Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00103-CV
IN THE MATTER OF THE ESTATE OF William D. STEWART, Jr.
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2017-PC-0986
Honorable Veronica Vasquez, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: May 19, 2021
AFFIRMED
The underlying cause of action arises from a dispute between siblings about the
administration of their father’s estate, which was worth over five million dollars. After a jury trial,
Appellant Wayne Stewart was found to have breached his fiduciary duties in administering his
father’s estate. The trial court’s judgment ordered him to pay his sister’s attorney’s fees. On appeal,
he argues the trial court erred (1) in basing its judgment on his sister’s breach of fiduciary duty
claim; (2) in awarding his sister all of her attorney’s fees and costs; (3) in denying his motion for
new trial; and (4) in refusing to grant the relief he requested under section 405.003 of the Texas
Estates Code. We affirm.
04-20-00103-CV
BACKGROUND
On February 26, 2017, William D. Stewart, Jr. (“William”) passed away, leaving a will.
Pursuant to his will, his son Wayne Stewart (“Wayne”) was appointed independent executor. The
will provided for the residuary estate, which constituted most of the estate, to be divided between
Wayne and his siblings Jennifer Stewart (“Jennifer”), William Stewart III (“Trey”), and Steven
Stewart (“Steven”). The record reveals that during the administration of the estate, Wayne
repeatedly did not disclose facts to Jennifer, which caused her to mistrust the manner in which he
was distributing the estate.
At the time of her father’s death, Jennifer was living in the family home, having moved
back in with her elderly parents in 2015 to care for them. Jennifer’s parents paid her approximately
$1600 per month to be their caregiver. After Jennifer’s mother passed away on April 5, 2015, she
stayed in the family home to care for her father who had multiple health problems. Wayne also
came to the family home daily to help his father.
After his wife passed away, eighty-nine-year-old William executed his Last Will and
Testament on August 20, 2015, appointing his son Wayne as independent executor and granting
Wayne the power to (1) sell, lease, or mortgage the whole or any part of his estate, at public or
private sale, with or without notice, as he “shall deem best”; (2) hold, manage, and operate any
property, business, or enterprise that William may have owned at the time of his death; and (3)
borrow money on behalf of the estate. The will also granted Wayne all rights and powers granted
to trustees under the Texas Estates Code.
The will made three specific bequests: (1) $50,000 in cash to William’s other daughter
Nancy Lynn Stewart; (2) all of William’s real property interests in Medina County, Texas, to
Wayne; and (3) all of William’s real property interests in DeWitt County, Texas, to William’s son
Steven. “[A]ll the rest, residue and remainder of [William’s Estate], of every kind and character,
-2-
04-20-00103-CV
real, personal and mixed, and wherever situated” was bequeathed “in equal shares to” his children
Wayne, Trey, Steven, and Jennifer. William’s residuary estate was comprised primarily of (1)
personal property; (2) land located in Goliad County, Texas (“the Goliad Property”); (3) the family
home in Windcrest, Texas (“the family home”); and (4) cash and securities. The Goliad Property
consisted of two contiguous tracts—one 272-acre tract and a second 272.3-acre tract. William
owned an undivided 3/4 interest in the 272-acre tract, which was appraised at $580,700, and he
owned the entire 272.3-acre tract, which was appraised at $801,400. The same day William signed
his will, he also executed a Statutory Durable Power of Attorney that appointed Wayne as his
attorney-in-fact. The next day, on August 21, 2015, William signed documents designating Wayne
as beneficiary of certain Merrill Lynch retirement accounts, which were designed to pass outside
of probate.
On February 26, 2017, William passed away. At the time of his death, Jennifer was still
living in the family home and caring for William. On March 17, 2017, Wayne, who had been
named independent executor in the will, filed an Application for Probate of Will and for Letters
Testamentary in probate court. On April 3, 2017, the will was admitted to probate, and Wayne was
appointed independent executor. Wayne, however, did not communicate any information about
the will to Jennifer. She testified she had to go to the courthouse just to obtain a copy of her father’s
will.
Jennifer also testified that while she was still living in the family home, Wayne, Steven,
and their wives arrived at the home unannounced on multiple occasions and removed valuable
items without saying anything to Jennifer. According to Jennifer, on March 27, 2017, before
Wayne had been appointed independent executor, he discovered that Jennifer had taken “a small
clock that he had wanted.” She testified Wayne “came after [her] and [was] screaming and yelling,
‘You better return that clock to me.’” Jennifer testified that because she was scared of Wayne, she
-3-
04-20-00103-CV
called the police. During another incident on April 28, 2017, Jennifer testified that Wayne and
other family members arrived at the family home where she was living and began removing items:
And they were mad at me, and they were blocking me, keeping me from going
down the hallway. And I was trying to get away from them and trying to get by,
and they were blocking me to prevent me from going to my bedroom, the bedroom
I was using. And I was trying to get to my bedroom to call—to get to my phone to
call the police, and they were keeping me from it, getting to that bedroom. And my
brother had threatened: “If you call the police, you are going to jail.”
The 911 phone call was admitted in evidence. During the call, Wayne can be heard yelling in the
background. When asked why she had been scared, Jennifer testified:
That particular day, they didn’t approve of me taking a couple [of] items, and they
were getting mad and kept me from—got furious. And the two brothers kept me
from going down the hallway to my bedroom, and I was trying to get away from
them. And they were preventing me, and he came through the door, busted through
the door, and was threatening me, bullying me.
Jennifer was asked what was left after they had removed all the items they wanted:
There was left over outdated furniture, nominal items, a bunch of trash, [and] dirt
that I had to clean up. Mostly I gave away some items, took some items to the
Goodwill, trying to clear out the house, but there was nothing of value left.
With regard to the incidents at the family home with Jennifer, Wayne testified that during
one of those incidents on March 22, 2017 (before he was appointed independent executor by the
court), he did not remove any personal property. However, he admitted he had taken his father’s
papers because he “was going through all of his [father’s] papers, separating what was junk and
what wasn’t.” Wayne also testified there had never been a family meeting to talk about the will
and distribution of the estate with Jennifer.
Jennifer testified she was left in the dark regarding the administration of her father’s estate.
According to Jennifer, Wayne never showed her any appraisals at all—none for the real property
and none for the personal property. The evidence at trial showed that on May 22, 2017, Wayne, as
-4-
04-20-00103-CV
independent executor, deeded the family home to Jennifer. Jennifer testified that she found out
much later that Wayne had deeded the house to her:
I received a letter from Michael Brenan, Wayne’s lawyer, asking if I wanted to
receive the [family home], and I wrote him back a letter saying I was interested in
that house; however, I would have to agree on the value amount of the house and
to keep me updated, please, on the house. And the next thing I know, he sent me a
letter next and deeded the house over to me. I didn’t even know he was going to do
that. He deeded the [family] house over to me, and it didn’t have any details. I didn’t
know if I was given the house or charged for it. So I had called Michael Brenan,
and he informed me that my brother, Wayne, was going to charge me $160,000 for
that house, and I said I didn’t know about it. And he said, “Well, you said you were
interested.” And I said that I needed to agree on the amount.
Jennifer later clarified during her testimony that she was not “charged” for the house and that
Wayne had deducted $160,000 from her share of the residuary estate. During his testimony, Wayne
admitted that he never informed Jennifer he was going to deed the family house to her.
