Opinion
07-22-00355-CV
08-25-2023
IN THE ESTATE OF JUDY LANG, DECEASED
On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CV05688, Honorable Curt Brancheau, Presiding
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
ALEX YARBROUGH, JUSTICE
Appellant, Juli Lang DeMoss, files this appeal challenging sanctions granted in favor of Appellee, Britney M. Fields. Juli DeMoss raises the following issues: (1) sufficiency of the evidence supporting sanctions; (2) waiver of sanctions for failure to set a hearing; and (3) sufficiency of the evidence to support the attorney's fees awarded. Because sanctions were improperly imposed, we reverse the judgment of the trial court as to the sanctions award and remand for further proceedings.
Background
This appeal arises from a will contest in a probate proceeding. Britney Fields is a grandchild of the decedent, Judy Lang, and Juli DeMoss is one of Judy's daughters. Britney is Juli's niece.
Judy Lang died in August 2021. In February 2022, Britney applied to the county court to probate an alleged copy of the decedent's will. Two months later, Juli filed a "counter application" for an independent administration of the estate alleging the will was invalid and made without testamentary capacity or with undue influence. The entire proceeding was then transferred to district court. After the transfer, Britney filed a motion for sanctions under Rule 13 of the Texas Rules of Civil Procedure and Chapter 10 of the Texas Civil Practice &Remedies Code. Britney never set her motion for hearing.
There is no explanation for the six-month delay in filing the application to probate Judy Lang's will.
This is Juli's third will contest.
Britney argues the motion was heard at the same time as trial. However, there is no evidence in the record the trial court took up and considered the motion during the trial proceedings.
The district court conducted a bench trial on the sole issue of the validity of the will. At the conclusion of the trial, the court found and ordered:
• the will presented by Britney was the last will and testament of Judy Lang;
• Juli violated the in terrorem clause of the will by not filing her will contest in good faith, and divested her of any devise under the will; and
• Juli filed a frivolous action in violation of Chapter 10 and sanctioned her personally in the amount of reasonable and necessary attorney's fees incurred by Britney.
The trial court also issued letters testamentary to Britney and appointed her executrix of Judy's estate. Juli appealed only the imposition of sanctions.
Standard of Review
We review a trial court's sanctions order for abuse of discretion. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020) (citations omitted). A trial court abuses its discretion if it acts without reference to guiding rules and principles such that the ruling is arbitrary or unreasonable. Id. Although we view conflicting evidence favorably to the court's decision, we are not bound by a trial court's fact findings or conclusions of law and must, instead, review the entire record independently to determine whether the trial court abused its discretion. Id. A decision lacking factual support is arbitrary and unreasonable and must be set aside. Id. But we will not hold a trial court abused its discretion in levying sanctions if some evidence supports its decision. Nath v. Tex. Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014) (citations omitted).
Generally, courts presume pleadings and other papers are filed in good faith. Id. The party seeking sanctions bears the burden of overcoming this presumption. Id. We examine the circumstances existing at the time of the pleading to determine the party's motives. Foust v. Hefner, No. 07-13-00331-CV, 2014 Tex.App. LEXIS 8880, at *3 (Tex. App.-Amarillo Aug. 12, 2014, no pet.) (mem. op.) (citing R.M. Dudley Constr. Co., Inc. v. Dawson, 258 S.W.3d 694, 711 (Tex. App.-Waco 2008, pet. denied)). The sanctioned party's lack of success or pursuit of an unpopular or ill-advised claim does not necessarily make the certification of the pleading false. Id.
Analysis
Sufficiency of Evidence to Support Sanctions
Juli contends the trial court did not receive sufficient evidence to support the imposition of sanctions against her under Chapter 10 of the Texas Civil Practice &Remedies Code. She argues the evidence is deficient as follows:
Insufficiency of the evidence may be raised as an issue for the first time on appeal in a civil bench trial. Tex.R.App.P. 33.1(d).
