Summary
holding appellant waived her complaints that trial court's grant of motion to withdraw by counsel violated her constitutional right to representation by effective counsel because she failed to raise complaint in the trial court
Summary of this case from In re A.W.L.Opinion
No. 01-08-00277-CV
Opinion issued March 25, 2010.
On Appeal from the 220th District Court, Hamilton County, Texas, Trial Court Cause No. HCCV-06-13506.
Pursuant to Government Code section 73.001, the Supreme Court of Texas has transferred this cause from the Tenth Court of Appeals to the First Court of Appeals. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
This appeal arises from a contested probate proceeding between appellant, Maria Santos Donihoo, who is a beneficiary of the estate of Edward Donihoo, deceased, and appellees, Virginia Lewis and Ellen Carson, who are the independent executrixes of the estate. Appellant raises eight issues challenging the trial court's judgment.
We affirm.
Factual Procedural Background
Edward Donihoo died testate on March 11, 2006. In his Last Will and Testament, Donihoo bequeathed the majority of his estate to his common-law wife, Maria Santos Donihoo ("Maria"). Donihoo's will specifically gave Maria (1) 908.879 acres of real property located in Hamilton County, Texas and "all farm equipment, household goods," and personal property "situated on the 908.879 acres." The will also provided that Donihoo gave Maria "[a]ll monies standing in my name . . . on deposit at any bank, savings and loan, or other depository whatsoever" and "all funds of money which may be on deposit in my name with Merrill Lynch or any other investment brokerage house; and all stocks, bonds, and securities. . . ." From these funds given to Maria, the will specifically excepted sums of money that had been bequeathed to three other individuals in the will and
any fund or deposit standing in my name or in the name jointly with any other person which I have designated "Tax Account," or have by any other designation made it apparent that such fund or deposit is to be used for payment of debts, claims and taxes upon my estate.
The will continued, "Any such 'tax account' is and shall be a part of the residue of my estate."
The will also directed that all debts and taxes owed by the estate should "be paid in full out of my residuary estate." It dictated that no debt or taxes owed by the estate "shall ever be paid from the specific bequests and devises made by me herein, until the assets of my residuary estate and the proceeds of sale thereof shall be totally exhausted for the purpose of paying such debts, expenses and taxes."
The will also reflected that Donihoo bequeathed "all the rest and residue of my estate (residuary estate)" to his sisters, Virginia Lewis and Ellen Carson, and to his brother, Billy Donihoo. In his will, Donihoo also named his sisters, Lewis and Carson, as the independent co-executrixes ("the executrixes") of his estate.
Following Donihoo's death, the executrixes filed an application to probate Donihoo's will in the constitutional county court of Hamilton County. The county court signed an order admitting the will to probate and ordering that letters testamentary be issued to the executrixes. Several months later, the executrixes filed an "Inventory, Appraisement, and List of Claims," which was approved by order of the county court. The inventory was divided between assets identified as either Donihoo's separate property or community property. Among the assets listed as Donihoo's separate was a promissory note. The inventory listed it under the heading "miscellaneous" and described it as a "real estate lien note dated August 29, 2005, from McCreary/Donihoo Partners, Ltd." The inventory valued the promissory note at $1,630,635. The executrixes represented the total value of Donihoo's estate to be $5,587,623.77.
Maria filed an objection to the inventory, indicating that she had not seen it before it was approved by the county court. Maria complained of "the inclusion of the Promissory Note as a 'miscellaneous' asset." She asserted, "This Promissory Note should not be included on the inventory because it is the separate personal property of Maria Santos Donihoo, thus not part of the estate."
Maria also filed an "Application to Remove Independent Co-Executri[x]es." Maria sought removal on the ground that the executrixes had "embezzled and misapplied all or part of the estate." In support of the allegation, Maria attached a copy of an accounting that had been submitted to the court by the executrixes. The accounting reflected that the executrixes had taken $126,249.98 from four financial accounts identified in the inventory and had placed the money in a separate "estate account," which was used to pay taxes and debts owed by the estate.
Maria also pointed to the will's language that no debt or taxes owed by the estate "shall ever be paid from the specific bequests and devises made by me herein, until the assets of my residuary estate and the proceeds of sale thereof shall be totally exhausted for the purpose of paying such debts, expenses and taxes." Maria asserted, "It is clear from a careful reading of Decedent's Will that ALL debts of the estate were to have been paid out of the residue of the estate, and that no specific bequest was to be disturbed until the residue was 'totally exhausted.'" She continued, "The [the executrixes] very carefully and purposefully misapplied just those portions of the estate bequeathed to [Maria] to pay estate expenses, and failed to follow specific instructions in the will as to how those debts and expenses were to be paid."
After Maria filed the objection to the inventory and the motion to remove the executrixes, the county court signed an order, "in accordance with Section 5 of the Probate Code," which transferred the contested portion of the probate proceeding to the District Court of Hamilton County for resolution.
Maria filed a petition for declaratory judgment in the district court (hereinafter "trial court"). She sought a declaration that "the promissory note in the face amount of $1.6 million," which was identified in the inventory, had "passed by inter vivos gift" to Maria before Donihoo's death and "constitutes her sole and separate property." Maria further requested a declaration that there was "no residuary estate" because the estate did not "possess" the $1.6 million promissory note or a "tax account."