Jennifer also testified that sometime in April or May 2017, she received a check in the mail
from the estate for $50,000. According to Jennifer, “[i]t just had ‘distribution’ on the check. That
was it.” Jennifer testified that because she had not received any information from Wayne about the
estate, she wrote him a letter requesting a statement showing an accounting of the estate. She did
not receive a statement showing an accounting as requested; instead, Wayne’s lawyer sent her a
letter, stating that Wayne had received a request for an accounting from her. The letter informed
her that “[t]here are different types of an accounting mentioned in the law” and asked her “to send
[to the lawyer] the law reference for the type of accounting that [she was] requesting.” Jennifer
testified that because she is not a lawyer and did not have a legal background, she hired a lawyer.
With regard to William’s real property, he owned over 400 acres in Goliad, Texas, which
had been in the family for generations. Jennifer’s brother Steven testified that the Goliad Property
is unimproved land, has a lot of oak trees on it, and has been in the family for over 150 years.
Steven also testified the land has “a lot of brush” and can only be used for “a cow-calf operation.”
-5-
04-20-00103-CV
William not only owned the surface estate at the time of his death, he also owned rights to the
mineral estate. Steven testified that Goliad County was a nonproducing area and that the appraisal
had valued the mineral rights at $200/acre. Wayne testified the property was “invaluable” to him.
Jennifer testified likewise.
On May 30, 2017, Steven signed a permit for American Electric Power (“AEP”) to enter
the Goliad Property so that it could perform some survey work about a possible easement on the
Goliad Property. Steven testified at trial that he owned property next to the Goliad Property, and
AEP had reached out to him in 2014 and 2015 about possibly needing to put in an electric line in
that area. Steven testified that he did not tell Jennifer anything about a possible easement on the
Goliad Property.
On July 26, 2017, Jennifer filed a notice of appearance in probate court.
On August 16, 2017, Mark Barnes, an appraiser, inspected the Goliad Property. Steven
testified that he hired Barnes on Wayne’s behalf. Steven testified he paid Barnes’s fee and was
then reimbursed by the estate. On August 22, 2017, AEP sent a letter to Steven’s address. The
letter was addressed to Wayne, Trey, Steven, and Jennifer. In the letter, AEP offered to purchase
a transmission line easement at a price of $7,500 per acre. Wayne never disclosed this offer to
Jennifer. Steven testified he never sent a copy of the letter to Jennifer. Additionally, Wayne did
not provide the AEP offer letter, or other information about the possible easement, to Barnes so
that it could be included in Barnes’s appraisal.
Between August and December 2017, Wayne and his brothers negotiated with AEP
regarding the easement. According to Steven, he did most of the communicating with AEP and
was the one who got AEP to increase its offer to $11,250 per acre. Wayne testified he first knew
about the possible AEP easement six to eight months before his father passed away.
-6-
04-20-00103-CV
On September 6, 2017, Barnes issued his appraisal report of the Goliad Property. He valued
Tract 1 of the property at $2,950 per acre and Tract 2 at $3,800 per acre. Wayne used Barnes’s
values to determine Jennifer’s equal share of the Goliad Property. Jennifer testified that by October
2017, Wayne still had not communicated with her, and she could not understand why she had not
received any more distributions from the estate. She testified that she knew her father had over $2
million in Merrill Lynch assets, other stocks and bonds, and the Goliad Property.
On December 19, 2017, Wayne, as independent executor, deeded the Goliad Property to
himself, Trey, and Steven. Days later, he asked AEP to remove Jennifer from the easement
document. Jennifer testified Wayne did not tell her about this transfer or send her a copy of the
deed. According to Jennifer, at the end of 2017, the only distributions she had received were the
family home (which had been valued by Wayne at $160,000) and a $50,000 check.
On January 4, 2018, Wayne, Trey, and Steven executed easements over the Goliad Property
to AEP for a purchase price of $11,250 per acre. Wayne testified he did so with the knowledge
that he was going to receive $73,000 from AEP and that Jennifer would not receive anything.
Wayne did not put the value of the AEP easement in any of the inventories or accountings of the
estate. He testified that he did not do so because the AEP easement was not part of the estate. Also
on January 4, 2018, Wayne filed an Inventory, Appraisement, and List of Claims in probate court.
Jennifer testified her attorney received a copy but the document was very conclusory and did not
contain any detailed information.
That same month, Jennifer was contacted by the Goliad Appraisal District and learned that
Wayne had deeded the Goliad Property to himself, Trey, and Steven. She also learned “that there
was an easement through the property, an easement, and that my brothers had received around
$258,000 for that easement.” According to Jennifer, while she had received distributions in the
amount of $210,000 (the family home and the $50,000 check), she calculated her brothers had
-7-
04-20-00103-CV
each received over $500,000 from the residuary estate (1/3 of the value of the Goliad Property, as
well as 1/3 of the value for the AEP easement, and $50,000 check). Jennifer testified “there was
no explanation [and] no information.” Jennifer testified, “I desperately wanted to find out when
my father’s estate was going to be resolved and when I would get my inheritance.”
On January 12, 2018, the trial court approved the inventory, appraisement, and list of
claims filed by Wayne. On March 6, 2018, Wayne filed a First Amended Inventory, Appraisement,
and List of Claims, which the trial court approved on March 14, 2018. On March 22, 2018, Jennifer
filed a Motion for Court Appointment of Independent Appraiser, in which she asserted the Goliad
Property had been appraised “substantially below market value” and requested that the court
appoint an appraiser of her choice to perform an independent appraisal of the Goliad Property. At
trial, Jennifer testified that with regard to the AEP easement, she had learned it had been valued at
$11,250/acre whereas the part of the Goliad Property distributed to her brothers was being valued
at $3,900/acre. Jennifer believed Wayne was undervaluing the Goliad Property at her expense. She
testified her attorney filed these motions to determine the true value of the Goliad Property. Also
at trial, Steven testified at trial about the value of the amount paid by AEP for the easement:
Well, the property we are talking about where the easement is is [sic] nothing but
solid oak trees, and when they go through there, they completely wipe out all that.
So the whole tract will be demolished of all the oak trees, and you will have the
high lines that you can’t build underneath or close to and no fencing underneath.
And so you are struck with this big high line for the rest of the life of the property
you own. That’s basically it.
On March 27, 2018 Jennifer filed a Motion for Court-Ordered Partial Distribution,
requesting that the probate court direct Wayne to distribute $100,000.00 to her within twenty days.
Jennifer’s motion stated that she was struggling to pay her bills. She requested the probate court
to order Wayne to make a partial distribution within twenty days to cover her financial support
until final resolution of the disputes between her and Wayne could be resolved. On April 2, 2018,
-8-
04-20-00103-CV
Jennifer’s attorney received a letter from Wayne’s attorney. The letter informed Jennifer that if
she pursued her motions, she would risk losing her inheritance under the will’s no-contest clause.
Jennifer testified the letter “was very intimidating [and was] trying to get [her] to go away and not
proceed.” Jennifer testified that by July 2018, she knew that over $2 million remained in Merrill
Lynch stocks and bonds, and other investment accounts owned by her father. She could not
understand why Wayne had not made another distribution.