(a) There is no evidence of Juli's motive or purpose in filing her counterapplication;
(b) the trial court imposed sanctions based upon Juli's presentation of evidence at trial as opposed to a factual basis for filing her pleadings;
(c) the evidence did not identify Juli specifically as the "offender" to support imposing sanctions on her personally; and
(d) the conduct identified by Britney as sanctionable are Juli's legal contentions, not allegations of fact, and therefore were not properly subject to monetary sanction.
In order to determine the sufficiency of the evidence, we must first determine the basis upon which the sanctions were awarded by the trial court. Because there is no evidence of a show cause hearing, the trial court did not have the authority to issue monetary sanctions on its own initiative. TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.002(b), 10.004(e). Thus, the only source from which the trial court could have issued sanctions is Britney's motion.
Britney's motion specifies the following conduct as sanctionable under Chapter 10:
[] [Juli] claims Judy Lang died intestate, which is untrue. This allegation or factual contention does not have evidentiary support. Accordingly, [Juli's]
counterapplication[sic] is presented for an improper purpose, including to harass and/or cause unnecessary delay and/or needless increase in the cost of litigation, and the Court should sanction [Juli] for bringing this suit.
[] [Juli] claims proposed executor, Britany[sic] Fields, is unsuitable to serve as executor, which is untrue. This allegation or factual contention does not have evidentiary support. Accordingly, [Juli's] counterapplication [sic] is presented for an improper purpose, including to harass and/or cause unnecessary delay and/or needless increase in the cost of litigation, and the Court should sanction [Juli] for bringing this suit.
Britney proposed $10,000 and reasonable and necessary attorney's fees as sanctions. The motion for sanctions, though it does not specifically quote Juli's pleading, points to the following statements in Juli's "counter-application":
[] Decedent died intestate on August 31st[sic], 2021, at Dumas, Moore County, Texas, at the age of 80 years....
[] Decedent allegedly left a will dated in 2020. [Juli] denies this happened according to the Texas Estates Code. [Juli] believes undue influence, lack of testamentary capacity, duress, and possible fraud occurred throughout.... [Juli] believes the court will find Britney unsuitable to carry out the duties of an executor.
After the bench trial, the court made a pronouncement of its judgment and then reduced it to writing. The following paragraphs from the signed judgment concern the sanctions:
The Court further finds that [Juli] presented no evidence of any person causing undue influence on Judy Lang or that Judy Lang lacked testamentary capacity. The Court further finds that the Counter-Application is frivolous and violates Sections 10.001 et. seq. of the Texas Civil Practice and Remedies Code and that sanctions against [Juli] are appropriate.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that a judgment for sanctions is entered against [Juli] in the amount of
$15,555.90, which is the amount of the reasonable and necessary attorney's fees and expenses [Britney] incurred because of [Juli's] frivolous Counter-Application.
Although there were no findings of fact or conclusions of law issued by the trial court, it was required to "describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed." § 10.005. The recitation of the trial court demonstrates sanctions were based on finding a lack of evidentiary support for the factual contentions in Juli's pleading. § 10.001(3).
Compare §§ 10.001(2), 10.004(d) (court may not award monetary sanctions against represented party for legal contentions unsupported by law).
Since the trial court's basis for imposing sanctions was a lack of evidentiary support, Juli's sub-issue (a), the court did not hear evidence of her motives or credibility, is not relevant - motives and credibility inquire into whether the pleading is brought for an improper purpose, not the evidence supporting the pleading. Juli's sub-issue (c), the court did not find she was the "offender," is similarly misplaced as the factual contentions, as opposed to legal contentions, would have come from Juli herself and not her attorney.Juli's sub-issue (d) argument, her allegations were legal contentions and not factual allegations, is simply without merit: whether or not Judy Lang, the decedent and testator, had capacity to execute her will is a question of fact only, not a claim or a defense. We overrule Juli's sub-issues (a), (c), and (d).