The executrixes answered and filed a counter-claim for declaratory relief. In support of their claim, the executrixes alleged that the $1.6 million promissory note was the separate property of Donihoo. The executrixes further alleged that Maria had improperly removed the promissory note from Donihoo's safe deposit box. They asserted that, despite being requested to do so, Maria had "repeatedly refused" to provide the promissory note to the executrixes.
The executrixes requested that the trial court order Maria "to turn over possession" of the promissory note to the executrixes. The executrixes asserted that they had been "required to retain the services of legal counsel to recover" the promissory note, which was "wrongfully withheld" by Maria. The executrixes requested that they recover "all costs and attorneys' fees incurred" by them "through trial and appeal." The executrixes also asserted that they were entitled to recover "costs and reasonable attorneys' fees" pursuant to the declaratory judgment act.
The trial court conducted a hearing on Maria's motion to remove the executrixes. At the hearing, Maria asserted that the executrixes should be removed because they had not paid the estate's debts in the manner directed by the will. Maria pointed out that the will required that the estate's debts be paid from any designated "tax account" and from the residuary estate. She asserted that the executrixes' acts of taking funds from bank and brokerage accounts that had been bequeathed to her violated the terms of the will. Maria alleged that the executrixes had made no attempt to locate any account that Donihoo had designated as a "tax account" to pay the debts of the estate.
In response, the executrixes asserted that they had not been able to locate any account designated as a "tax account." To support this assertion, one of the executrixes' attorneys testified that an attempt had been made to locate such an account, and none had been found.
The executrixes argued that they had taken funds from the financial accounts bequeathed to Maria to pay the estate's taxes and debts because there were no assets in the residuary estate. Related to this argument, the executrixes asserted that the $1.6 million promissory note was an asset of the residuary estate and was not the separate property of Maria, as she claimed. The executrixes requested the trial court to order Maria to produce the original promissory note, which they alleged was in her possession. The executrixes told the court that they had requested Maria to produce the original promissory note, but she had refused.
Maria also testified at the hearing. She stated that the promissory note was in her possession and that she would produce it. The trial court denied Maria's request to remove the executrixes and ordered Maria to produce the original promissory note. In the month following the hearing, Maria claimed that she was unable to locate the promissory note. The trial court signed an order finding that the original promissory note "is lost." The court ordered that a copy of the promissory note, which was attached to an affidavit of the payor of the note, "shall henceforth be the enforceable, official, substituted-original promissory note."
Maria later non-suited her declaratory judgment claim and amended her petition to include claims against the executrixes for conversion and breach of fiduciary duty. Maria alleged that, to pay the estate's debts, the executrixes had converted funds that were her separate property and also funds that were specifically bequeathed to her under the will. Maria claimed that this was contrary to the terms of the will, which specified that the estate's debts should be paid from the "tax account" and from the residuary estate. Maria also claimed that the executrixes had breached their fiduciary duty to her by failing "to return her separate funds" and by acting "contrary to the instructions in the will."
On June 1, 2007, Maria's counsel filed a motion to withdraw. The trial court signed an order granting the motion on June 27, 2007.
The trial court called the case to trial on September 5, 2007. Maria appeared, pro se, and requested a continuance on the ground that she did not have counsel. The court agreed to reset the case until October 10, 2007. The trial court instructed Maria to retain counsel by that time.
The court called the case to trial on October 10, 2007. Maria once more asked for a continuance. Maria told the trial court that she had spoken with an attorney, who had agreed to represent her, but then had failed to appear for trial that morning. The trial court again granted the continuance and reset trial for December 5, 2007.
On December 5, 2007, Maria again arrived in court unrepresented by counsel. She told the court, "I still haven't found an attorney." The trial court reminded Maria that it had continued trial twice to allow her to find counsel. The court informed Maria "we're going forward" with trial. The trial court asked Maria if she was ready to proceed with her case. Maria told the court, "Well, I don't have no idea what we are here about, what I'm in court for. I have no papers, have been served no papers to know what's going on." The trial court then allowed the executrixes to present evidence to support their claims.
The executrixes, Virginia Lewis and Ellen Carson, testified at the bench trial. Through their testimony, the executrixes showed that the $1.6 million promissory note was Donihoo's separate property when he died. According to Lewis's testimony, the promissory note "was for the sale of land that [Donihoo] had owned since he was a very young man." Lewis told the court that Donihoo had acquired the land when he was 17 or 18 years old. Donihoo was 78 years old when he died.
In her testimony, Carson agreed that Donihoo had owned the subject property since he was 17 or 18 years old. Carson also testified that Donihoo had been married to another woman before his marriage to Maria.
Carson requested that the court approve the inventory and appraisement, which had been previously filed in the county court. She also requested that the promissory note, and monies that had been paid on the note, "pass . . . with the promissory note." Carson further testified that the executrixes "had to go through extensive proceedings just to finally determine that the [promissory note] was lost." She stated that the executrixes were required to retain counsel to ensure that "the benefits of the promissory note would pass to the proper people who were beneficiaries under the will." Carson confirmed that the executrixes requested the trial court to award them attorneys' fees "out of the case proceeds that would otherwise go to [Maria] because she is the one that caused the estate to incur these expenses."
The executrixes' three attorneys also testified at trial. The attorneys testified regarding the procedural history of the case and regarding the amount of attorneys' fees incurred by the executrixes with respect to the contested portions of the probate proceeding.
Although she was in attendance, pro se, Maria offered no evidence at trial to support her claims. She also did not cross-examine the executrixes' witnesses or object to any of their evidence.
