matter.” In support of his
1
Appellees also filed a motion “for final no-evidence summary judgment” on the
same day. The trial court entered an order granting only the traditional motion.
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response, Rasmus filed his own affidavit in which he averred: “there are numerous
fact issues to be resolved in this matter.”
On July 24, 2012, the trial court held a hearing on the motion. The trial
court stated that he was granting the traditional summary judgment motion because
Rasmus did not file a proper response containing evidence to raise a fact issue. On
the same day, the trial court entered an order granting the traditional motion for
final summary judgment. It awarded Appellees $25,583 for the funeral expenses
and excessive attorney fees paid to Rasmus, and $11,040 in reasonable attorney
fees and court costs, for a total award of $36,623 against Rasmus and Gaston. On
August 22, 2012, Rasmus filed a motion for new trial, which the trial court denied
after a hearing. Rasmus appealed.2
Discussion
Rasmus challenges the summary judgment on the basis that Woodard and
the estate failed to meet their summary judgment burden. He contends that the trial
court erroneously entered a default summary judgment.
A. Standard of Review
In a traditional summary judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick
2
Gaston did not appear at the summary judgment hearing and did not appeal.
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v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). “A plaintiff
moving for summary judgment must conclusively prove all essential elements of
its claim.” Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986)).
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary
judgment motion, we must (1) take as true all evidence favorable to the nonmovant
and (2) indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003)); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).
B. Analysis
Appellees sued in negligence. Rasmus contends that the trial court erred in
granting summary judgment on Appellees’ claim for funeral expenses because
Appellees failed to conclusively prove that Rasmus owed a duty to Woodard or the
estate and because Rasmus, who was the attorney for the estate’s independent
administrator, cannot be liable for funeral expenses as a matter of law. Rasmus
also contends that the trial court erred in ordering the forfeiture of Rasmus’s
attorney’s fees and awarding Appellees attorney’s fees and costs of $11,040.
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As a preliminary matter, Appellees argue that Rasmus has waived any
complaint by filing an inadequate summary judgment response that did not adduce
any evidence. A party may bring a no-evidence motion to assert that “there is no
evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i).
But here, Appellees could file only a traditional motion for summary judgment
because they had the burden of proof on the claims for which they requested
summary judgment. See Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277,
280 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing TEX. R. CIV. P. 166a(i))
(“A party cannot move for a no-evidence summary judgment on claims on which
that party has the burden of proof.”). Thus, Appellees could not obtain a summary
judgment based on Rasmus’s failure to adduce evidence in his response. Rather,
Appellees had to conclusively prove the elements of their claims to be entitled to
summary judgment. See TEX. R. CIV. P. 166a(a), (c); Jones, 710 S.W.2d at 60
(plaintiff entitled to summary judgment on cause of action if conclusively proves
all essential elements of claim).
1. Did Woodard conclusively establish that Rasmus was personally
liable for funeral expenses she incurred?
In his first issue, Rasmus contends that the trial court erred in holding
Rasmus liable for the funeral expenses because he is not liable for them as a matter
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of law. Rasmus contends that Woodard could not sue Rasmus for the funeral
expenses under a negligence theory because she was not in privity with him.
“The elements of a negligence cause of action are the existence of a legal
duty, a breach of that duty, and damages proximately caused by the breach.”
Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (quoting IHS
Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004)). Thus, a legal duty must exist to prevail on a negligence claim. See id.
In moving for summary judgment on the funeral expenses, Appellees relied
on sections 320A, 322, and 378B of the Texas Probate Code. Section 320A of the
Texas Probate Code provides that:
When personal representatives pay claims for funeral expenses and
for items incident thereto, such as tombstones, grave markers, crypts
or burial plots, they shall charge the whole of such claims to the
decedent’s estate and shall charge no part thereof to the community
share of a surviving spouse.
