Sheila Owens-Collins v. Dana Drexler, Temporary Guardian the Person and Estate of Hattie B. Owens, Incapacitated, Gus Tamborello, Substituted Attorney for Dana Drexler, Temporary Guardian the Person and Estate of Hattie B. Owens, Incapacitated, Hattie Shannon, Attorney Ad Litem of the Estate of Hattie B. Owens, Incapacitated, Melbourne Berlinger, Guardian Ad Litem of the Estate of Hattie B. Owens, Incapacitated, and Geoffrey Sansom, Attorney Ad Litem of the Estate of Hattie B. Owens, Incapacitated ( 2020 )

Opinion issued December 3, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00520-CV
———————————
SHEILA OWENS-COLLINS, Appellant
V.
DANA DREXLER, TEMPORARY GUARDIAN OF THE PERSON AND
ESTATE OF HATTIE B. OWENS, INCAPACITATED, GUS
TAMBORELLO, SUBSTITUTED ATTORNEY FOR DANA DREXLER,
TEMPORARY GUARDIAN OF THE PERSON AND ESTATE OF HATTIE
B. OWENS, INCAPACITATED, HATTIE SHANNON, ATTORNEY AD
LITEM OF THE ESTATE OF HATTIE B. OWENS, INCAPACITATED,
MELBOURNE BERLINGER, GUARDIAN AD LITEM OF THE ESTATE
OF HATTIE B. OWENS, INCAPACITATED, AND GEOFFREY SANSOM,
ATTORNEY AD LITEM OF THE ESTATE OF HATTIE B. OWENS,
INCAPACITATED, Appellees
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Case No. 461,718
MEMORANDUM OPINION
This is an appeal from a guardianship proceeding. The proposed ward—Hattie
Owens—died during the pendency of the proceeding. The probate court awarded
fees and expenses to an attorney ad litem, guardian ad litem, and temporary guardian.
Owens’s daughter, Sheila Owens-Collins, appeals challenging these awards as well
as the probate court’s order approving the temporary guardian’s final account.
We affirm the probate court’s judgment.
BACKGROUND
Owens was 89 years of age when the events immediately underlying this
guardianship proceeding unfolded. For a number of years, Owens had resided alone
in Houston. During this time, Owens’s daughter, Collins, managed her financial and
medical affairs as her agent under a statutory durable power of attorney and medical
power of attorney that Owens executed in 2011. After Hurricane Harvey damaged
Owens’s home in late August 2017, Owens temporarily moved in with her
granddaughter, Aisha Ross. Owens later moved into an assisted living center for the
elderly staffed by caregivers around the clock, which is where she resided during the
pendency of this proceeding.
Ross and Collins became embroiled in disputes over the management of
Owens’s finances and medical care. Ross accused Collins of misappropriating assets
from Owens and neglecting her medical care. In the course of these disputes, Owens
2
executed new, conflicting powers of attorney. In September 2017, Owens executed
a durable power of attorney and a medical power of attorney, which named both
Collins and Ross as agents. Two days later, Owens executed another statutory
durable power of attorney and medical power of attorney that named Collins as her
sole agent. Collins alleged that Ross had manipulated Owens into signing the first
set of powers of attorney that Owens executed in 2017.
Ross applied for the appointment of a permanent guardian of Owens’s person
and estate in October 2017. Ross alleged that Owens had dementia and was totally
incapacitated. Citing the conflicting powers of attorney, Ross also applied for the
appointment of a temporary guardian. Collins opposed the appointment of a
temporary or permanent guardian.
At various points in the proceeding, several other interested relatives appeared
through counsel or otherwise. These include:
• Owens’s two sons, Emiel and Melvin Owens;
• Owens’s other daughter, Angela Owens-Sapp;
• Owens’s grandson, Roy Collins IV; and
• Owens’s nephew, Donald Owens.
For a time, Owens was also represented by her own counsel.
The probate court appointed Hattie Shannon as attorney ad litem in October
2017. It also appointed an investigator to meet Owens, consult her physicians, and
3
review records as to her health and finances. In December 2017, the investigator
filed a report stating that Owens opposed the appointment of a guardian. But the
investigator’s report also noted that Adult Protective Services found that Collins had
financially exploited Owens. Though the investigator reported that Owens was alert
and appeared healthy, the investigator recommended that Owens undergo an
independent medical examination to ascertain her capacity.