This Court acknowledges there is a possibility for an unscrupulous attorney to simply fabricate facts in a pleading his client is unaware of. In this case, Juli acknowledged and maintained her position Judy Lang lacked testamentary capacity throughout the litigation, and this information could only have come from Juli. Without an allegation by Juli that her attorney acted against her wishes, we can only conclude this factual contention came from Juli, and therefore she is the "offender," not her attorney.
Juli's allegation of lack of testamentary capacity may be more appropriately described as a denial in this case. Because the will contest took place before the will was admitted to probate, at the time of Juli's pleading, Britney bore the burden of proving testamentary capacity. Seigler v. Seigler, 391 S.W.2d 403, 404 (Tex. 1965); Schindler v. Schindler, 119 S.W.3d 923, 931 (Tex. App.-Dallas 2003, pet. denied) rev'd on other grounds, Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019). But, nonetheless, it is not a legal contention.
Juli's remaining sub-issue (b), is more substantive. She argues the court applied the wrong standard of inquiry by declaring she "presented no evidence" supporting her factual contentions. The "vantage point for assessing evidentiary support is at the time the pleading is filed." Nath, 446 S.W.3d at 369. The evidence to support the pleading need not be ultimately admissible at trial. Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019). In this case, the evidence introduced at trial demonstrated Juli had the following evidence at the time she filed her pleading:
• a letter from Juli's attorney to Britney's probate attorney requesting a copy of the will; • a copy of the will before Britney applied to have it admitted to probate;
• Juli's own testimony regarding her personal interactions with her mother and her personal beliefs regarding her mother's capacity; and
• a text message from her mother.
Juli attempted to introduce several additional pieces of evidence at trial, including out-of-court statements by Judy's doctors, which the trial court excluded based upon objections from Britney's attorney. The trial court's failure to hold a separate evidentiary hearing as required by statute on the issue of sanctions also did not permit Juli to develop the evidence. Tex. Civ. Prac. & Rem. Code § 10.003. Nonetheless, Juli's attorney failed to preserve error by making a proffer of the evidence. TEX. R. EVID. 103(a)(2), (c). Therefore, as they are not before us on this record, we cannot surmise what additional evidence may have supported Juli's assertion Judy Lang lacked testamentary capacity or was unduly influenced.
Of the evidence available to Juli at the time of the filing of her "counter-application," only the text message from her mother and her own beliefs could have supported her allegation her mother lacked testamentary capacity during the signing of the will. While some testimony regarding hospitalizations was adduced, the hospitalizations were not related to any mental infirmity. No other witnesses were introduced to identify any mental infirmity of the testator at the time of the signing of her will. Moreover, the text message, alone, was not enough to establish incapacity of Judy Lang at the moment she signed her will. There was simply a dearth of evidence regarding Judy Lang's testamentary capacity available to Juli at the time she filed her pleading. And, having a copy of the will, witnessed by Judy's probate attorney who testified at trial Judy had testamentary capacity, was evidence contrary to Juli's position.
Judy Lang's probate attorney, who drafted and witnessed the self-proving will, was also initially Britney's attorney for the purposes of probating the will. Because an attorney should not agree to take work in which he potentially may be a witness, fortunately, Britney obtained other counsel during the will contest before a motion to disqualify was presented to the trial court. Tex. Disciplinary R. Prof'L Conduct 3.08.
Under these circumstances, we do not find the trial court abused its discretion in finding Juli lacked sufficient evidentiary support for her factual contentions under Chapter 10. § 10.001(3). Juli's first issue is overruled.