TEX. PROBATE CODE § 320A. Section 322 classifies a claim against an estate for
funeral expenses, not exceeding $15,000, as a Class 1 claim, which has priority of
payment over other claims against the estate. TEX. PROBATE CODE § 322. Section
322 also provides that the funeral expenses must be “approved by the court.” See
id. Section 378B provides that “all expenses incurred in . . . funeral expenses . . .
shall be charged against the principal of the estate.” TEX. PROBATE CODE
§ 378B(a).
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While these provisions establish that funeral expenses up to $15,000 receive
priority over other claims, they do not create a duty on the part of Rasmus to pay
them. And Appellees presented no evidence that Rasmus was in privity with
Woodard or owed a duty to Woodard by which he could be personally liable for
the funeral expenses that Woodard paid. Because Appellees sued in negligence,
they were required to demonstrate that Rasmus owed a duty to pay the funeral
expenses. See Goss, 392 S.W.3d at 113. Because Appellees did not do so, we
conclude that the trial court erred in granting summary judgment on that claim.
See Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 442
(Tex. App.—Houston [14th Dist.] pet. denied) (holding that “[b]ecause it is
undisputed that the [plaintiffs] were not represented by [attorney-defendants], any
claim that the [plaintiffs] were damaged by [defendants’] negligence, if any, during
the course of the firm’s representation of [defendant’s client] fails as a matter of
law”).
2. Did the estate’s payment of Rasmus’s fees violate section 241 of
the Probate Code?
In his second issue, Rasmus contends that the trial court erred in granting
summary judgment for forfeiture of Rasmus’s attorney fees and expenses on the
ground that his fees and expenses were excessive and violated section 241 of the
Texas Probate Code. See TEX. PROBATE CODE § 241.
Section 241 provides that
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Executors, administrators, and temporary administrators shall be
entitled to receive a commission of five per cent (5%) on all sums
they may actually receive in cash, and the same per cent on all sums
they may actually pay out in cash, in the administration of the estate . .
. however, that in no event shall the executor or administrator be
entitled in the aggregate to more than five per cent (5%) of the gross
fair market value of the estate subject to administration.
Id.
Appellees asserted in their summary judgment motion that Rasmus’s
attorney’s fees and expenses were excessive because they exceeded five percent of
the gross value of the estate, in violation of Section 241. But Section 241 applies
to executors and administrators, and did not apply to Rasmus because he was not
an executor or an administrator of Patrick’s estate. See id. Accordingly, Appellees
failed to conclusively prove that Rasmus’s fees should be forfeited on the ground
that they violate Section 241. See id. Appellees did not articulate any other basis
for forfeiture of the $11,780.50 fee paid to Rasmus, and they adduced no evidence
demonstrating that Rasmus’s attorney’s fees were excessive. Accordingly, we
conclude that the trial court erred in granting summary judgment on that claim.
See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660
(Tex. 1995) (concluding pleadings are not competent summary judgment evidence,
even if sworn or verified); Oko v. Oguntope, No. 01-06-00589-CV, 2007 WL
852662, at *5–6 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding evidence
supported finding that attorney’s fees not excessive because party contesting
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attorney’s fees failed to address reasonableness factors for attorney’s fees or
provide evidence to support argument that fees were excessive).
3. Did the trial court err in awarding attorney’s fees to Appellees?
Rasmus also challenges the $11,040 award of attorney’s fees and court costs.
Having concluded that the trial court erred in granting summary judgment against
Rasmus on the claims for funeral expenses and forfeiture of Rasmus’s attorney’s
fees, we also reverse the trial court’s judgment holding Rasmus liable for
Appellees’ attorney’s fees. See State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 885,
895 (Tex. App.—Dallas 2001, pet. denied) (reversing trial court’s judgment
awarding attorney’s fees because trial court improperly granted summary judgment
in favor of that party).
Conclusion
We reverse the trial court’s judgment against Rasmus and remand the cause
for further proceedings.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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