On July 31, 2018, Wayne filed a Response and Objections to Motion for Court-Appointed
Appraiser. On August 13, 2018, Jennifer withdrew her motion for court appointment of
independent appraiser. In September 2018, Wayne made another distribution of the estate. Jennifer
received around $730,000. However, Jennifer testified she had not been made aware of the
distribution. Wayne “deposited the stocks in a stock form and [sic] account that [she] had with
Merrill Lynch, and [she] wasn’t aware of it. [She] didn’t know.” Jennifer testified, “He did not
give me any information.” At trial, Wayne confirmed that he had transferred securities from the
estate’s account into Jennifer’s Merrill Lynch account and that he had not told her about the
transfer or discussed the matter with her.
On September 18, 2018, Wayne filed an Executor’s Section 405.003 Motion for Judicial
Discharge, stating that “[a]ll of the assets of the [e]state (subject to the funds retained for the
reserve below) have been distributed to the appropriate beneficiary of the estate” and that there
was no further need for an independent administration of the estate. Wayne, as independent
executor, sought a “judicial declaration of non-liability and discharge of all responsibilities,” and
requested the probate court approve a reserve of $150,000.00 in the Estate bank account “to pay
his fees and expenses in the final closing of the Estate and [in] obtaining a judicial discharge.”
That same day, Trey and Steven filed waivers of citation.
-9-
04-20-00103-CV
On September 26, 2018, Jennifer was served with the lawsuit. She testified she was
concerned because Wayne’s motion for judicial discharge represented that all debts of the estate
had been paid, but the motion did not provide any information regarding what the debts were. She
also testified that no information was provided in the motion about the distributions or to whom
the distributions had been made. Jennifer filed a General Denial and Objection to Judicial
Discharge. Her lawyer requested an accounting from Wayne. On November 26, 2018, Wayne
provided a “Section 404.011 Accounting.” The inventory filed by Wayne indicated a total gross
estate of $5,165,299.25. The accounting showed that Jennifer had been distributed $950,875.77;
Steven had been distributed $976,705.37; Trey had been distributed $976,674.545; and Wayne
had been distributed $974,199.80. This accounting revealed to Jennifer that Wayne had not
distributed an even share of the residuary estate to her, despite Wayne having represented months
earlier in the motion to discharge that he had distributed all the assets appropriately. Using his own
appraisal values, the statement showed Wayne had shorted Jennifer approximately $26,000.00.
Wayne testified that until the moment he prepared the accounting, he had not realized Jennifer had
not been distributed an equal share of the residuary estate. On the day before Wayne’s deposition,
he made a distribution to Jennifer in the amount of $25,829.60 to account for the shortfall.
The accounting filed by Wayne also revealed that Wayne had improperly paid himself an
executor’s fee of $48,145.24. Wayne testified at trial that he returned the executor’s fee to the
estate because his attorney “suggested it might have been a mistake.” Wayne testified he could not
remember the date when he paid himself the fee or the date he returned it, other than to say it was
probably a day before or after the accounting. Taken together, Jennifer emphasizes in her brief that
Wayne has admitted to improperly administering $73,974.84 in a manner that directly benefited
himself.
- 10 -
04-20-00103-CV
On December 11, 2018, Jennifer filed a First Amended Answer, Counterclaim, and
Objection to Judicial Discharge. Jennifer alleged that Wayne breached various fiduciary duties to
her, including breach of duty as agent in fact under the August 20, 2015 power of attorney and as
independent executor of the estate. As agent in fact, Jennifer alleged that Wayne acted under the
power of attorney to add himself to the Merrill Lynch retirement accounts as beneficiary to the
exclusion of the other estate beneficiaries. As independent executor, Jennifer alleged that Wayne
breached his fiduciary duties by not distributing to her any of the Goliad Property and by
undervaluing the Goliad Property. She based this claim on the fact that after the Goliad Property
was conveyed to the three brothers, the brothers granted an electric line transmission easement to
AEP across approximately 16 acres of the Goliad Property for $11,250.00 per acre. Jennifer argued
that Wayne should have valued the Goliad Property based on the price paid for the easement, rather
than the per-acre value in the appraisal Wayne relied on. Jennifer argued she was entitled to her
proportionate share of the amount AEP paid for the easement. She sought damages, exemplary
damages, and attorney’s fees. In response, Wayne filed an answer and Motion for Declaratory
Relief, Request for Executor’s Fee and Amended Section 405.003 Motion for Judicial Discharge.
In September 2019, the trial began before a jury. The jury was asked in Question 1 whether
Wayne had complied with his fiduciary duty in connection with the distributions of the residuary
estate. The jury answered, “No.” Question 2 asked the jury what sum of money, if paid now in
cash, would fairly and reasonably compensate Jennifer for the damages, if any, resulting from
Wayne’s breaches of fiduciary duty related to the distributions of the residuary estate. The jury
answered, “$0.” Question 3 asked the jury whether Wayne complied with his fiduciary duty in
connection with the AEP Easement and Right of Way agreements. The jury answered, “Yes.”
Question 4 related to damages if the jury had answered Question 3 in the affirmative. Question 5
asked the jury whether Wayne, acting under a power of attorney from William, added himself as
- 11 -
04-20-00103-CV
a beneficiary to William’s Merrill Lynch Accounts. The jury answered, “No.” The jury did not
answer Question 6 because it answered Question 5 in the negative. Question 7 asked the jury if it
found by clear and convincing evidence that the harm to Jennifer, if any, resulted from malice or
fraud. The jury answered “No” to both malice and fraud. Question 8 asked the jury what it found
from a preponderance of the evidence was the reasonable and necessary fees and expenses for the
services of Wayne’s attorneys in connection with prosecuting and defending this case. The jury
answered, “$0.” Question 9 asked the jury the amount of reasonable and necessary fees and
expenses for Jennifer’s attorneys in connection with prosecuting and defending this case. The jury
answered $150,000.00 for representation in the trial court; $25,000 for representation in the court
of appeals; $15,000 for representation at the petition for review stage in the Texas Supreme Court;
$15,000 for representation at the merits briefing stage in the supreme court; and $10,000 for
representation through oral argument and completion of proceedings in the supreme court. The
jury’s verdict was unanimous regarding Question 1. The jury was not unanimous with regard to
the rest of the answers, but certified that five of them had agreed to each and every answer.
After the jury’s verdict, Wayne filed a motion to disregard the jury’s findings on attorney’s
fees. Jennifer filed a response and a motion to enter judgment. On November 22, 2019, the probate
court signed its judgment, decreeing that Wayne had breached his fiduciary duties to Jennifer and
was not granted a judicial discharge pursuant to section 405.003 of the Texas Estates Code. The
judgment taxed all costs incurred in the proceeding against Wayne. It ordered, adjudged, and
decreed that any funds reserved from the estate and expended by Wayne were not approved by the
court as a proper charge against the estate pursuant to section 405.003(e) and that Wayne was
personally liable to return said funds to the estate within thirty days. It further ordered, adjudged
and decreed that Jennifer recover $150,000 from Wayne, personally, as reasonable and necessary
- 12 -
04-20-00103-CV
attorney’s fees and expenses, with post-judgment interest on such amount accruing at the rate of
5% per annum. It conditionally awarded future attorney’s fees if the case was appealed.
