Opinion
05-22-00538-CV
01-24-2024
IN RE: THE MATTER OF THE ESTATE OF BEDA GARCIA BARNETT, DECEASED
On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-19-02899-3
Before Justices Molberg, Pedersen, III, and Miskel
MEMORANDUM OPINION
KEN MOLBERG, JUSTICE
Appellant Kathy Roux, attorney ad litem for unknown heirs of decedent Beda Garcia Barnett, appeals the trial court's judgment declaring heirship and its order awarding attorney's fees. Roux argues the trial court abused its discretion in determining that (1) the decedent had a surviving spouse, (2) Roux was entitled to just $400 in attorney's fees, and (3) Roux acted outside the scope of her appointment and discharging her. For the reasons explained below, we affirm in this memorandum opinion.
I. Background
Stacey Wray Barnett filed applications to determine heirship, for court-created independent administration, and for issuance of letters of independent administration in which she stated that decedent died on June 22, 2019, without a will and that a necessity existed for the administration of her estate. The application listed decedent's heirs as spouse Stacey Barnett, father Mariano Garcia, and mother Enedina Nunez. Stacey was also listed as decedent's surviving spouse on the death certificate filed with the trial court. The applications further explained that decedent was married once-to Stacey-they married on or about October 20, 2012, and they never divorced; there were no children born to or adopted by decedent.
The application noted Garcia died on August 1, 2019, and listed his estate as heir.
On November 6, 2019, Roux was appointed attorney ad litem for unknown heirs of decedent's estate. Stacey filed an application for temporary administration on March 3, 2021. A few days later, Roux filed an answer to the application for determination of heirship and an objection to the application for temporary administration. Among other things, Roux challenged Stacey's standing to bring her applications to determine heirship and for temporary administration, arguing that Stacey was not the spouse of decedent. Roux contended that Stacey provided her "with a certificate of marriage registration, but not a marriage license." Nowhere in her answer did Roux state she identified any unknown heirs of decedent. Roux later submitted a nine-page memorandum in support of her answer in which she argued that under "both New York and Texas law . . . [Stacey] is not the surviving spouse of decedent because she was never married to decedent."
On March 23, 2022, Roux filed a report in which she, among other things, reiterated her opinion that the listing of the heirs of decedent in the application to declare heirship was not correct because Stacey was not an heir and that the entire estate should go to decedent's parents.
The trial court held a hearing on the determination of heirship on March 28, 2022. Louis Rowlett, a friend of decedent, testified that decedent and Stacey married on October 20, 2012, in the state of New York and never divorced. He said decedent never gave birth to or adopted any children, and that she was survived by her parents. He did not know of any other people who could be decedent's heirs. Roux did not cross-examine Rowlett. Decedent's mother-in-law, Karen Barnett, testified that decedent was married once, to Stacey. She stated she was present at their wedding in New York on October 20, 2012. Karen Barnett said decedent did not have any children and was never divorced from Stacey.
After this testimony, Roux gave her report to the court in which she reiterated her legal arguments that at the time of the marriage in question, "the statute in New York that authorized marriage . . . did not authorize same-sex marriage on constitutional grounds[,]" and that, "[i]n addition to that, in 2012, Texas law did not recognize same-sex marriages, whether they were -- whether they occurred either in Texas or in any other jurisdiction[.]" Counsel for Stacey responded, in part, by noting that,
the case law in Texas which has, Your Honor, established the retroactivity of marriages in this state after that, and that she misstates what is the current law of the land, Your Honor, and so I would like the Court to focus on what the current law of the land is. I'm happy to brief it, but I'm sure the Court knows exactly what it is, and also, in addition to a lawful marriage that occurred in New York, where [same-sex] marriage was legal in 2012, Texas also has common-law marriage, Your Honor.
The trial court stated it was "looking at a death certificate where this is an official record that is holding them out as being -- her spouse as being Stacey Wray Barnett." Counsel for Stacey also pointed out the marriage license form, certificate of marriage, registration of marriage, and identifying documents all showed decedent and Stacey were married. Counsel for decedent's mother and father agreed with the list of heirs proposed-Stacey and decedent's parents-in Stacey's applications.
The trial court ordered a division of property as follows: all community property, all separate personal property, and one-half of separate real property to Stacey; one-fourth share of separate real property to decedent's father's estate; and one-fourth share of separate real property to decedent's mother. The court found "no other unknown heirs or known heirs whose whereabouts are unknown." The trial court entered findings of fact and conclusions of law, finding, inter alia, that Roux did not locate any unknown heirs.
Regarding ad litem attorney's fees, the court stated it would take into consideration "submission of the fees by affidavits of the ad litem," as well as affidavits from other attorneys. The trial court gave Roux two days to submit affidavits and otherwise discharged her as attorney ad litem for unknown heirs. The trial court instructed Roux as follows:
The Court appointed you to represent the interest of unknown heirs or disabled heirs or known heirs whose whereabouts are unknown. The Court did not appoint you to brief anything about the law in New York, just to locate unknown heirs or known heirs whose whereabouts are unknown, so I'm instructing you not to submit anything for payment that is not relative to those issues because I'm not going to allow it.