Following trial, the trial court signed a judgment in favor of the executrixes. The judgment recited, in part, that Maria's conversion and breach of fiduciary duty claims were "not supported by any evidence." The judgment declared that the promissory note was "an asset owned by [Donihoo] at his death." The judgment ordered that the promissory note and payments that had been made on the note and deposited in the court's registry would "pass under the 'Residuary Bequest' provision of [Donihoo's will]."
The trial court also awarded the executrixes $30,000 "for legal services rendered in connection with representing the Estate in connection with the declaratory judgment proceedings" and a total of $23,000 for appellate attorneys' fees and costs. The court ordered that these awards be paid "directly from funds that would otherwise be the subject of specific bequests" to Maria under the will.
The trial court also denied Maria's objection to the inventory. The court approved the executrixes' "Inventory, Appraisement and List of Claims" and also approved the accounting filed by the executrixes' attorney.
On January 7, 2008, Maria's new counsel, Carolyn Barnes, filed a motion for new trial. In the motion, Maria alleged that she should be granted a new trial because she "had a constitutional right to be represented by counsel of her choice." She continued,"[T]he inability of [Maria's] retained counsel to be present for the hearing on December 5, 2007 was not the result of any lack of diligence or intention by [Maria], but solely the result of the undersigned counsel's inability to attend the hearing on such short notice due to a previous commitment."
Maria also alleged that the executrixes' counsel acted unethically. Maria pointed out that the executrixes' counsel had also drafted Donihoo's will. She claimed that the counsel's representation of the executrixes in the litigation was a conflict of interest. Maria further asserted that the executrixes' counsel had conspired with the executrixes to deprive Maria of "her estate and property." Maria further alleged that the evidence was insufficient to support the trial court's judgment.
It should be noted that there is no dispute that Maria has already received significant assets under the will. The executrixes have transferred title to Donihoo's 900-acre "high fence" ranch and approximately $2 million in cash and securities to Maria.
Maria's counsel called her to testify at the hearing on the motion for new trial. Maria offered testimony to show that Donihoo had given her the promissory note before his death. The executrixes objected to the relevancy of Maria's testimony, and the trial court sustained the objection. Maria's counsel then stated that she would make a bill of exception containing Maria's testimony, which the trial court permitted.
During Maria's testimony, an exchange occurred between Maria's counsel, the trial court, and the executrixes' counsel in which Maria's counsel became disrespectful to the court. The trial court warned Maria's counsel that, if she persisted, she would be held in contempt of court. Maria's counsel continued to insult the trial court. The court declared Maria's counsel to be in contempt and ended the hearing. The trial court did not expressly rule on Maria's motion for new trial, and it was ultimately overruled by operation of law.
Maria now appeals the trial court's judgment, raising eight issues.
The executrixes assert that Maria's appeal should be dismissed because her notice of appeal was untimely. The executrixes point out that Maria's notice of appeal was due on March 4, 2007. The deadline for filing a notice of appeal may be extended if, within 15 days after the filing deadline, the party files the notice of appeal and a motion requesting an extension, which contains a reasonable explanation why notice is late. See TEX. R. APP. P. 26.3; see also Verburgt v. Dorner, 959 S.W.2d 615, 617(Tex. 1997). Maria filed her notice of appeal on March 17, 2007. She also filed a motion for extension of time to file her notice of appeal, which explained why the notice of appeal was late. We granted the motion to extend time. Accordingly, Maria's notice of appeal was timely filed. See TEX. R. APP. P. 26.3.
Motion for New Trial
In her first issue, Maria contends, "The trial court abused its discretion in denying [her] Motion for New Trial and in refusing to allow her to present her evidence and complete her bill for appeal at the hearing on the Motion for New Trial." Maria argues, "There was an abuse of discretion by the trial judge in allowing his personal anger to lead to dereliction of judicial duties when he suddenly terminated the proceedings and instructed the court reporter to 'quit' taking down testimony." Maria points out, "When a motion for new trial presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence if the facts alleged by the Movant would entitle him to a new trial." She asserts, "The trial judge failed to permit the introduction of relevant and reliable evidence to prove the corruption that had occurred in securing this Final Judgment and to prove that [Maria] had a meritorious claim to the promissory note."
It is helpful to set out the exchange between the trial court and Maria's counsel, which precipitated the termination of the new trial hearing. Before the exchange, the executrixes' counsel had inquired whether Maria's testimony was intended to be part of the bill of exception. The following exchange then occurred:
THE COURT: Well, as far as I know you're still on a bill. Now you are telling me that you are not.
[Maria's counsel]: I'm not on the bill.
THE COURT: All right.
[Maria]: Mrs. Barnes, I'm sorry.
[Maria's counsel]: It's all right —
[Executrixes' counsel]: Objection on relevance.
THE COURT: Sustained.
[Maria's counsel]: It's not your fault. It's not your fault. This is what happens when people have things to hide.
[Executrixes' counsel]: I object to the side-bar, Your Honor.
THE COURT: I'll sustain that. Counsel, you're fixing to be held in contempt.
[Maria's counsel]: Why would that not surprise me, Judge? I really, really truly just knew in my gut I was coming up here for a fair and impartial hearing. I trusted that. I believed in it. I assured my client that all she had to do is tell her story and any honest, honorable court would give her a new trial. This was a gross miscarriage of justice and you would have to be blind not to see it.
THE COURT: I think justice is blind in Hamilton County as it's supposed to be.