Wayne then filed a Request for Findings of Fact and Conclusions of Law, along with a
Motion to Disregard Jury Findings, Motion to Modify Judgment, and Motion for New Trial on
Attorney’s Fees. On January 17, 2020, the probate court signed its findings of fact and conclusions
of law. Pursuant to Texas Rules of Civil Procedure 296 and 297, the probate court made findings
of fact and conclusions of law regarding the portion of the case that was not tried by the jury. The
probate court made a legal conclusion that Wayne had a statutory right under section 405.0015 of
the Estates Code to make non-pro-rata distributions of the residuary estate. The probate court noted
that Wayne had requested court approval to reserve the cash sum of $150,000.00 in the estate’s
bank account to be used to pay his legal fees and expenses in the final closing of the estate,
defending his actions as Executor and obtaining a judicial discharge. The court found that Wayne
expended those funds on his attorneys prior to obtaining court approval of the reserve. The probate
court noted that Jennifer filed a general denial to Wayne’s declaratory action for judicial discharge
and also sought to specifically deny his discharge because he breached his fiduciary duties owed
to her. Explaining that the jury had found Wayne breached his fiduciary duty to Jennifer but that
it had also found damages in the amount of $0, the probate court stated that “[t]he root of the
litigation by and between Wayne Stewart and Jennifer Stewart was whether he is entitled to a
judicial discharge given the allegations that Wayne as a fiduciary engaged in omissions and/or
malfeasance.” The probate court stated that “[b]ased on the jury’s findings, the issues in
controversy, and the evidence presented at trial, the [c]ourt determines that any funds reserved
from the Estate and expended by Wayne A. Stewart are not approved as a proper charge against
the Estate pursuant to Texas Estates Code § 405.003. Wayne A. Stewart is personally liable to
return said funds to the Estate.” The probate court also found that “[b]ased on the jury’s findings,
- 13 -
04-20-00103-CV
the issues in controversy, the evidence presented at trial, and the [c]ourt’s prior findings, it is
equitable and just to award Jennifer Stewart the full amount of attorney’s fees found to be both
reasonable and necessary by the jury.” Thus, the probate court stated it was exercising its discretion
under the Texas Declaratory Judgments Act to award Jennifer “the full amount of her reasonable
and necessary attorney’s fees from Wayne A. Stewart, individually, as he was a party to this
lawsuit in both his individual and representative capacities.” The probate court also found that
because Jennifer “was the successful party,” she is entitled to recover all of her costs from Wayne,
individually, pursuant to Texas Rule of Civil Procedure 131. With regard to a judicial discharge,
the probate court found that based on the jury’s findings, the issues in controversy, the evidence
presented at trial, and the court’s prior findings, Wayne was not granted a judicial discharge
pursuant to section 405.003 of the Texas Estates Code. Wayne appealed.
JENNIFER STEWART’S BREACH OF FIDUCIARY DUTY CLAIM
Wayne argues that there is no evidence that he breached his fiduciary duties to Jennifer.
The elements of a claim for breach of fiduciary duty are the following: (1) the existence of a
fiduciary relationship between the plaintiff and defendant; (2) a breach of the fiduciary duties
arising from that relationship by the defendant; and (3) injury to the plaintiff, or benefit to the
defendant, resulting from that breach. Plotkin v. Joekel, 304 S.W.3d 455, 479 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). “The relationship between an executor and the estate’s
beneficiaries is one that gives rise to a fiduciary duty as a matter of law.” Punts v. Wilson, 137
S.W.3d 889, 891 (Tex. App.—Texarkana 2004, no pet.) (citing Huie v. DeShazo, 922 S.W.2d 920,
923 (Tex. 1996)). “An executor’s fiduciary duty to the estate’s beneficiaries arises from the
executor’s status as trustee of the property of the estate.” Id. (citing Humane Soc’y v. Austin Nat’l
Bank, 531 S.W.2d 574, 577 (Tex. 1975)). “The executor thus holds the estate in trust for the benefit
of those who have acquired a vested right to the decedent’s property under the will.” Id. “The
- 14 -
04-20-00103-CV
fiduciary duties owed to the beneficiaries of an estate by an independent executor include a duty
of full disclosure of all material facts known to the executor that might affect the beneficiaries’
rights.” Id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex. 1984), and Huie, 922
S.W.2d at 923) (emphasis added).
“A fiduciary also ‘owes its principal a high duty of good faith, fair dealing, honest
performance, and strict accountability.’” Id. at 892 (quoting Ludlow v. DeBerry, 959 S.W.2d 265,
279 (Tex. App.—Houston [14th Dist.] 1997, no writ)); see also Wolf v. Ramirez, No. 08-19-00147-
CV, 2020 WL 5110635, at *12 (Tex. App.—El Paso Aug. 31, 2020, no pet.) (“Generally,
fiduciaries owe the following duties to their principals: the duty of loyalty and utmost good faith;
duty of candor; duty to refrain from self-dealing; duty to act with integrity; duty of fair, honest
dealing; and the duty of full disclosure.”). “When an independent executor takes the oath and
qualifies in that capacity, he or she assumes all duties of a fiduciary as a matter of law which, in
addition to other duties, includes the duty to avoid commingling of funds.” Punts, 137 S.W.3d at
892.
A. Does Section 405.0015 Preclude Jennifer’s Breach of Fiduciary Duty Claim as a
Matter of Law?
On appeal, Wayne argues there is no evidence to support the finding by the jury that he
breached his fiduciary duty to Jennifer, because under section 405.0015 of the Texas Estates Code,
he had the right to make non-pro rata distributions of the residuary estate. Thus, he argues that he
did not engage in any prohibited self-dealing as a matter of law.
Section 405.0015, titled “Distributions Generally,” provides the following:
Unless the will, if any, or a court order provides otherwise, an independent executor
may, in distributing property not specifically devised that the independent executor
is authorized to sell:
(1) make distributions in divided or undivided interests;
- 15 -
04-20-00103-CV
(2) allocate particular assets in proportionate or disproportionate
shares;
(3) value the estate property for the purposes of acting under
Subdivision (1) or (2); and
(4) adjust the distribution, division, or termination for resulting
differences in valuation.
TEX. EST. CODE § 405.0015. Wayne points out that his father’s will did not limit his authority
under section 405.0015. The will’s only limitation on disposition of the residuary estate was that
it be distributed “in equal shares” to Wayne, Trey, Steven, and Jennifer. Thus, Wayne argues
section 405.0015 and the will permitted him to distribute the Goliad Property to the three brothers
and exclude Jennifer—so long as Jennifer received equal value of the residuary estate as a whole.
Wayne argues the undisputed evidence at trial shows that Jennifer received an equal share of the
residuary estate based on the independent appraisal value Wayne assigned to the Goliad Property.
Wayne further argues that Jennifer based her breach of fiduciary claims on (1) Wayne’s
failure to disclose his distribution plan and his decision to deed the Goliad Property to the three
brothers; (2) Wayne’s failure to disclose the AEP easement to her; and (3) Wayne’s failure to value
the Goliad Property at $11,250.00 per acre, which is the amount AEP paid for its easement.
According to Wayne, under section 405.0015 and the will, he had the authority to determine
whether and how to make non-pro rata distributions of the residuary estate, and thus to exclude
Jennifer from distribution of the Goliad Property. Wayne argues neither his plan or ultimate
distribution of the Goliad Property could have affected Jennifer’s rights so long as she received
equal value of the residuary estate. Thus, Wayne argues the information Jennifer claims she did
not receive was not material, and his failure to disclose that information, constitutes no evidence
that he failed to comply with his fiduciary obligations.