Previous exams had yielded conflicting results. After one exam performed in
November 2017, Dr. Mitchell Alan Young concluded that Owens was not
incapacitated. Based on another exam performed in November 2017, Dr. Kamayani
Khare concluded that Owens was totally incapacitated. In an addendum, Dr. Khare
noted that on the day of the exam she had an unexpected telephone conversation
with Collins in which Collins acknowledged that Owens had mild dementia but
nonetheless believed Owens to be competent and wanted to verify that Khare
thought so too. Khare disagreed with Collins and told Collins so.
Collins opposed subjecting Owens to an independent medical examination.
After a December 2017 hearing on the issue, the probate court ordered Owens to
undergo an exam. The probate court did not make specific findings of fact, but its
ruling appears to have been based on three undisputed facts: (1) that Adult Protective
Services found Collins had financially exploited Owens; (2) that Owens did not
know about significant payments that Collins had made from Owens’s bank account;
4
and (3) that medical evidence indicated Owens possibly had memory problems. At
or after the hearing, the probate court appointed Dana Drexler as temporary guardian
of the person and estate of Owens.
In January 2018, Dr. Ali Abbas Asghar-Ali conducted an independent medical
exam. He concluded that Owens had a history of stroke of mild severity and a major
neurocognitive disorder of moderate severity. He further concluded:
• Owens had deficits in short-term memory, immediate recall, problem-
solving, and ability to grasp abstract aspects of her situation;
• Owens was unable to make complex financial decisions, manage a bank
account, operate an automobile, make decisions as to marriage, administer
her own medications on a daily basis, engage in activities like cooking and
cleaning, or make treatment decisions concerning her own healthcare;
• Owens physical and mental functioning would not improve; and
• it was in Owens’s best interest to take medication for the care and
treatment of dementia but she lacked the capacity required to give
informed consent to the administration of this medication.
Overall, Asghar-Ali concluded that Owens was partially incapacitated—unable to
perform some of the tasks required to care for herself or to manage her property—
within the meaning of the Estates Code. Owens thus required a guardian to manage
her finances, healthcare, and instrumental activities of daily life, like cleaning,
cooking, shopping, and travel. Due to her partial incapacity, Asghar-Ali further
concluded that Owens would not be able to understand and participate in a court
hearing and should not appear at one.
5
Dr. Chris Merkl, a treating physician, performed an additional exam in April
2018. He concluded Owens was totally incapacitated.
Based on the exams made by Drs. Asghar-Ali, Khare, and Merkl, Drexler
moved for appointment of a disinterested third-party as permanent guardian for
Owens in September 2018. By this point, all family members other than Collins
agreed that a disinterested third-party guardian should be appointed for Owens.
Melbourne Berlinger, whom the probate court had appointed as guardian ad litem,
also agreed that a disinterested third-party should be appointed as permanent
guardian during a hearing that same month. Berlinger later formally moved to
appoint a third-party guardian based on Owens’s incapacity and familial discord.
The probate court ordered Collins to make an accounting of her management
of Owens’s finances. In September 2018, Collins filed an accounting. Based on the
accounting, in November 2018, Adult Protective Services withdrew its finding that
she had financially exploited Owens and instead concluded that the agency was
unable to determine if Collins had done so. Drexler, Berlinger, and Shannon made
various objections to Collins’s accounting. Collins, in turn, moved to strike their
objections.
The probate court, however, did not adjudicate this dispute about Collins’s
accounting or rule on the pending guardianship applications before Owens fell ill
6
and passed away. Owens suffered a massive stroke in late October 2018 and died in
early January 2019. After Owens’s death, Drexler filed a final account.
The Estates Code provides for payment of a temporary guardian, guardian ad
litem, and attorney ad litem. Drexler, Berlinger, and Shannon requested payment of
fees and/or expenses in applications they filed in January and February 2019.
Drexler requested $53,468 in fees and expenses. She supported her sworn
application with a 36-page invoice detailing her activities, billing rate, time in
quarter-hour increments, and expenses.
Berlinger requested $13,196.38 in fees and expenses. He supported his sworn
application with a 4-page invoice detailing his activities, billing rate, time in quarter-
hour increments, and expenses.
Shannon requested $15,000 in fees. She supported her sworn application with
a 5-page invoice detailing her activities, billing rate, and time in quarter-hour
increments. Though her total fees came to $27,525, she discounted this amount by
$12,525. She did not include any expenses.