[Maria's counsel]: And deaf, and nonexistent.
THE COURT: And that's in contempt.
[Maria's counsel]: I watched you all morning, Judge, it's very clear what's going on in this county, very clear why Mrs. Donihoo —
THE COURT: I'm not listening to any more, because I'm not going to get involved with any more of it. That's it. You are through.
[Maria's counsel]: I still need to make a bill.
THE COURT: You're through. You can quit —
[Maria's counsel]: So you're refusing to let us make an appellate bill, and you've told the court reporter to quit, and the Judge is exiting the courtroom and that's justice in Hamilton County.
The record shows that, before this exchange, the trial court had allowed Maria's counsel to fully cross-examine one of the executrixes' attorneys. Maria's counsel had also been cross-examining Maria for 12 pages in the record when the exchange occurred. In addition, prior to this time, the trial court had placed no restrictions or limitations on counsel's ability to make her bill of exceptions.
The record further reveals that, during the hearing, Maria's counsel had made additional disrespectful remarks to the trial court judge. She told the judge that he was not "paying attention" and had not "looked at the case law." Maria's counsel remarked that the judge was "sustaining any objection" that the executrixes' counsel made.
Government Code section 21.001(b) provides, "A court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done." TEX. GOV'T CODE ANN. § 21.001(b) (Vernon 2004). Courts possess inherent power to discipline an attorney's behavior. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 732 (Tex. 1997) (order on reh'g). "'Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence.'" Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132 (1991)).
Here, the record shows that the trial court had been patient and tolerant with Maria's counsel. The court gave her ample opportunity to make a record. The court warned counsel to cease her disrespectful behavior, or face contempt. Counsel did not heed the warning.
As the San Antonio court of appeals has noted, "Zealous representation does not and cannot include degrading the court in the hopes of gaining a perceived advantage." Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.-San Antonio 1997, writ denied). Similarly, we have explained that "lawyers have the responsibility to conduct themselves with respect for the tribunal and the legal system" and "not engage in behavior likely to invoke proper admonishment from the court." Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.-Houston 1994, writ denied). In this case, Maria's counsel engaged in disrespectful behavior that degraded the proceedings and denigrated the court. She persisted with this behavior, despite the trial court's admonishment. Maria cannot now benefit on appeal from the transgressions of her chosen counsel in the lower court. Nor should the trial court be held to have abused its discretion for preserving the integrity of the proceedings, as it is obligated to do. See In re Maloney, 949 S.W.2d 385, 388 (Tex. App.-San Antonio 1997, no writ) (explaining that judges have obligation to act to maintain the respect due a court and the legal system when litigants or attorneys engage in judicial denigration).
We hold that Maria has not shown that the trial court abused its discretion with respect to her motion for new trial. We overrule Maria's first issue.
Sufficiency of Evidence
In her second issue, Maria contends, "There was no evidence or insufficient evidence to support Final Judgment entered on December 5, 2007."
In this issue, Maria globally attacks nearly every aspect of the judgment from recitals to specific decretal provisions. To the extent that Maria has made these same sufficiency attacks under later, more specific issues, we address them infra.
A. General Recitals
Maria begins by attacking the judgment's recitals. Recitals contained in the judgment are presumed true unless there is a conflict between the judgment and record. Parks v. Developers Sur. and Indem. Co., No. 05-08-00910-CV, 2010 WL 11312 at *3 (Tex. App.-Dallas Jan. 5, 2010, no pet. h.) (citing MJR Fin., Inc. v. Marshall, 840 S.W.2d 5, 9 (Tex. App.-Dallas 1992, no writ)). Maria contends, "There is no evidence to support the finding that [Maria] appeared without counsel and announced ready for trial."
Here, the record shows that Maria appeared at trial without counsel. The record further shows that the trial court had given Maria two prior continuances to retain counsel, and she had failed to do so. As discussed in more detail infra, the trial court did not err in proceeding with trial under the circumstances.
Maria also complains of the recital that the court "considered . . . all arguments of both counsel and individual parties." Although the record reflects that Maria was unrepresented at trial, there is nothing in the record to show that this recital is untrue.
B. Promissory Note
Maria also assails the portions of the judgment that address the promissory note. Maria first complains of the recital that the trial court had "previously determined by its Order in this cause signed March 14, 2007, that the [promissory note] had been lost; and the Court designated a substitute-original note."
The record shows that Maria represented to the trial court, at a pre-trial hearing, that she had possession of the promissory note. One month after this representation, Maria told the court in an affidavit that she was unable to locate the note. One of the executrixes, Virginia Lewis, testified at trial that she had searched for the promissory note and could not locate it. Thus, the record supports the judgment's recital that the promissory note is "lost."
Maria also challenges the legal and factual sufficiency of the evidence to support the trial court's declaration, in the decretal portion of the judgment, that the promissory note, including "payments made thereon," was an asset owned by Donihoo at the time of his death. Maria further challenges the portion of the judgment ordering that the promissory note and "subsequent payments thereon pass under the 'Residuary Bequest' provision" of Donihoo's will.
In their counter-claim, the executrixes alleged that the promissory note was Donihoo's "sole and separate property." Throughout the litigation, Maria claimed that Donihoo had gifted the promissory note to her before his death. At trial, the executrixes presented evidence to support their claim that the promissory note was Donihoo's separate property, which passed under the residuary clause of his will. Maria made no attempt to cross-examine, rebut, or object to the executrixes' evidence at trial. Nor did she offer any evidence regarding the promissory note or Donihoo's alleged inter vivos gift of the note to her.