In response, Jennifer contends his argument is premised on a “tortured interpretation” of
section 405.0015 of the Estate Code, which became effective on September 1, 2017. According to
- 16 -
04-20-00103-CV
Jennifer, Wayne’s interpretation of section 405.0015 effectively asks this court to determine that
the typical fiduciary duties applied to an executor (i.e., good faith, fair dealing, honest
performance, and full disclosure of all material facts known to them that might affect the
beneficiaries’ rights) do not apply to the procedures set forth in section 405.0015 so long as the
beneficiary ultimately receives what the executor, using his or her discretion, thinks is an equal
value non-pro-rata distribution of estate property. She argues that under Wayne’s interpretation, it
is immaterial (i.e., no evidence of wrongdoing) that he failed to disclose the substantial AEP
easement sales price to Jennifer because he determined that the lower appraised value was
appropriate to determine Jennifer’s share of the Goliad Property. Jennifer points out that using the
lower appraised value greatly benefited Wayne and his nondisclosure of the AEP easement kept
Jennifer in the dark of information that affected her opinion of the fairness of Wayne’s actions.
Jennifer argues Wayne’s proposed interpretation of section 405.0015 is an absurd result defeating
the manifest purpose of the statute and must be rejected.
Jennifer further argues that adopting Wayne’s interpretation of section 405.0015
encourages independent executors to operate in a cloud of darkness antithetical to the fundamental
principles of a fiduciary relationship. It encourages independent executors to shop for the lowest
possible appraisal when making non-pro-rata distributions—without telling the beneficiaries—
because the executor has the “discretion” to apply the lowest value to other beneficiaries as an
“equal” share. It encourages non-disclosure of executor-determined dispositive shares to favor one
preferred sibling over another, or the executor’s interest over the beneficiaries’ interest. Thus, she
argues that Wayne’s interpretation encourages the type of fiduciary conduct that leads to litigation,
which is the opposite of the manifest purpose of section 405.0015, which is to avoid litigation over
the distribution of assets.
- 17 -
04-20-00103-CV
In interpreting a statute, our primary goal “is to effectuate the Legislature’s intent as
expressed by the plain and common meaning of the statute’s words.” Hebner v. Reddy, 498 S.W.3d
37, 41 (Tex. 2016) (citations omitted). “Where statutory text is clear, that text is determinative of
legislative intent unless the plain meaning of the statute’s words would produce an absurd result.”
Id. (citations omitted). Further when “the language is susceptible of two constructions, one of
which will carry out and the other defeat [its] manifest object, [the statute] should receive the
former construction.” Id. (quoting Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex.
1979)).
In looking at the plain meaning of section 405.0015, it clearly grants an independent
executor, unless otherwise limited, authority to make distributions in divided or undivided
interests; to allocate particular assets in proportionate or disproportionate share; to value the estate
property; and to adjust the distribution, division or termination for resulting differences in
valuation. See TEX. EST. CODE § 405.0015. However, section 405.0015 states nothing about
divesting an independent executor of the fiduciary duties he owes the beneficiaries of the will. We
agree with Jennifer that Wayne’s interpretation would lead to an absurd result.
We also agree with Jennifer that it is not a coincidence section 405.0015 became effective
simultaneously with the Texas Uniform Partition of Heir’s Property Act (the “Heirs Partition
Act”). See TEX. PROP. CODE § 23A.001 (effective Sept. 1, 2017). The Heirs Partition Act provides
a streamlined process by which heirs can either force partition in kind, or alternatively effectuate
the buyout, of undivided interests in inherited property. See TEX. PROP. CODE §§ 23A.001-.013.
We conclude section 405.0015 merely provides an independent executor with the tools necessary
to make non-pro-rata distributions and avoid the common partition litigation among heirs
anticipated and addressed by the Heirs Partition Act. Thus, the typical fiduciary duties of good
- 18 -
04-20-00103-CV
faith, fair dealing, and full disclosure still apply to Wayne’s actions notwithstanding section
405.0015.
B. Was There Legally Sufficient Evidence to Support the Submission of Jennifer’s Breach
of Contract Claim to the Jury?
Having determined that section 405.0015 did not bar Jennifer’s claim for breach of
fiduciary duty, we turn to whether there was legally sufficient evidence to support the submission
of the claim to the jury. In reviewing a legal sufficiency challenge to the evidence, “we credit
evidence that supports the verdict if reasonable jurors could have done so and disregard contrary
evidence unless reasonable jurors could not have done so.” Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). A legal sufficiency challenge “will be sustained when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact.” Id. at 115 (quoting Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). “Evidence does not exceed a scintilla if it is so weak as to do no
more than create a mere surmise or suspicion that the fact exists.” Id. (quoting Kroger Tex., Ltd.
P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).
As noted previously, an independent executor owes a fiduciary duty to fully disclose all
material facts known to him that might affect the beneficiaries’ rights. Huie, 922 S.W.2d at 923.
“This duty exists independently of the rules of discovery, applying even if no litigious dispute
exists between the trustee and beneficiaries.” Id. (emphasis added). Further, “[t]he existence of
strained relations between the parties [does] not lessen the fiduciary’s duty of full and complete
disclosure.” Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex. 1984). Here, there was evidence
- 19 -
04-20-00103-CV
at trial that Wayne repeatedly did not disclose material facts to Jennifer about the administration
of the estate. With regard to the Goliad Property, there was evidence that he did not disclose the
AEP easement offer to her or to Mark Barnes, the appraiser hired to perform the valuation on the
Goliad Property for the estate. The evidence shows Wayne then applied the lower valuation found
by Barnes in distributing the estate’s assets while, at the same time, intentionally waiting to sell
the easement until after he had deeded the property to himself and his brothers, at the exclusion of
Jennifer. That is, between August and December 2017, Wayne and his brother Steven negotiated
the easement purchase price from the initial offer of $7,500 per acre to $11,250 per acre. On
December 19, 2017, after agreeing to the easement price of $11,250 per acre but before executing
the easement, Wayne deeded the Goliad Property to himself and his brothers. Wayne testified he
took these actions knowing he was going to receive $73,000 from AEP that Jennifer would not.
Wayne’s failure to timely disclose material facts to Jennifer affected her ability to challenge
valuation of the Goliad Property. In addition to the Goliad property, Wayne admittedly did not
disclose to Jennifer the nature of the securities distributed to her. Without this information, Jennifer
could not establish the fairness or completeness of the distribution to her in lieu of an in-kind share
in the Goliad property. We conclude there was evidence that Wayne failed to disclose to Jennifer
material facts that might have affected her rights.
Wayne argues, however, that there is no evidence that Jennifer suffered any damages as a
result of his breach, pointing to jury’s finding that Jennifer was entitled to “$0” in damages as a
result of said breach by Wayne. Jennifer responds that she did not have to show that she was
entitled to monetary damages as a result of Wayne’s breach, but merely needed to show that Wayne
benefited by his breach. See Plotkin, 304 S.W.3d at 479 (explaining that the elements of a claim
for breach of fiduciary duty are (1) the existence of a fiduciary relationship between the plaintiff
and defendant; (2) a breach of the fiduciary duties arising from that relationship by the defendant;
- 20 -
04-20-00103-CV
and (3) “injury to the plaintiff, or benefit to the defendant, resulting from that breach”); Ortiz v.
Las Blancas Minerals, L.P., No. 04-18-00769-CV, 2020 WL 806652, at *3 (Tex. App.—San
Antonio Feb. 19, 2020, pet. denied) (mem. op.) (stating that a plaintiff needs to show “injury to
the plaintiff, or benefit to the defendant” resulting from the breach of fiduciary duty). Thus,
Jennifer merely had to show at trial that Wayne benefited as a result of his breach of fiduciary
duty.