In March 2019, Collins objected to Drexler’s, Berlinger’s, and Shannon’s
payment requests. She submitted the affidavit of R. Dyann McCully, a lawyer
specializing in estate planning and probate law, who opined that Drexler, Berlinger,
and Shannon did not fulfill their duties.
7
Collins also asked the probate court to order Drexler to file an amended final
account addressing certain property belonging to Owens’s estate and to continue
serving as temporary guardian until the probate court could hear separate litigation
that had commenced between family members as to Owens’s will and probate estate.
Collins similarly maintained that Berlinger and Shannon continued to have ongoing
duties to Owens’s estate in the interim.
In April 2019, Drexler filed an amended final account. Later that month, the
probate court held a hearing on the amended account, payment requests, and
associated objections. At the hearing, attorney Gus Tamborello appeared in
Drexler’s stead because she was recovering from cancer-related surgery. The
probate court asked if anyone objected to Drexler’s absence. No one objected.
During the hearing, McCully testified in support of Collins’s opposition to the
temporary guardian’s final account and amended final account. In general, McCully
opined that the accounts were not detailed enough, lacked adequate supporting
documentation, and did not explain the supporting documentation that was included.
She also faulted the temporary guardian’s failure to address income taxes in these
accounts. McCully thus opined that the probate court should not approve them.
But McCully did not perform a forensic accounting of Drexler’s final account
or amended final account. McCully did not have the records necessary to do so and
8
did not request any records. Indeed, she first reviewed the final account and amended
final account the day before the hearing.
McCully also testified in support of Collins’s opposition to the payment
requests. McCully opined that Shannon’s payment request should be denied in its
entirety because Shannon did not fulfill her duty as attorney ad litem to represent
Owens, who opposed imposition of a guardianship. McCully opined that Berlinger
did not fulfill his duty as guardian ad litem to act in Owens’s best interest by failing
to investigate and evaluate whether guardianship was necessary. Had Berlinger done
so, McCully asserted, he would have opposed guardianship. McCully opined that
Drexler did not fulfill her duty as temporary guardian to neutrally maintain the status
quo and manage Owens’s finances and care. According to McCully, Drexler was
obligated to fulfill Owens’s wishes to the extent possible but did not do so. Overall,
McCully opined that neither a temporary nor permanent guardianship was necessary.
McCully’s opinions, however, rested in significant part on the premise that
the sole medical evidence consisted of Dr. Young’s exam concluding Owens had the
capacity to manage her own affairs. McCully was not aware of any contrary medical
evidence, including the exams of Drs. Asghar-Ali, Khare, or Merkl.
McCully further opined that many of the fees and expenses identified in
Shannon’s, Berlinger’s, and Drexler’s invoices were not reasonable and necessary.
Among other things, McCully objected to billing entries that were stated in quarter-
9
hour increments for activities that could not have taken fifteen minutes, should not
have been billed at all as they were not legal in nature or should have been billed at
a lower rate, or were unnecessary or beyond their respective court-appointed roles.
But McCully conceded that her review was limited to documents given to her
by Collins’s counsel. This did not include the documents referenced in the billing
entries that she criticized. Her criticisms of Shannon’s, Berlinger’s, and Drexler’s
activities were based solely on the descriptions they provided in their invoices.
Geoffrey Sansom, whom the probate court appointed as an attorney ad litem
for the limited purpose of evaluating the final account, also testified at the April 2019
hearing. He reviewed all case filings and concluded, after Drexler addressed his
questions, that the probate court should approve the amended final account.
In May 2019, Drexler filed a second amended final account. That month,
Drexler moved to close the guardianship proceeding.
Drexler and Berlinger each also filed a second payment request for fees
incurred since their initial requests. Berlinger requested $4,462.50 in additional fees
and submitted a supporting invoice detailing his activities, rate, and time. Drexler
requested $3,700 in fees incurred by Gus Tamborello. Drexler supported this request
with an affidavit made by Tamborello and Tamborello’s invoice.
10
The probate court awarded all fees and expenses sought by Drexler, Berlinger,
and Shannon. In June 2019, it approved the second amended final account and then
closed the guardianship proceeding.
Collins moved for a new trial on several grounds, including that she had not
received notice of Drexler’s second amended final account, second request for
payment, or motion to close the guardianship proceeding. Collins also argued that
the evidence of fees and expenses was insufficient.
The probate court denied Collin’s new-trial motion.
Collins appeals.
DISCUSSION
Procedural Issues on Appeal
As a preliminary matter, Collins objects to two of the briefs filed.