When deciding a legal-sufficiency challenge raised by a defendant to a claim, we determine whether there is evidence that would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To make this determination, we (1) credit all favorable evidence that reasonable jurors could believe; (2) disregard all contrary evidence, except that which they could not ignore; (3) view the evidence in the light most favorable to the verdict; and (4) indulge every reasonable inference that would support the verdict. Id. at 822, 827. But, we may not disregard evidence that allows only one inference. Id. at 822.
When conducting a factual-sufficiency review, we consider all the evidence in the record, both supporting and conflicting, and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Plas-Tex Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In an appeal from a bench trial, we do not invade the fact-finding role of the trial court, which alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex. App.-Houston 1997, pet. denied).
It is undisputed that the promissory note evidenced approximately $1.6 million owed to Donihoo by the buyer of 80 acres of real property that Donihoo had sold. At trial, the executrixes' testimony indicated that Donihoo had owned the 80 acres for many years before his common-law marriage to Maria. The executrixes' testimony indicated that Donihoo had purchased the land when he was 18 or 19 years old and that he was 78 years old when he died. It is undisputed that Maria and Donihoo had been married for approximately 28 years when he died. The testimony also indicated that Donihoo had been married and divorced before he entered into the common-law marriage with Maria. Such evidence supported a finding that the promissory note was Donihoo's separate property at the time of his death.
The executrixes also offered Donihoo's will into evidence at trial. The will does not mention the $1.6 million promissory note specifically or promissory notes generally. Accordingly, the trial court properly concluded that the $1.6 million promissory note passed under the will's residuary clause, as asserted by the executrixes.
Applying the appropriate standards of review, we hold that the evidence is legally and factually sufficient to support the trial court's declarations in the judgment that the promissory note, including "payments made thereon," was an asset owned by Donihoo at the time of his death and that the promissory note and "subsequent payments thereon pass under the 'Residuary Bequest' provision" of Donihoo's will.
C. Maria's Claims
Maria also challenges the legal and factual sufficiency of the trial court's ruling in the judgment that her "common law conversion claim and . . . breach of fiduciary duty claim . . . are not supported by any evidence presented in this cause."
When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242.
As mentioned, Maria offered no evidence or argument at trial to prove her claims. Maria points to evidence showing that the executrixes took funds from accounts specifically given to Maria in the will and used these funds to pay the estates debts and taxes. She claims this supports her conversion and breach of fiduciary duty claims. We disagree that such evidence necessarily, without more, supports her claims. This is particularly true when viewed in conjunction with Donihoo's will, which provided that assets from the will's specific bequests could be used to pay the estate's debts when there were no residuary assets.
Applying the appropriate standards of review, we hold that Maria did not meet her appellate burden with respect to her legal and factual sufficiency challenges to the trial court's ruling that her conversion and breach of fiduciary duty claims are without evidentiary support.
Underpinning many of Maria's appellate arguments is her assertion that the executrixes' counsel had a conflict of interest with regard to their representation of the executrixes in this case because their firm had drafted Donihoo's will. Marian ever made this assertion until her motion for new trial; thus, such complaint is waived. See TEX. R. APP. P 33.1(a); Drum v. Calhoun, 299 S.W.3d 360, 371 (Tex.App.-Dallas 2009, pet. denied). Maria also buttresses much of her appellate argument with the allegation that the executrixes, their counsel, and the trial court judge colluded to defraud Maria of assets of the estate to which she claims she was entitled. Again, Maria did not raise this contention until her motion for new trial. See TEX. R. APP. P 33.1(a). We further note that the record is devoid of any objective evidence of such collusion or conspiracy. Lastly, we warn Maria and her counsel that it is ill-advised and improper to make adhominem attacks against a trial judge in this Court. See Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.-San Antonio1997, writ denied). Although parties are "granted great latitude in presenting arguments in an appellate court," when they "speak disrespectfully of the trial court, they 'exceed their rights and evidence a want of proper respect for the court. . . .'" Id. at 840-41 (quoting Mossop v. Zapp, 179 S.W. 685 (Tex. Civ.-Galveston1915, no writ)).
We overrule Maria's second issue.
Withdrawal of Counsel
In her third issue, Maria contends, "The granting of [her] counsel's motion to withdraw without a hearing violated [her] constitutional rights."
The record reflects that Maria's counsel filed a motion to withdraw on June 1, 2007. Maria's counsel represented that "[g]ood cause exists for withdrawal as counsel . . . [is] unable to effectively communicate with Maria Donihoo so as to be able to adequately represent her. Furthermore, Plaintiff [Maria] is in breach of her employment contract with Movants." Maria's counsel represented that "withdrawal is not sought for delay, but that [sic] Plaintiff may hire counsel with whom she is willing and able to cooperate and compensate." The attorneys represented that Maria had been notified of the motion and of her right to object to the motion. The attorneys further represented that "[t]here are no pending settings or deadlines in this case."
On June 22, 2007, Maria's counsel sent a letter to the trial court requesting the trial court to grant their motion to withdraw without conducting a hearing. In the letter, counsel represented that Maria had "expressed no objection to our withdrawal." Counsel attached copies of receipts and notifications that had been provided to Maria regarding the motion to withdraw.
The trial court granted counsel's motion to withdraw on June 27, 2007, without conducting a hearing.