There was evidence at trial that Wayne repeatedly did not disclose material facts to Jennifer
about the administration of the estate. With regard to the Goliad Property, there was evidence that
he did not disclose the AEP easement offer to her or to the person performing the appraisal of the
property for the estate. The evidence shows Wayne applied a lower valuation of the Goliad
Property while, at the same time, not disclosing the details of the AEP easement. Wayne’s repeated
non-disclosures to Jennifer about the material facts relevant to her interest in the Goliad Property,
as well as his decision to apply a lower valuation to Jennifer’s share of the Goliad Property and
exclude her from the more lucrative offer made on the AEP easement, resulted in a benefit to
himself at the exclusion of Jennifer. That is, Wayne received a larger portion of the remaining
residuary estate for himself because he chose to pay Jennifer thousands of dollars an acre less for
her share of the Goliad property prior to negotiating a higher price for the easement he agreed to
with AEP.
Wayne contends that the jury must have completely disregarded all evidence that he
benefited from his failure to disclose to Jennifer material facts that might have affected her rights
because (a) it found no breach of fiduciary duty with respect to the AEP easement in its answer to
Question 3 and (b) did not find Jennifer was entitled to any damages with respect to its answer in
Question 1 that Wayne had breached his fiduciary duty “in connection with the distributions of the
residuary estate.” We disagree with this conclusion as the jury also found that none of the estate’s
- 21 -
04-20-00103-CV
funds spent by Wayne on his attorney’s fees were either reasonable or necessary. Wayne admitted
at trial that he had shorted Jennifer in his distributions of the estate, which he claimed he had not
discovered until after he was forced to file a statement of accounting as a result of Jennifer’s
motion. He also admitted that he had improperly paid himself an executor’s fee. Although he
reimbursed the estate, there was evidence that it was only because of Jennifer’s actions that
Wayne’s misconduct was discovered. Thus, we hold there was evidence that Wayne benefited as
a result of his breach of fiduciary duty.
JENNIFER STEWART’S ATTORNEY’S FEES
Wayne also argues on appeal that the trial court erred in awarding Jennifer all of her
attorney’s fees and costs. In its judgment, the trial court found that “[b]ased on the jury’s findings,
the issues in controversy, the evidence presented at trial, and the court’s prior findings, it is
equitable and just to award Jennifer Stewart the full amount of attorney’s fees found to be both
reasonable and necessary by the jury.” The trial court further stated that it was exercising its
discretion under the Texas Declaratory Judgments Act (“TDJA”) to award Jennifer the “full
amount of her reasonable and necessary attorney’s fees from Wayne A. Stewart, individually, as
he was a party to this lawsuit in both his individual and representative capacities.”
The TDJA provides that “the court may award costs and reasonable and necessary
attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE § 37.009. The TDJA
entrusts attorney’s fee awards to the trial court’s sound discretion, subject to the requirements that
any fees awarded be reasonable and necessary, which are matters of fact, and to the additional
requirements that fees be equitable and just, which are matters of law. Bocquet v. Herring, 972
S.W.2d 19, 21 (Tex. 1998); see also Ridge Oil Co. v. Guinn Investments, Inc., 148 S.W.3d 143,
161 (Tex. 2004). Unreasonable fees cannot be awarded, even if the trial court believes them to be
just, but the trial court may conclude that it is not equitable or just to award even reasonable and
- 22 -
04-20-00103-CV
necessary attorney’s fees. Ridge Oil, 148 S.W.3d at 161-62. Whether it is equitable and just to
award attorney’s fees is not susceptible to direct proof but is rather a matter of fairness in light of
all the circumstances. Id. at 162.
Wayne argues that the trial court’s award of attorney’s fees to Jennifer “flows primarily
from the misguided assumption that Jennifer succeeded in establishing her breach of fiduciary duty
claim regarding Wayne’s distribution of the residuary estate.” According to Wayne, because there
is no evidence to support Jennifer’s breach of fiduciary duty claim, the trial court erred in awarding
her attorney’s fees. We, however, have already determined that there was legally sufficient
evidence to support Jennifer’s claim for breach of fiduciary duty.
Wayne further argues that “even if the evidence supported the jury’s refusal to find that
[he] complied with his fiduciary duties, that finding alone does not make Jennifer a prevailing
party.” Wayne admits that an award of fees under the TDJA is not dependent on a finding that the
party “substantially prevailed,” and the trial court may award just and equitable attorney’s fees to
a non-prevailing party. Tex. A & M Univ.-Kingsville v. Lawson, 127 S.W.3d 866, 874 (Tex. App.—
Austin 2004, pet. denied). Nevertheless, Wayne argues that neither Jennifer nor the trial court
articulated any circumstance justifying the award of attorney’s fees other than their misguided
notion that she was the successful party in this litigation. We disagree with Wayne.
There was evidence presented at trial of the following circumstances that support the trial
court’s finding that it was equitable and just to award Jennifer attorney’s fees and costs. Wayne
was the party who instigated this lawsuit by filing his “Executor’s Section 405.003 Motion for
Judicial Discharge” and seeking a “judicial declaration of non-liability and discharge of all
responsibilities.” In the motion, Wayne represented to Jennifer that “[a]ll of the assets of the Estate
(subject to the funds retained for the reserve referred to below) have been distributed to the
appropriate beneficiary of the Estate . . . [and] [t]here is no further need for an independent
- 23 -
04-20-00103-CV
administration of the Estate.” Wayne testified at trial that (1) the motion was filed only a week or
two after he made what he considered to be a final distribution of securities out of the Merrill
Lynch account to Jennifer; (2) he did not talk to Jennifer about the distribution of the securities
and did not explain to her what was going on with the transaction; and (3) he provided Jennifer
with no information about what remained in the residuary estate. Thus, Jennifer had no information
from which to determine whether Wayne was entitled to a judicial discharge of liability, and when
her lawyer had asked for an accounting, she was accused of attempting to contest the will. Through
Jennifer’s legal actions, it was determined that Wayne had not properly distributed the assets of
the estate to the beneficiaries. Wayne admitted that when he was required to file the “Section
404.001 Accounting” in response to Jennifer’s request, he realized he had distributed to Jennifer
$25,829.60 less than Steven, $25,798.78 less than Trey, and $23,324.04 less than Wayne. Wayne
ultimately distributed another $26,000 to Jennifer the day before his deposition. The accounting
filed by Wayne also revealed that he had improperly paid himself an “Executor’s Fee” of
$48,145.24. Wayne returned the $48,145.24 to the estate after the accounting was prepared and
provided to Jennifer. Thus, it was only due to Jennifer’s efforts that she received an equal
distribution of the estate by Wayne’s own accounting; further, it was only due to her efforts that
Wayne returned $48,000 to the estate for the benefit of the residual beneficiaries. Further, by
pursuing her objection to Wayne’s judicial discharge to verdict, Jennifer obtained a judgment
requiring Wayne to return $150,000 in funds he “reserved” (that is, paid to his attorneys) and was
denied the judicial discharge he sought. Thus, we find no abuse of discretion by the trial court in
determining it was equitable and just to award Jennifer her reasonable and necessary attorney’s
fees and costs.
Wayne further argues that “Jennifer’s failure to segregate her recoverable attorney’s fees
from those that are nonrecoverable requires a new trial.” Wayne points out that he objected to
- 24 -
04-20-00103-CV
Question 9 at trial because Jennifer had failed to segregate her recoverable from unrecoverable
fees. See McCalla v. Ski River Dev. Inc., 239 S.W.3d 374, 383 (Tex. App.—Waco 2007, no pet.)
