Kanz v. Hood

OPINION

REX D. DAVIS, Chief Justice.

Appellant Jack A. Kanz presents two issues on appeal in which he claims that the trial court erred when it: (1) denied his attorney’s fees for his defense of an unsuccessful removal suit against him as independent executor and (2) ordered the district clerk to distribute the estate because it interfered with the independent executor’s right to be free of court supervision. See Tex. PROb.Code Ann. §§ 145(h), 149B, 149C(c) (Vernon 1980 & Supp.2000).

We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Andrew Kanz, Jr., died in September of 1988 and appointed his son, Jack Kanz (hereinafter Kanz), independent executor of his estate in his will. In April of 1994, Helen A. Hood, Alma L. Marion, and Joe V. Kanz, (collectively “Hood”), beneficiaries under Andrew Kanz’ will, filed a petition against Kanz in his capacity as inde*313pendent executor of their father’s estáte, in which they complained that Kanz had not made an accounting or any distributions of the estate. In February of 1995, Hood filed a motion to recover the compensation paid to Kanz as independent executor of the estate and to disapprove his final accounting.

In September of 1995, Hood filed a motion to replace Kanz as independent executor of the estate with Joe V. Kanz (“Joe”). In the motion, Hood requested that the trial court declare the position of independent executor vacant and appoint Joe as independent executor. Hood claimed that Kanz’ affidavit, filed when Kanz resigned as independent executor in September of 1994, was insufficient to close the estate. Kanz filed a response in which he claimed that the trial court did not have jurisdiction because the estate was closed. •

After a bench trial, the trial court held that Kanz executed a false closing affidavit; ordered that Hood recover the attorney’s fees paid to Kanz; and appointed a receiver to sell the remainder of the estate’s assets. Kanz appealed to this court and we affirmed the trial court’s judgment, as modified by our opinion. See Kanz v. Hood, No. 10-96-152-CV, (Waco October 15,1997, no pet.) (not designated for publication).

In December of 1997, both Hood and Kanz filed applications for reimbursement of their attorneys’ fees and costs. The trial court granted Hood’s application for reimbursement, denied Kanz’ application, and ordered the district clerk to immediately distribute the funds held in the registry of the court.1 Pursuant to Kanz’ request, the trial court issued its findings of fact and conclusions of law. Kanz subsequently perfected his current appeal.

ATTORNEY’S FEES

Kanz’ first issue on appeal claims that the trial court’s findings of fact, in which the trial court denied his request for attorney’s fees for his defense of a removal action instituted against him, were against the great weight and preponderance of the evidence.

A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards used to review jury verdicts for factual sufficiency determinations. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 911-12 (Tex.App. — Austin 1998, pet. denied). We must weigh all the evidence in the record and overturn the trial court’s findings of fact only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App. — Waco 1997, pet. denied).

The trial court may award an independent executor his attorney’s fees used for his defense of a removal action, whether the removal action is successful or not, if the independent executor’s defense is in good faith. Tex. PROb.Code Ann. § 149C(c) (Vernon 1980).2 Kanz argues that the trial court’s findings of fact, in which it held that his “attempting to defend his own gross misconduct and gross mismanagement [was] not an action taken in good faith,” conflicts with the clear language of section 149C(c).3 Kanz contends that the *314trial court did not remove him as independent executor and did not make an explicit finding of fact that his defense of the removal suit was in bad faith. Therefore, the trial court was required to award him attorney’s fees under section 149C(c) because as a matter of law, his effective defense must have been in good faith. Kanz further claims that other courts have held, either directly or indirectly, that reimbursement of an independent executor’s attorney’s fees are mandatory under section 1490(c).4

An independent executor does not need to be successful in his defense of a removal action in order to be awarded attorney’s fees under the Probate Code. See Tex. PROb.Code Ann. § 1490(c) (Vernon 1980). Rather, the trial court’s award of attorney’s fees hinges entirely upon its determination of whether the independent executor’s defense was in good faith. Id.

After a bench trial, the trial court found that Kanz did not correct several curable title defects to the family farm before he attempted to distribute the farm to the beneficiaries. The trial court also determined that Kanz filed a false closing affidavit and did not properly close the estate. Although the trial court did not remove Kanz from his post as independent executor, it expressly held that he did not defend the removal action in good faith.5 Section 1490(c) does not require the trial court to award attorney’s fees if it fails to remove the independent executor. See id. After reviewing the record, we hold that the trial court’s determination was not against the great weight and preponderance of the evidence.

We overrule Kanz’ first issue.

INTERFERENCE WITH DUTIES OF INDEPENDENT EXECUTOR

In his second issue, Kanz contends that the trial court violated section 149B(b) *315of the Texas Probate Code when it interfered with his duties as independent executor by ordering the district clerk to distribute the proceeds of the estate. See Tex. PROb.Code Ann. § 149B(b) (Vernon 1980). Section 149B(b) of the Texas Probate Code states, “unless the court finds a continued necessity for administration of the estate, the court shall order its distribution by the independent executor to the persons entitled to the property.” Id. § 149B(b) (Vernon Supp.2000).

