Opinion
No. 05-03-00697-CV.
Opinion Filed March 17, 2004.
On Appeal from the Probate Court No. 3, Dallas County, Texas, Trial Court Cause No. 01-3589-P3.
Reverse and Render.
Before Justices JAMES, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Archie Greer, Jr., Independent Executor of the Estate of Armetia R. Pinkston, appeals the portion of the trial court's judgment ordering that attorneys' fees and expert witness fees incurred by Carla Marie Jenkins, Crystal Pinkston, Paul Nance, and Pebelok Pinkston be paid by Armetia Pinkston's estate. In a single issue, appellant contends the trial court erred by concluding section 243 of the probate code authorized appellees to be awarded such fees. We sustain appellant's issue and reverse that portion of the trial court's order awarding appellees fees from the estate. After Pinkston died, Kasinda Benson and Kwesi Benson applied to probate Pinkston's 2001 will. Appellees contested the will, alleging Pinkston lacked testamentary capacity when she executed the will, the will was a forgery, or if not a forgery, it was the result of fraud and duress. Appellees did not seek to probate another will. Rather, they sought to establish that Pinkston died intestate. Appellees requested reasonable attorneys' fees "pursuant to the Texas Probate Code."
For convenience, we will refer to Armetia R. Pinkston as "Pinkston" and Carla Marie Jenkins, Crystal Pinkston, Paul Nance and Pebelok Pinkston collectively as "appellees."
Following a bench trial, the trial court admitted the 2001 will to probate. The trial court awarded the Bensons, as proponents of the will, and appellees, as contestants of the will, attorneys' fees and expert fees to be paid from the estate. In its findings of fact and conclusions of law, the trial court indicated that it awarded the fees to appellees "pursuant to Texas Probate Code section 243 and for no other reason." This appeal followed.
Under Texas law, a party who seeks only to contest a will may not obtain statutory reimbursement for attorney's fees under section 243. See Tex. Prob. Code Ann. § 243 (Vernon 2003); Drake v. Muse, Currie Kohen, 532 S.W.2d 369, 374-75 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.); Zapalac v. Cain, 39 S.W.3d 414, 419 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Appellees sought only to contest the 2001 will; they did not attempt to admit a will into probate. Thus, they may not obtain reimbursement for attorneys' and expert fees pursuant to section 243 of the probate code and the trial court erred by concluding otherwise. Drake, 532 S.W.2d at 374-75.
Although appellees concede they are not entitled to fees pursuant to section 243, they argue they are entitled to the fees pursuant to an agreement and because their contest of the will was beneficial to the estate. Appellees did not, however, plead either of these grounds as a basis for the award of attorneys' fees. Nor did appellees otherwise present these theories to the trial court. Thus, appellees cannot now rely on these theories to support the award of attorneys' fees. See Rodriguez v. Ysleta Ind. Sch. Dist., 68 S.W.3d 699, 700 (Tex. App.-El Paso 2001, pet. denied) (absent a mandatory statute or contract providing for attorneys' fees, a party must specifically plead for fees). See also Vincent v. Bank of Am., 109 S.W.3d 856, 863 (Tex. App.-Dallas 2003, pet. denied) (party may not obtain a judgment based on an unpled theory).
Moreover, the record does not contain evidence of any agreement concerning attorney's fees to be paid from the estate. The evidence relied on by appellees, i.e., testimony by Judge Ashmore, shows that, in his opinion, the only way the attorneys in the case would be paid was if the fees were paid by the estate. That is not evidence of an agreement between the parties regarding payment of the fees. Nor does the record support appellees' contention that they are entitled to the fees because their contest of the will was beneficial to the estate. Although appellees were successful in having Kasinda Benson removed as executor of the estate, they fail to explain how this benefitted the estate or cite to evidence in support of this contention. It is not the duty of this Court to search the record for evidence in support of appellees' argument. See Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 839 (Tex. App.-Dallas 2000, no pet.). Further, the focus of appellees' suit was contesting the will. Thus, it appears the majority of appellees' attorneys' and expert fees were incurred to achieve an outcome favorable to appellees, not the estate. See Hope v. Baumgartner, 111 S.W.3d 775, 778 (Tex. App.-Fort Worth 2003, no pet.) (challenge of a valid will was burden to the estate, not beneficial to the estate). Under these circumstances, we cannot conclude appellees were entitled to have their fees paid by the estate. We sustain appellant's sole issue.
Appellees did not, at trial or on appeal, attempt to segregate any fees incurred with respect to removal of Kasinda Benson as executor from any fees incurred challenging the 2001 will.
Accordingly, we reverse the portion of the trial court's judgment awarding attorneys' and expert fees incurred by Carla Marie Jenkins, Crystal Pinkston, Paul Nance, and Pebelok Pinkston to be paid by Pinkston's estate. In all other respects, we affirm the trial court's judgment.