Collins objects to Berlinger’s appellate brief on the ground that Berlinger did
not timely file it. We previously granted Berlinger two extensions to file his brief.
He sought a third extension, which we have not yet granted or denied, and filed his
brief by the deadline he sought in his third motion for extension—May 1, 2020. His
third motion for extension was premised in part on the disruption caused by Covid-
19. Because we did not set this case for submission until September 3, and Collins
has filed a reply brief responding to Berlinger’s appellate arguments on the merits,
Berlinger’s delay in filing his brief has neither harmed Collins nor impeded our
11
resolution of this appeal. Thus, we grant Berlinger’s third motion for extension,
which makes his brief timely filed, and overrule Collins’s objection to his brief.
Collins also objects to Ross’s brief. Because Ross’s brief does not address
Collins’s specific points of error, we have disregarded it in deciding this appeal.
Substantive Issues on Appeal
Collins challenges the probate court’s orders awarding fees and expenses to
Drexler, Berlinger, and Shannon. She also challenges the probate court’s order
approving Drexler’s second amended final account. Collins does not challenge any
other rulings, including the probate court’s appointment of Drexler as temporary
guardian or its order requiring Owens to undergo an independent medical exam.
Standard of Review for Fee Awards
The parties all agree that fee awards in guardianship proceedings are subject
to review for abuse of discretion. See, e.g., Epstein v. Hutchison, 175 S.W.3d 805,
807 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (fees awards to guardian
generally reviewed for abuse of discretion). A probate court abuses its discretion in
awarding fees if its ruling is arbitrary, unreasonable, made without reference to
guiding legal principles, or unsupported by the evidence. Anderson v. McCormick,
Nos. 01-12-00856-CV & 01-12-00857-CV, 2013 WL 5884931, at *4 (Tex. App.—
Houston [1st Dist.] Oct. 31, 2013, no pet.) (mem. op.). Because a probate court has
no discretion to misinterpret or misapply the law, it also abuses its discretion in
12
awarding fees if its ruling is contrary to the law. See Epstein, 175 S.W.3d at 807. To
the extent our review of the reasonableness and necessity of fees turns on disputed
evidence, we will reverse only if no evidence supports the factfinder’s finding or its
finding is so contrary to the great weight and preponderance of the evidence as to be
manifestly erroneous or unjust. See Celanese Chem. Co. v. Burleson, 821 S.W.2d
257, 260–61 (Tex. App.—Houston [1st Dist.] 1991, no writ) (applying traditional
legal and factual sufficiency standards in dispute as to whether trial court abused
discretion in awarding fees to guardian ad litem).
Attorney Ad Litem’s Fees
Collins contends the probate court erred in awarding fees to Shannon on three
distinct grounds. First, Collins argues that because Shannon did not oppose
guardianship or an independent medical examination consistent with Owens’s
wishes, she failed to fulfill her duties as attorney ad litem, which disentitles her to
fees. Second, Collins argues that Shannon’s fees were excessive. Third, Collins
argues that Shannon did not testify that her fees were reasonable and necessary.
An attorney ad litem “is entitled to reasonable compensation for services
provided in the amount set by the court, to be taxed as costs.” TEX. EST. CODE
§ 1054.007(b). An appointed attorney ad litem has a right to compensation
regardless of the outcome of the proceeding. See In re Guardianship of Glasser, 297
13
S.W.3d 369, 378 (Tex. App.—San Antonio 2009, no pet.) (construing Probate
Code’s predecessor provision on attorney ad litem fees).
Shannon filed an answer in which she generally denied that a guardianship
was necessary and demanded that Ross be required to prove its necessity. At the
December 2017 hearing, Shannon told the court that Owens opposed Ross’s
application to be appointed as Owens’s guardian. Collins argues that Shannon should
have also demanded an evidentiary hearing to oppose the independent medical
examination and objected to the appointment of a temporary guardian for lack of
evidence that one was needed. But at the December 2017 hearing it was undisputed
that Adult Protective Services found that Collins had financially exploited Owens,1
Owens was unaware of significant payments that Collins had made from her bank
account, and Owens might have memory problems. The court-appointed investigator
had recommended an independent medical exam.
Evidence later emerged that Owens lacked capacity. Three of the four doctors
who examined Owens concluded she was incapacitated in whole or part within the
meaning of the Estates Code. Collins’s expert, McCully, was unaware of these
doctors’ conclusions when she opined that Shannon failed to do her duty. McCully
1
Adult Protective Services later withdrew this finding, but Collins does not
suggest Shannon reasonably could have ignored or disregarded this finding at the
time of the December 2017 hearing. Notably, whether Collins had financially
exploited Owens remained unadjudicated by the probate court when Owens died.