Over the course of the proceedings, Roux filed multiple applications for attorney's fees. In her applications, she sought $1,531.75 for expenses and 5.3 hours of work; $8,235.06 for expenses and 25.9 hours of work; $774.14 for expenses and 2.6 hours of work; and $9,534.27 for 32.9 hours of work and expenses. She sought $20,081.22 in total. On April 1, 2022, Roux filed an affidavit as to legal services and fees, stating, among other things, that the fees and costs in her applications were reasonable. She also filed an affidavit from R. Kevin Spencer, who stated he devoted a minimum of fifty percent of his practice to estate planning and probate and/or guardianship and that it was his opinion that the fees sought by Roux were reasonable and not excessive. The trial court ordered Roux to be paid $400 in attorney's fees.
II. Discussion
Roux first argues the trial court abused its discretion in finding that Stacey is the surviving spouse of decedent. Appellee Howard Reiner, administrator of decedent's estate, responds by arguing the trial court did not abuse its discretion. We agree with appellee.
Roux was appointed attorney ad litem for any unknown heirs of the estate. Each "unknown heir" of the decedent who is the subject of the proceeding must be made a party to a proceeding to declare heirship. See Tex. Estates Code § 202.008. The trial court shall appoint an attorney ad litem in a proceeding to declare heirship to represent the interests of heirs whose names or locations are unknown. Id. § 202.009(a). The court may appoint an attorney ad litem in any probate proceeding to represent the interests of any person, including unknown heirs. Id. § 53.104. Thus, Roux's appointment was to determine whether there were any unknown heirs to the estate and represent their interests. See Estate of Howells, No. 05-20-00720-CV, 2022 WL 1222826, at *5 (Tex. App.-Dallas Apr. 26, 2022, no pet.) (mem. op.) (attorney ad litem for unknown heirs' appointment was "to investigate unknown heirs").
Roux reported to the trial court that she investigated whether any unknown heirs existed and did not find any. Moreover, she does not contend on appeal that there are any unknown heirs to the estate. In the trial court, Roux's complaint against the application to declare heirship was not that it would have deprived unknown heirs but decedent's parents, who were represented by counsel and did not agree with Roux's argument.
Roux cites cases holding that the attorney ad litem should exhaust all remedies available to her client and should represent her client on appeal when it is in the interest of her client to do so, see Executors of Tartt's Estate v. Harpold, 531 S.W.2d 696, 698 (Tex. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.), and that an attorney ad litem for unknown heirs has authority to oppose the appointment of a temporary administrator and to apply for the appointment of an independent third-party administrator, see In re Estate of Stanton, 202 S.W.3d 205, 208 (Tex. App.- Tyler 2005, pet. denied).
Estate of Stanton in particular helps illuminate the incoherence of Roux's position. In that case, the decedent died intestate, unmarried, and childless, and his heirs were therefore the descendants of his parents' siblings. 202 S.W.3d at 207. Evidence showed a substantial investigation by an heir tracing service was required "to trace the heirship of the decedent and to locate the heirs" and that "there was a large number of potential heirs." Id. at 210. Appeal was perfected, not from a determination of heirship, but from various preliminary orders. Id.
Here, by contrast, Roux appeals-purportedly on behalf of the unknown heirs-from a judgment declaring heirship without challenging the trial court's finding that there were no unknown heirs. Furthermore, no evidence presented to the trial court indicated other potential heirs.
Even supposing Roux as attorney ad litem had authority to bring this claim, we conclude sufficient evidence supported the court's heirship determination. We apply the following standard of review in determining whether legally and factually sufficient evidence supports a finding:
We review a trial court's findings of fact under the same legal and factual sufficiency of the evidence standards used when determining if sufficient evidence exists to support an answer to a jury question. When an appellant challenges the legal sufficiency of an adverse finding on which he did not have the burden of proof at trial, he must demonstrate there is no evidence to support the adverse finding. When reviewing the record, we determine whether any evidence supports the challenged finding. If more than a scintilla of evidence exists to support the finding, the legal sufficiency challenge fails. When an appellant challenges the factual sufficiency of the evidence on an issue, we consider all the evidence supporting and contradicting the finding. We set aside the finding for factual insufficiency only if the finding is so contrary to the evidence as to be clearly wrong and manifestly unjust. The trial court, as factfinder, is the sole judge of the credibility of the witnesses. As long as the evidence falls "within the zone of reasonable disagreement," we will not substitute our judgment for that of the fact-finder.Wyde v. Francesconi, 566 S.W.3d 890, 894 (Tex. App.-Dallas 2018, no pet.) (internal citations omitted).