On appeal, Maria asserts that her constitutional right to be represented by effective counsel was violated by the trial court, when it granted the motion to withdraw. She contends that the trial court failed to ensure that she would be represented by effective counsel after it granted the motion.
We recognize that the constitutional right to effective assistance of counsel has been extended to certain civil proceedings, such as termination of parental rights cases, see In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003), and involuntary civil commitment proceedings, see In re Protection of H.W., 85 S.W.3d 348, 355-56 (Tex. App.-Tyler 2002, no pet.). We have found no Texas case law, however, indicating that a plaintiff has a constitutional right to effective assistance of counsel in a contested probate matter. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.-Houston 2003, no pet.) ("[I]t is well established that the doctrine of ineffective assistance of counsel does not extend to civil cases.").
Moreover, as pointed out by the executrixes, the record shows that Maria knew how to retain counsel. The record shows that Maria was represented by at least four different law firms during the course of the probate proceedings. The record also shows that Maria had time to retain counsel. And she has never claimed that she did not have the financial means to retain counsel. The case was not tried to the bench until more than five months after the court signed the order of withdrawal.
In addition, Maria did not object in the trial court to the her counsel's motion to withdraw or to the trial's order granting the withdrawal. Because she failed to raise the complaints regarding her counsel's withdrawal in the trial court, Maria has waived these complaints for appeal. See TEX. R. APP. P. 33.1(a); see also Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166 (Tex. App.-Texarkana 2005, no pet.) (holding that appellant waived right to complain about attorney's withdrawal and attendant violation of his due process rights when he did not raise complaint in trial court).
We overrule Maria's third issue.
Setting of Case for Trial
In her fourth issue, Maria contends, "The setting of the case for trial on the merits immediately after allowing [Maria's] counsel to withdraw violated [her] constitutional rights." Maria asserts that her due process rights were violated because the executrixes set the case for trial "immediately" following her counsel's withdrawal and before discovery was complete.
Maria's due-process argument is not supported by the record. The trial court granted two continuances of trial to allow Maria to obtain counsel. Maria represented to the trial court that she planned to obtain counsel. The executrixes did not object to the continuances on either occasion. Maria had five months to retain counsel before trial, and she failed to do so.
In addition, Maria did not object in the trial court that her due process rights were violated. Thus, she has waived this complaint for appeal. See TEX. R. APP. P. 33.1(a); Rittenhouse, 161 S.W.3d at 166; see also Graves v. Alders, 132 S.W.3d 12, 16 (Tex. App.-Beaumont 2004, pet. denied) (holding appellant waived claim that trial court violated due process rights by denying continuance to complete discovery).
We overrule Maria's fourth issue.
Removal of Independent Co-Executrixes
In her fifth issue, Maria asserts, "There was no evidence or insufficient evidence to support the trial court's denial of the Application to Remove Independent Co-Executrixes and order the turn over of the original promissory note to the executrixes."
Probate Code section 149C provides that an independent executor may be removed by the court when any of six statutory grounds for removal have been met. See TEX. PROB. CODE ANN. § 149C(a) (Vernon Supp. 2009). Maria had the burden of establishing a violation of section 149C in the trial court. Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009). On appeal, Maria must demonstrate that the trial court abused its discretion when it denied her request for removal. See id. ("Once a violation of one of the six grounds [in section 149C] has been proven, the trial court has discretion to decide whether the violation warrants removal.").
The grounds for removal listed in section 149C are as follows:
(1) the independent executor fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to the independent executor's knowledge;
(2) sufficient grounds appear to support belief that the independent execut or has misapplied or embezzled, or that the independent executor is about to misapply or embezzle, all or any part of the property committed to the independent executor's care;
(3) the independent executor fails to make an accounting which is required bylaw to be made;
(4) the independent executor fails to timely file the affidavit or certificate required by Section 128A of this code;
(5) the independent executor is proved to have been guilty of gross misconductor gross mismanagement in the performance of the independent executor's duties; or
(6) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor's fiduciary duties.
TEX. PROB. CODE ANN. § 149C(a) (Vernon Supp. 2009)
Maria contends that the executrixes should have been removed because they had a conflict of interest. Maria points to the executrixes' claim that the promissory note was part of the residuary estate. Maria further points out that the executrixes were beneficiaries of the residuary estate. She posits this created a conflict of interest between "their personal financial interests and their fiduciary duty to the Estate."
A review of the record reveals that Maria never sought removal of the executrixes on this ground. Thus, it cannot serve to establish that the trial court abused its discretion for failing to remove the executrixes. See TEX. R. APP. P. 33.1(a).
The Texas supreme court in Kappus v. Kappus addressed whether an executor's alleged "conflict of interest" created by co-ownership of an estate's asset constituted a basis to remove an independent executor. 284 S.W.3d 831, 835-38 (Tex. 2009). The Kappus court stressed that an executor's claim to an estate asset is not an automatic ground for removal. See id.
In the trial court, Maria asserted that the executrixes should be removed because they had "embezzled and misapplied all or part of the estate." See TEX. PROB. CODE ANN. § 149C(a)(2). Maria argued that the executrixes had wrongfully transferred funds from accounts that had been specifically bequeathed to her in the will and used them to pay the estate's debts. Maria pointed out that, pursuant to the will, the executrixes could not use funds from any specific bequests to pay the estate's debts until "the residue of the estate" had been "totally exhausted." Maria also pointed out that the will provided that the estate's debts should first be paid from any account designated as a "tax account."