Waiver of Claim for Sanctions
Juli's second issue contends Britney waived her claim of sanctions by failing to set a hearing or obtain a ruling on sanctions before trial. A trial court must hold an evidentiary hearing to make the necessary factual determinations before imposing sanctions under Chapter 10 of the Texas Civil Practice &Remedies Code. §§ 10.001, 10.003; R.M. Dudley Constr. Co., 258 S.W.3d at 709; accord Corea v. Bilek, 362 S.W.3d 820, 827-28 (Tex. App.-Amarillo 2012, no pet.) (recognizing the requirement for evidentiary hearing before imposition of sanctions). The failure to obtain a pretrial ruling on sanctionable conduct before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). Waiver only applies to conduct which was known to the movant before the commencement of trial. Remington Arms Co., 850 S.W.2d at 170; Aquarium Env'ts, Inc. v. Elgohary, No. 01-12-01169-CV, 2014 Tex.App. LEXIS 4732, at *20 (Tex. App.- Houston [1st Dist.] May 1, 2014, pet. denied) (mem. op.) ("[S]anctions for alleged violations of [C]hapter 10 known to the movants before trial are waived if a hearing and ruling are not secured pretrial.").
However, a review of the record finds no response to the motion for sanctions and no request, objection, or motion made during trial or post-judgment complaining of lack of notice of hearing and waiver of Britney's motion for sanctions. TEX. R. APP. P. 33.1; Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.-Houston [1st Dist.] 1996, no writ). Thus, the issue was not preserved for appeal. Juli's second issue is overruled.
Sufficiency of Evidence to Support Attorney'S Fees
Juli argues the evidence presented by Britney is insufficient to support the award of attorney's fees. When reviewing a trial court's award of attorneys' fees, we must ensure the record contains sufficient evidence to support such an award. Yowell v. Granite Operating Co., 620 S.W.3d 335, 354 (Tex. 2020) (citing Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 505 (Tex. 2019)). The party seeking attorney's fees bears the burden of proof and must supply enough facts to support the reasonableness of the amount awarded. Yowell, 620 S.W.3d at 354 (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762-63 (Tex. 2012)). If there is insufficient evidence in the record to uphold the trial court's award of those fees, we must reverse. Yowell, 620 S.W.3d at 354 (citing El Apple, 370 S.W.3d at 763-64). "Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services." Webb v. Dynamic Jmc Builders, No. 07-22-00247-CV, 2023 Tex.App. LEXIS 4536, at *10 (Tex. App.-Amarillo June 27, 2023, no pet.) (mem. op.) (citing Rohrmoos Venture, 578 S.W.3d at 498). Without the details regarding the work done, time spent on tasks, and how fees were calculated, attorney testimony lacks the substance required to uphold a fee award. Rohrmoos Venture, 578 S.W.3d at 505.
Britney bore the burden of presenting sufficient evidence of her reasonable attorney's fees. §§ 10.002(c), 10.004(c)(3). At the end of the bench trial, Britney's attorney testified as to the respective reasonable hourly rates charged by her, an associate, and the paralegal of her law firm. The attorney also testified as to the number of hours worked by each legal professional, and then the total of fees from multiplying the number of respective hours worked by the respective hourly rate of each person. However, the attorney neglected to present any billing statements, describe the work performed, or testify as to the reasonableness or necessity of the work performed or the time expended.
This evidence is insufficient as a matter of law to support the award of attorney's fees. The proper remedy when the evidence of attorney's fees is insufficient is to remand the issue for redetermination by the trial court. Silva-Jones v. Hobbs, No. 07-22-00230-CV, 2023 Tex.App. LEXIS 3450, at *10 (Tex. App.-Amarillo May 22, 2023, no pet.) (mem. op.) (citing Sloane v. Goldberg B'Nai B'Rith Towers, 577 S.W.3d 608, 622 (Tex. 2019)); Nath v. Tex. Children's Hosp., 576 S.W.3d 707, at 709-10 (Tex. 2019) (adopting and applying the Rohrmoos Venture lodestar standard for attorney's fees as sanctions under Chapter 10). We conclude the trial court abused its discretion in awarding attorney's fees as sanctions. Issue three is sustained.
Conclusion
We reverse the judgment only as to the amount of attorney's fees awarded as sanctions, affirm the remainder of the judgment, and remand for further proceedings in accordance with this opinion.