As we held in the first appeal, the petition for accounting and distribution was properly filed in the district court, as was the action to remove Kanz as independent executor. Kanz v. Hood, No. 10-96-152-CV, (Waco October 15, 1997, no pet.) (not designated for publication); see Tex. Prob.Code Ann. § 149C(a); Eppenauer v. Eppenauer, 831 S.W.2d 30, 34 (Tex.App.— El Paso 1992, no writ). A district court’s authority to order accounting, distribution, and removal includes the power to appoint a receiver to assume management and control of estates in the process of independent administration. See Stanley v. Henderson, 139 Tex. 160, 162 S.W.2d 95, 97-98 (1942); Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, 984 (1933); Oldham v. Keaton, 597 S.W.2d 938, 942 (Tex.Civ.App. — Texarkana 1980, writ refd n.r.e.); Metting v. Metting, 431 S.W.2d 906, 908 (Tex.Civ.App. — San Antonio 1968, no writ); O’Connor v. O’Connor, 320 S.W.2d 384, 390 (Tex.Civ.App. — Dallas 1959, writ dism’d); see also 17 M.K. WoodwáRd & ERNest E. Smith, III, Texas Practice: PRObate & Decedent’s Estates § 508 (1971 & Supp.1999). Furthermore, removal of the independent executor is not a necessary prerequisite to the appointment of a receiver to take control of the administration:

[Discussion of whether appointment of a receiver is tantamount to removal of the executor would serve no useful purpose. It is well settled that a district court has power to appoint a receiver of an estate which is in the process of independent administration. In most cases, no practical consequences would result from a recital that the independent executor is removed. As said in O’Connor v. O’Connor, supra, the appointment of a receiver gives full relief, so language of removal would be “dupli-cative and unnecessary.”

Metting v. Metting, 431 S.W.2d at 908 (quoting O’Connor v. O’Connor, 320 S.W.2d at 391).

Kanz argues that, although the trial court had statutory authority to order the executor to distribute the estate, the court lacked the authority to order the district clerk to do the same after the funds from the sale of the property were deposited into the registry of the court. Kanz does not complain, however, that the beneficiaries did not get their share of the estate; that the receiver sold the property for too low a sum; or that the beneficiaries incurred lengthy delays in receiving their share of the estate from the district clerk. Rather, Kanz complains that the trial court’s order interfered with his duties as an independent executor. Even assuming that the trial court did violate section 149B(b) of the Texas Probate Code, we hold it was harmless. See Tex.R.App. P. 44.1(a) (“No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment ... ”). This being a one asset liquidation and distribution, a substitute independent executor would not have improved the beneficiaries’ recovery.

We overrule Kanz’ second issue.

The judgment of the trial court is affirmed.

GRAY, J., dissents.

. The trial court ordered a receiver to sell the family farm, the sole remaining asset of the estate. After the receiver sold the property, he placed the funds from the sale in the registry of the court.

. Section 149C(c) of the Texas Probate Code states: "An independent executor who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in the removal proceedings.”

. The trial court’s findings of fact, relating to Kanz’ actions as independent executor, were as follows:

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6. Defendant Jack Kanz was guilty of either gross misconduct or gross mismanage*314ment of his duties as independent executor in failing to wind up the matters of the estate and in trying to wrongfully close the estate.
7. Defendant Jack Kanz failed to properly wind up the affairs of the estate and clear up title to the real estate.
8. Defendant Jack Kanz wrongfully attempted to close the estate and distribute real estate to the legatees that he knew the estate did not own. In doing so, Defendant willfully failed to perform a legal duty, and intentionally committed a wrongful act, thereby breaching his fiduciary duty to the legatees and causing actual harm to the legatees, as evidenced by the considerable delay and expense required for the settling of the estate.
9. Defendant Jack Kanz’ attempting to defend his own gross misconduct and gross mismanagement is not an action taken in good faith.
10. Defendant Jack Kanz [sic] failure to clear up the title issues and properly wind up the affairs of the estate necessitated the filing of Plaintiff's action to exchange the real property to clear up the title and for the Court to appoint a receiver and order a sale and distribution.

* ⅜ ⅜

. Kanz argues that in Garcia, the trial court held that reimbursement of expenses was mandatory under section 149C(c). Garcia v. Garcia, 878 S.W.2d 678, 680 (Tex.App.—Corpus Christi 1994, no writ). We disagree.

Garcia is distinguishable from our present case because the appellant in Garcia appealed the trial court’s failure to charge the appellee personally for the attorney’s fees she expended in her removal suit against him, while Kanz appealed the trial court's finding of fact regarding his good faith defense. Id. Because the appellant in Garcia failed to challenge the trial court’s finding that the appellee did not defend the removal action in good faith, the court determined that under section 149C(c), the estate was required to pay the appellee’s attorney’s fees. Id. We do not view Garcia as authority that section 149C(c) requires the mandatory reimbursement of attorney’s fees for the defense of a removal suit.

. In their brief, the appellees posit an explanation for the trial court’s failure to remove Kanz as independent executor. They state that the trial court had appointed a receiver to sell the last remaining asset of the estate and that the proceeds from that sale were distributed to the beneficiaries. They suggest that because there were no remaining assets in the estate and essentially nothing left for an executor to do, that it would be a waste of judicial resources for the trial court to remove Kanz and appoint a new executor.