(objection to jury question on attorney’s fees preserves issue of failure to segregate). He
emphasizes that Jennifer’s allegation he had breached his fiduciary duty when he added himself as
a beneficiary to his father’s Merrill Lynch accounts was rejected by the jury. Thus, according to
Wayne, as an independent breach of fiduciary duty claim, Jennifer should have segregated the fees
spent on prosecuting that claim.
“If any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a
claimant must segregate recoverable from unrecoverable fees.” Tony Gullo Motors I, LP v. Chapa,
212 S.W.3d 299, 313 (Tex. 2006). However, segregation is not required “when the fees are based
on claims arising out of the same transaction that are so intertwined and inseparable as to make
segregation impossible.” Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017). “[I]t is only when
discrete legal services advance both a recoverable and unrecoverable claim that they are so
intertwined that they need not be segregated.” Id.
Jennifer argues that “[a]t its core, this is a lawsuit initiated by Wayne seeking a judicial
discharge of all liability regarding his administration of the Estate.” Jennifer agrees with Wayne
that under section 405.003(a) of the Texas Estates Code, an independent executor is entitled to
judicial discharge if: (1) the Estate has been administered; (2) there is no further need for
administration; and (3) there are no liabilities of the Estate that have not been fully and fairly
disclosed. TEX. EST. CODE § 405.003(a). In her live pleadings, Jennifer generally denied that
Wayne had satisfied those core elements necessary for a judicial discharge, and asserted two
counterclaims in opposition of the judicial discharge: (1) Wayne breached his fiduciary duties in
administering the residuary estate; and (2) Wayne breached his fiduciary duties to the Decedent
- 25 -
04-20-00103-CV
when he, as the Decedent’s agent-in-fact, added himself to the Decedent’s accounts as beneficiary
to the exclusion of the other estate beneficiaries.
Wayne does not complain that Jennifer failed to segregate her fees associated with Wayne’s
breach of fiduciary duty in administering the residuary estate; rather, his focus on appeal is her
claim regarding his actions as agent-in-fact. In his brief, he states:
In particular, Jennifer asserted that Wayne, acting under a power of attorney,
breached his fiduciary duty by adding himself as a beneficiary to the Merrill Lynch
accounts . . . That claim had nothing to do with any declaration Wayne sought as
part of his motion for judicial discharge as independent executor . . . .
Jennifer argues that Wayne is mistaken. According to Jennifer, her counterclaim regarding
Wayne’s actions as the Decedent’s agent-in-fact asserted he breached his fiduciary duty to
Decedent “when Wayne added himself to his father’s accounts as beneficiary to the exclusion of
the other estate beneficiaries.” Jennifer, derivatively on behalf of the estate pursuant to section
751.251 of the Texas Estates Code, asserted that Wayne’s actions as agent-in-fact constituted self-
dealing transactions and that “[t]he estate is due the funds in these accounts as of Decedent’s date
of death which are believe[d] to be between $50,000 and $68,000.” Jennifer argues this claim is
necessarily intertwined with her objection to Wayne’s entitlement to judicial discharge. That is,
because there are potentially additional assets of the estate requiring further administration, Wayne
should not be discharged pursuant to section 405.003. Had Jennifer been successful on her agent-
in-fact breach of fiduciary duty claim (which Wayne defended using funds from the estate),
additional assets would have entered the estate (like the inappropriate executor’s commission that
was returned by Wayne) that would require distribution to the residuary beneficiaries. Thus,
Jennifer argues she was not required to segregate out her attorney’s fees incurred pursuing the
agent-in-fact breach of fiduciary duty claim against Wayne on behalf of the Estate. See Kinsel, 526
- 26 -
04-20-00103-CV
S.W.3d at 427. We agree with Jennifer and hold that her legal services advancing both claims were
so intertwined that they did not need to be segregated.
JENNIFER STEWART’S COSTS
Wayne argues the trial court erred in assessing all costs against him because Jennifer was
not the successful party. He challenged the trial court’s award of costs in his motion to disregard
jury findings, motion to modify judgment, and motion for new trial on attorney’s fees. Texas Rule
of Civil Procedure 131 provides that “[t]he successful party to a suit shall recover of his adversary
all costs incurred therein, except where otherwise provided.” TEX. R. CIV. P. 131. We review an
award of costs under Rule 131 for abuse of discretion. Midwest Med. Supply Co. v. Wingert, 317
S.W.3d 531, 539 (Tex. App.—Dallas 2010, no pet.).
To “prevail” or “succeed” in a suit seeking actual damages, there must be a showing that
the party was actually harmed, not merely wronged. See Intercontinental Grp. P’ship v. KB Homes
Lone Start L.P., 295 S.W.3d 650, 656 (Tex. 2009). Wayne argues that because the jury found that
Jennifer sustained no injury in the case, she was not the successful party and thus was not entitled
to an award of costs under Rule 131. According to Wayne, because the jury’s verdict entitled him
to a take-nothing judgment, he was the successful party and should have recovered costs against
Jennifer.
In response, Jennifer emphasizes that Wayne’s argument ignores the fact that she sought
to deny the judicial discharge sought by Wayne and that she was successful in doing so. Jennifer
contends that she was objectively the prevailing party in the dispute initiated by Wayne seeking a
judicial discharge. We agree with Jennifer. Her efforts after Wayne filed his motion for judicial
discharge secured (1) an additional $26,000 for herself to account for the distribution shortfall that
Wayne had previously failed to disclose; (2) an additional $48,145.24 for the estate when Wayne
returned an inappropriate executor’s fee; and (3) the return of approximately $150,000 of the
- 27 -
04-20-00103-CV
estate’s funds inappropriately “reserved” by Wayne and expended on unreasonable and
unnecessary attorney’s fees. Therefore, while Jennifer was not successful in recovering monetary
damages for her breach of fiduciary duty claims, she was successful in obtaining the recovery of
substantial funds for the estate and preventing Wayne from obtaining the judicial discharge at the
heart of this case. Accordingly, we hold that the trial court did not abuse its discretion in awarding
costs to Jennifer as the prevailing party.
WAYNE STEWART’S ATTORNEY’S FEES
Wayne argues the trial court erred in denying his motion for new trial because no evidence
supported the jury’s refusal to award attorney’s fees to him. Generally, the denial of a motion for
new trial is reviewed for abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006).
Wayne points out that in the trial court he sought attorney’s fees on three grounds:
1. Section 37.009 of the TDJA, which permits the court to award costs, and
reasonable and necessary attorney’s fees as are equitable and just;
2. Section 352.051 of the Texas Estates Code, which entitles the personal
representative of the estate to reasonable attorney’s fees necessarily incurred in
connection with proceedings and management of the estate.
3. Section 405.003(e) of the Texas Estates Code, which entitles the independent
executor to pay legal fees from the estate.
Wayne’s trial counsel testified in support of his claim for attorney’s fees. On cross-examination,
Jennifer’s counsel asked whether the estate had paid Wayne’s legal fees. Wayne’s attorney
testified that his legal fees had been paid out of the Estate’s trust account. Question 8 of the jury
charge asked the jury what if found from the preponderance of the evidence were the reasonable
and necessary fees and expenses for the services Wayne’s attorneys in connection with prosecuting
and defending this case. The jury answered “$0.”