As stated above, Louis Rowlett and Karen Barnett testified Stacey and decedent were married in New York on October 20, 2012, and they never divorced. No other testimonial evidence contradicted their testimony. The trial court also had before it in the clerk's record decedent's death certificate, which listed Stacey as decedent's surviving spouse; a certificate of marriage registration from the New York State Department of Health that stated decedent and Stacey were married on October 20, 2012 in New York "as shown by the duly registered license and certificate of marriage on file in this office"; a certificate of marriage reflecting the same; and a New York marriage license obtained October 19, 2012. The trial court in its findings of fact indicated it reviewed these documents, and no objection was levied against their consideration.
Roux argues this was not enough; she cites only provisions of the family code relating to applying for a marriage license, the marriage ceremony, and return of the license. See Tex. Fam. Code §§ 2.001, 2.008, 2.201, 2.202, 2.206. But none of these statutes address the evidence required to prove a marriage in a probate proceeding. Given the above, we conclude evidence supports the trial court's finding and that no evidence contradicted the finding. Roux's legal argument about the invalidity of the marriage has not been presented to this Court with citations to pertinent authorities and is thus inadequately briefed. See Tex. R. App. P. 38.1(i). Accordingly, we conclude legally and factually sufficient evidence supports the trial court's finding. Roux's first issue is overruled.
In her second issue, Roux contends the trial court abused its discretion in determining her attorney's fees because her evidence proved far more than the $400 she was awarded. An attorney ad litem appointed under § 53.104 is entitled to reasonable compensation for services provided in the amount set by the court. Tex. Estates Code § 53.104(b). We review the amount of attorney's fees awarded to an attorney ad litem for an abuse of discretion. Estate of Howells, 2022 WL 1222826, at *4. The lodestar method is the starting point for determining reasonable and necessary attorney's fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019). Under this method, the factfinder determines a base lodestar figure, which is calculated by the reasonable hours worked multiplied by a reasonable hourly rate. Id.
Further, the parties agree that the Guidelines for Court Approval of Attorney Fee Petitions, formulated and approved by the probate courts of Dallas County, governed Roux's appointment, though we observe that by their own terms these guidelines "are not absolute rules." The county guidelines in the record before us state that if a "petition seeks attorney fees in excess of $2,500, it must contain supporting affidavits from two other attorneys who have Probate, Guardianship, and Estate Planning experience and who have examined the request for attorney fees." The guidelines further reflect that when,
an ad litem can be compensated from a solvent estate, the Court's award of reasonable attorney's fees usually begins with the Court determining if the representation provided by, and reasonably required of, the ad litem, is "typical" or "normal." In a "typical" or "normal" case, the Court ordinarily awards total fees of between $300-$600 to an attorney ad litem. In determining whether representation is "typical" or "normal," the Court considers matters such as the type of case, the complexity or potential complexity of the case in terms of the number of parties and issues involved, and any unusual circumstances. These factors determine the extent to which the fee allowed should be more than, equal to, or less than the typical or normal fee.
Given that Roux failed to support her fee applications with affidavits from two other attorneys with probate experience who examined the fee request, we conclude the trial court did not abuse its discretion in ordering Roux be paid within the range specified for typical cases. Furthermore, independent of any affidavit requirement in the guidelines, the evidence Roux provided does not demonstrate the reasonableness of her fee request. Roux was appointed to represent the interests of any unknown heirs, and she acknowledges there is no evidence of any unknown heirs. The extra time she spent on this case falls outside the scope of that appointment. As we stated in another case where she was ad litem, Roux "ignores the fact that the trial court repeatedly questioned her as to why she should be compensated for any time she spent that was unrelated to her appointment as an attorney ad litem for unknown heirs." Estate of Howells, 2022 WL 1222826, at *5.
Roux refers to an attorney ad litem practice manual to justify her work in this case, yet that manual distinguishes between "plain Jane" cases and "mystery" cases. In event of the former, the manual advises the ad litem as follows: "If it is simple to start with, it should end up that way. . . . It is not your job to duplicate all efforts made by the attorney for the applicant. . . . You do not do the spadework unless there truly are unknown heirs." Steve M. King, The Ad Litem Manual for 2017 for Guardianship & Heirship Proceedings in Texas Probate Courts, 48 (rev. date July 2017). The manual indicates a $400 fee is proper for such cases. Id. at 46. We conclude the trial court did not abuse its discretion in ordering $400 in attorney's fees and overrule Roux's second issue.
The same reasons justifying the trial court's attorney's fees order support the court's finding that Roux acted outside the scope of her appointment and its discharge of her. Cf. Coleson v. Bethan, 931 S.W.2d 706, 714 (Tex. App.-Fort Worth 1996, no writ) (reviewing removal of attorney ad litem under abuse of discretion standard). We conclude the trial court did not abuse its discretion, and we overrule Roux's final issue.
III. Conclusion
Having overruled Roux's three issues, we affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover his costs of this appeal from appellant.
Judgment entered this 24th day of January, 2024.