At the hearing on the motion, the executrixes did not dispute the reading of the will, but countered that they did not have access to any residue of the estate, nor could they locate any "tax account." For this reason, they asserted that they were permitted, under the will's provisions, to transfer funds from specific bequests made in the will to pay the estate's debts. The executrixes argued that the only residuary asset was the $1.6 million promissory note of which they did not have possession. The executrixes averred that they did not have access to the promissory note because it was in the possession of Maria. The executrixes' counsel told the trial court that the executrixes had made many attempts to obtain the promissory note from Maria to no avail. Thus, whether the promissory note was a residuary asset was a contested issue.
Maria testified at the hearing that she believed that she had possession of the promissory note and agreed to retrieve it. It was clear from the counsel's arguments at the hearing that Maria also claimed an ownership interest in the promissory note. The executrixes' attorney testified that the executrixes did not have the promissory note and were unable to locate any "tax account." He testified that funds were transferred from accounts specifically bequeathed to Maria because the estate's taxes had come due and needed to be paid. He also anticipated that other taxes would need to be paid in the future, as well as other debts of the estate.
Given the evidence and arguments of counsel at the hearing, Maria has not shown that the trial court abused its discretion when it denied her motion to remove the executrixes.
We overrule Maria's fifth issue.
Inventory, Appraisement, and List of Claims, and the Accounting
In her sixth issue, Maria asserts, "There was no evidence or insufficient evidence to support the trial court's approval of the Inventory, Appraisement, and List of Claims, and [the] 'accounting.'"
As previously described, Donihoo's will was admitted to probate in the constitutional county court of Hamilton County. Letters testamentary were issued to the executrixes and the county signed an order approving the executrixes' Inventory, Appraisement, and List of Claims ("the inventory"). Maria then filed her "Motion Objecting to Inventory." Maria specifically objected to the county court's approval of the inventory on the ground that it characterized the $1.6 million promissory note as an asset of Donihoo's estate. Maria asserted that the note was not an asset of the estate and should not be included in the inventory. Maria alleged that the promissory note was her "separate personal property." For this reason, Maria requested that the court disapprove the inventory.
As discussed, Maria also filed a motion to remove the executrixes. In the motion, Maria alleged that the executrixes had "embezzled and misapplied all or part of the estate." Maria specifically cited the executrixes' accounting as demonstrating that the executrixes had wrongfully taken funds bequeathed to Maria.
Following the filing of these motions, the county court transferred "the contested portion of the [probate] proceedings" to the Hamilton County District Court. There, Maria asserted additional claims against the executrixes, including claims for conversion and breach of fiduciary duty. These claims were based on the executrixes' transfer of funds from bank and brokerage accounts, which had been specifically bequeathed to Maria. The executrixes had used the transferred funds to pay the taxes and debts of the estate.
The executrixes filed a counter-claim against Maria in which they alleged that the promissory note was "the sole and separate property" of Donihoo and the property of his estate. Until and through the trial of this matter, the parties disagreed on the inventory's characterization of the promissory note as Donihoo's separate property. At trial, the executrixes introduced the inventory into evidence through their attorney, Tom White. It was the same inventory that the county court had previously approved and was contained in the trial court's files. White testified to the validity of the information contained in the inventory by stating that it was the same information that he had used to prepare the estate's federal income tax form.
Maria argues that the district court lacked jurisdiction to approve the executrixes' inventory and their accounting. We disagree. Pursuant to former Texas Probate Code section 5(b), which is applicable to this case, the constitutional county court in this case was permitted to transfer a "contested probate matter" to the district court. See Act of May 1, 2001, 77th Leg., R.S., ch. 63 § 1, § . 5, 2001 Tex. Gen. Laws 104,104-05, repealed by Act of May 26, 2009, 81st Leg., R.S., ch. 1351, § 12(b), 2009Tex. Gen. Laws 4273, 4279. Contested probate matters include all matters in a probate proceeding where the pleadings on file demonstrate that the parties to the suit have adopted adversarial positions. Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex.Civ. App.-Houston 1980, no writ). In this case, Maria expressly challenged the approval of the inventory. She also challenged the transfer of the funds from the financial accounts bequeathed to her and the use of those funds to pay the estate's debts and taxes, as shown in the accounting. Thus, the inventory and the accounting were matters on which Maria and the executrixes had taken adversarial positions. See id. We conclude that these were "contested probate matters" as contemplated by former Texas Probate Code section 5(b).
The trial court resolved the contested issue, on which Maria sought to have the inventory disapproved, against Maria. Specifically, the trial court concluded that the inventory's characterization of the promissory note as Donihoo's separate property was correct. As discussed, the executrixes offered ample evidence to support this conclusion. Thus, the trial court properly approved the inventory.
Through White's testimony, the executrixes also introduced into evidence "the accounting prepared by [attorney] Thomas E. White, covering period from the time that [the executrixes] qualified on May 9, 2006, through November 16, 2006." White testified regarding the figures reflected in the accounting that he had prepared. He explained that the estate's taxes were due immediately following Donihoo's death and needed to be paid. White explained that, because of the outstanding debts of the estate and a lack of residuary assets, the executrixes found it necessary to transfer funds from accounts that had been bequeathed to Maria to an estate account to the estate's taxes and debts. Maria did not cross-examine or rebut the executrixes' evidence related to the accounting. We conclude that the trial court properly approved the accounting.
We overrule Maria's sixth issue.