- 28 -
04-20-00103-CV
Wayne argues that the jury’s award of no attorney’s fees was improper and in support of
his argument cites Midland W. Bldg., LLC v. First Serv. Air Conditioning Contractors, Inc., 300
S.W.3d 738, 739 (Tex. 2009), and Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 548 (Tex.
2009). Midland and Smith, however, are distinguishable as they both involved the jury’s failure to
award any attorney’s fees to the prevailing party entitled to mandatory fees under section 38.001
of the Texas Civil Practice and Remedies Code. See Midland, 300 S.W.3d at 739 (suit on sworn
account); Smith, 296 S.W.3d at 546 (suit regarding breached lease/contract); see also Smith v. Reid,
No. 04-13-00550-CV, 2015 WL 3895465, at *10 (Tex. App.—San Antonio June 24, 2014, pet.
denied) (mem. op.) (“Attorney’s fees under Chapter 38 are mandatory, not discretion[ary].”). In
this case, however, the award of attorney’s fees was not mandatory under a statute, but
discretionary under section 37.009 of the TDJA. Thus, the jury could determine that none of
Wayne’s attorney’s fees were either reasonable and necessary.
Section 352.051(2) of the Texas Estates Code allows a personal representative “[o]n proof
satisfactory to the court,” to claim an award for “reasonable attorney’s fees necessarily incurred in
connection with the proceedings and management of the estate.” TEX. EST. CODE § 352.051(2). In
his brief, Wayne emphasizes that Jennifer’s trial counsel did not cross-examine his counsel on
whether his counsel’s attorney’s fees were reasonable or necessary. However, Jennifer’s attorney
did not need to do so as there was other evidence presented at trial about Wayne’s bad behavior,
omissions, and malfeasance. See Smith, 296 S.W.3d at 548 (“But the fee, though supported by
uncontradicted testimony, was unreasonable in light of the amount involved and the results
obtained, and in the absence of evidence that such fees were warranted due to circumstances unique
to this case.”). That is, there was evidence presented at trial that Wayne’s attorney’s fees were not
necessary and provided no value to the estate.
- 29 -
04-20-00103-CV
Wayne was the party who instigated this litigation by seeking “a judicial discharge as
Independent Executor” pursuant to section 405.003 of the Texas Estates Code, along with a
declaration that “he is entitled to a judicial declaration of non-liability and discharge of all
responsibilities.” In essence, Wayne was seeking a judicial shield against allegations of omission
and malfeasance. “However, when the personal representative’s own omission or malfeasance is
at the root of the litigation, the estate will not be required to reimburse the personal representative
for his attorney’s fees.” In re Bessire, 399 S.W.3d 642, 650 (Tex. App.—Amarillo 2013, pet.
denied); see also Tindall v. Tex. Dep’t of Mental Health & Mental Retardation, 671 S.W.2d 691,
693 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) (“It is thus apparent that when the fiduciary’s
omission or malfeasance is at the root of the litigation, the estate will not be required to reimburse
the fiduciary for his or her attorneys’ fees.”). “Such fees are not necessarily incurred in connection
with the management of the estate.” Tindall, 671 S.W.2d at 693.
During closing argument, Jennifer stated to the jury:
We think it is fundamentally unreasonable and unnecessary for the estate [to]of
have spent Jenn[ifer]’s inheritance fighting her to cover up [Wayne’s] wrongs.
Because of that, we are asking you to answer zero for any of that, all of it.
Jennifer argues that the jury reached the conclusion, which is consistent with Texas law, that none
of Wayne’s attorney’s fees were reasonable or necessary in light of evidence illustrating his
numerous omissions and malfeasance. We agree with Jennifer.
There was evidence presented at trial that Wayne’s attorney’s fees were paid by the estate’s
funds. At trial, Wayne admitted to having failed to distribute an even share of the residuary estate
when he shorted Jennifer approximately $26,000, a fact he discovered only after filing the motion
for discharge in which he represented he had made equal distributions. Wayne also admitted to
having improperly paid himself an executor’s fees of $48,000, which, again, he discovered only
- 30 -
04-20-00103-CV
after filing the motion for discharge. There was also evidence of Wayne’s threats against Jennifer
and misrepresentations he made to Jennifer about the status of the estate. Wayne also improperly
threatened Jennifer’s inheritance when she asked for additional information and a partial
distribution at a time when Wayne had already distributed to himself and his brothers around
$500,000 each in value from the residuary estate but had only distributed to Jennifer $210,000 in
value from the residuary estate. Therefore, there was evidence to support a finding that Wayne was
not entitled to attorney’s fees under either the TDJA or section 352.051 of the Texas Estates Code.
With regard to section 405.003 of the Texas Estates Code, Wayne argues the trial court
erred in refusing to grant the relief he requested under section 405.003. Section 405.003 provides
the following:
After an estate has been administered and if there is no further need for an
independent administration of the estate, the independent executor of the estate
may file an action for declaratory judgment under Chapter 37, Civil Practice and
Remedies Code, seeking to discharge the independent executor from any liability
involving matters relating to the past administration of the estate that have been
fully and fairly disclosed.
TEX. EST. CODE § 405.003(a) (emphasis added). Section 405.003 also entitles an independent
executor to pay for estate legal fees, expenses, or other costs incurred in relation to a proceeding
for judicial discharge, subject to refund if the expenditures are not approved by the court as a
proper charge against the estate. Id. § 405.003(e). The purpose of section 405.003 is to allow an
independent executor to obtain a judicial discharge from fiduciary service and to obtain a shield
from any liability involving matters relating to the past administration of the estate that have been
fully and fairly disclosed. In re Estate of Whittington, 409 S.W.3d 666, 670 (Tex. App.—Eastland
2013, no pet.).
Wayne argues that under section 405.003(a), an independent executor is entitled to judicial
discharge if (1) the estate has been administered; (2) there is no further need for administration;
- 31 -
04-20-00103-CV
and (3) there are no liabilities of the estate that have not been fully and fairly disclosed. According
to Wayne, it is undisputed that he met all these requirements, and thus, once Jennifer’s claims were
fully litigated, there was no impediment to a judicial discharge in his favor. We disagree with
Wayne.
A judicial discharge under section 405.003 is appropriate only if there is no further need
for an independent administration of the estate. See TEX. EST. CODE § 405.003. Here, however,
there is further need for administration as a natural consequence of the jury’s verdict on Wayne’s
attorney’s fees and the Final Judgment signed by the trial court. Based on the jury’s finding that
Wayne had breached his fiduciary duties to Jennifer, a finding for which we have determined there
was legally sufficient evidence, the trial court in its final judgment did not grant a judicial discharge
pursuant to section 405.003. The trial court then stated that “any funds reserved from the estate
and expended by Wayne A. Stewart are not approved by the Court as a proper charge against the
estate pursuant to Texas Estate Code § 405.003(e),” and ordered that Wayne was “personally liable
to return said funds to the estate.” Thus, the repayment of funds back to the estate still needs to
occur. Once Wayne returns the funds as ordered by the trial court, further administration of the
estate would be necessary to properly distribute the returned funds to the beneficiaries of the will.
We therefore find no error by the trial court in denying Wayne’s request for discharge pursuant to
section 405.003 or by the jury in failing to award Wayne attorney’s fees.
CONCLUSION
We affirm the judgment of the trial court.
Liza A. Rodriguez, Justice
- 32 -