Attorney's Fees
In her seventh issue, Maria contends, "There was no segregation of legal fees and there was no evidence or insufficient evidence to support an award of attorney's fees."
In their counter-claim, the executrixes cited Civil Practice and Remedies Code section 37.009, the attorney's fee provision of the Declaratory Judgment Act, as a basis to recover attorney's fees. The trial court's judgement awards the executrixes $30,000 in attorney's fees "for legal services rendered in connection with the representing [sic] the Estate in connection with the declaratory judgment proceedings in this cause." The judgment includes an additional award of appellate attorney's fees.
A. Segregation of Attorney's Fees
Maria challenges the attorney's fees award by first asserting that "Defendants failed to segregate the amount of attorney's fees incurred as a result of their alleged claim for declaratory relief from their other claims and defenses." The record shows that, although she mentioned it in her motion for new trial, Maria did not raise her segregation objection before the trial court rendered judgment. Accordingly, Maria has waived this objection on appeal. See TEX. R. APP. P. 33.1(a)(1) (providing that a party must make "timely request, objection, or motion" to present complaint for appellate review); Red Rock Properties 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037 at *7 (Tex. App.-Houston June 25, 2009, no pet.) (mem. op.) (holding that raising segregation issue for first time in motion for new trial does not preserve objection for appeal); Kleas v. BMC W. Corp., No. 03-05-00190-CV, 2008 WL 5264883, at *5-6 (Tex. App.-Austin Dec. 19, 2008, pet. denied) (mem. op.) (same); see also Green Intern., Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) ("If no one objects to the fact that the attorney's fees are not segregated as to specific claims, then the objection is waived.").
B. Attorney's Fees Supported by Pleadings
Maria also asserts that the attorney's fees award was not properly supported by the executrixes' pleadings. We disagree. The executrixes specifically pleaded and cited section 37.009 of the Declaratory Judgment Act as a basis for their attorney's fees request. See TEX. CIV. PRAC. REM. CODE ANN. § 37.009 (Vernon 2008) ("In any proceeding under this chapter, the court may award costs and reasonable and necessary attorneys' fees as are equitable and just.").
Even if unpleaded, the record reflects that the attorney's fees issue was tried by consent. Unpleaded claims or defenses that are tried by express or implied consent of the parties are treated as if they had been raised by the pleadings. See Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). The party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal. Id.
To determine whether an issue was tried by consent, we examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 780 (Tex. App.-Houston 2009, no pet.). A party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and the other party failed to make an appropriate complaint. Id.
At trial, the executrixes made a clear request for attorney's fees. To support their request, the executrixes offered evidence in the form of affidavits and testimony provided by their attorneys. Maria made no objection to the executrixes' request for attorney's fees or to the evidence supporting the request. Accordingly, we conclude that the issue of attorney's fees was tried by consent, even if unpleaded. See Estopar Holdings, Inc. v. Advanced Metallurgical Tech., Inc., 876 S.W.2d 205, 210 (Tex. App.-Fort Worth 1994, no writ) (concluding attorney's fees award in declaratory judgment action tried by consent); see also TEX. R. CIV. P. 67.
C. Evidence Supporting Attorney's Fees
In a declaratory judgment action, "the court may award costs and reasonable and necessary attorneys' fees as are equitable and just." TEX. CIV. PRAC. REM. CODE ANN. § 37.009. Maria further asserts that the attorney's fees award lacked sufficient evidentiary support. She also contends that the award was not "reasonable and necessary" or "equitable and just."
The grant or denial of attorney's fees in a declaratory judgment action lies within the discretion of the trial court, and its judgment will not be reversed on appeal absent a clear showing that it abused its discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). When reviewing a trial court's decision for abuse of discretion, we must view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Phillips Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.-Houston 1996, no writ.). An attorney's fees award must be reasonable and necessary, which are questions of fact, as well as equitable and just, which are questions of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Here, much of Maria's argument that the award was neither reasonable and necessary nor equitable and just centers on her assertions that the attorney's fees were not segregated and that the executrixes did not properly plead an attorney's fees request. Maria also assails the attorney's fees award on the ground that the executrixes had breached their fiduciary duty. As discussed supra, these contentions are either not preserved or not supported in the record; thus, they cannot serve to show that the attorney's fees award was not reasonable and necessary or equitable and just.
Maria also asserts that there is "no evidence or insufficient evidence" to support the award. At trial, three attorneys representing the executrixes provided testimony to support the attorney's fees award. Each attorney also signed an affidavit supporting the requested fees.
In their trial and affidavit testimony, the attorneys detailed the specific legal services each had performed for the executrixes and the fees that he had charged for the services. Each attorney testified that his fees were "reasonable and necessary." The total sum of fees detailed in the attorneys' testimony exceeded the amount of fees awarded by the trial court against Maria.
We conclude that Maria has not shown that the trial court abused its discretion when it awarded attorney's fees to the executrixes. See id. We overrule Maria's seventh issue.
Indispensable Party
In her eighth issue, Maria asserts, "Billy Donihoo [the decedent's brother] was an indispensable party, who was not joined." Regardless of the propriety of this claim, Maria failed to preserve this issue for appeal by raising it in a timely objection in the trial court. See Jones v. LaFargue, 758 S.W.2d 320, 324 (Tex. App.-Houston 1988, writ denied); Jackson, 610 S.W.2d at 522; see also TEX. R. APP. P. 33.1(a).
We overrule Maria's eighth issue.
Conclusion
We affirm the judgment of the trial court.