14
therefore did not address whether Shannon could or should have continued to oppose
guardianship under these circumstances. See EST. § 1054.001 (attorney ad litem
represents proposed ward’s interests); TEX. R. DISC. PROF’L CONDUCT R. 1.02(g)
(requiring lawyer to take reasonable action to secure appointment of guardian for, or
seek other protective orders as to, client whenever lawyer reasonably believes client
is incompetent or that these actions should be taken to protect client).
On this record, the probate court could have reasonably found that Shannon
did not fail to fulfill her duty as attorney ad litem. The probate court therefore did
not abuse its discretion by implicitly rejecting Collins’s contrary argument.
As to the excessiveness of Shannon’s fees, Collins complains on appeal that
Shannon billed for a minimum of 15 minutes’ time regardless how much time a task
actually took her to complete, so that she effectively billed $87.50 for every e-mail
she reviewed. Collins makes no other specific complaints on appeal.
Collins does not identify specific time entries in Shannon’s invoice or explain
why these particular entries are unreasonable. She instead refers us to a single page
of McCully’s testimony at the April 2019 hearing. The probate court heard
McCully’s testimony, including her concession that she did not review the
documents underlying the time entries. Because McCully did not know the contents
of these various e-mails or even their length, the probate court, in its role as
factfinder, could have reasonably found her opinion as to the degree of attention
15
these e-mails merited in the context of this contentious proceeding unpersuasive. See
Fuentes v. Zaragoza, 555 S.W.3d 141, 172 (Tex. App.—Houston [1st Dist.] 2018,
no pet.) (reasonableness of fee is fact question); Gonyea v. Scott, 541 S.W.3d 238,
244 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (when trial court acts as
factfinder it decides credibility of witnesses and weight their testimony should be
given). On this record, the probate court did not abuse its discretion in rejecting
Collins’s complaint that Shannon’s requested fees were unreasonable or excessive.
Collins’s complaint that Shannon did not testify her fees were reasonable and
necessary is inaccurate. In her payment request, Shannon included a verification
swearing under oath that the fees stated in her invoice were reasonable and
necessary. The probate court thus did not abuse its discretion by awarding Shannon’s
fees in the absence of testimony as to their reasonableness or necessity.
Guardian Ad Litem’s Fees
Collins contends the probate court erred in awarding fees to Berlinger on four
distinct bases. First, Collins argues that because Berlinger did not oppose
guardianship, he failed to fulfill his duties as guardian ad litem, which disentitles
him to fees. Second, Collins argues that Berlinger’s fees were excessive. Third,
Collins argues that the Estates Code requires the probate court to set the
compensation of a guardian ad litem in advance of the performance of services rather
than entertain an application for fees after the performance of services. Fourth,
16
Collins argues that some of Berlinger’s fees relate to the defense of his fee request,
which are not recoverable because they were incurred for his own benefit.
A guardian ad litem “is entitled to reasonable compensation for services
provided in the amount set by the court, to be taxed as costs.” EST. § 1054.055(a).
Like an attorney ad litem, an appointed guardian ad litem has a right to compensation
regardless of the outcome of the proceeding. See In re Guardianship of Glasser, 297
S.W.3d at 378 (holding so with respect to attorney ad litem under indistinguishable
compensation provision).
Collins argues that Berlinger failed to fulfill his duty as guardian ad litem
because he did not make an effort to avoid guardianship as desired by Owens. Collins
also faults Berlinger for failing to investigate the suitability of Collins for
appointment as Owens’s guardian, if guardianship was necessary, as well as the
allegation that Collins had financially exploited Owens. Had Berlinger investigated,
Collins maintains, he would have known that Collins did not exploit Owens.
A guardian ad litem has no duty to advocate for a ward’s preferences. Rather,
his role is to represent and protect the ward’s interests. See EST. §§ 1054.051,
1054.054(b) (guardian ad litem represents and protects interests of incapacitated
person). In doing so, the guardian ad litem must investigate whether guardianship is
necessary and evaluate possible alternatives. Id. § 1054.054(c).
17
The probate court appointed Berlinger in February 2018. By then, Owens had
undergone a court-ordered independent medical exam. Based on this exam, Dr.
Asghar-Ali opined that Owens could not make complex financial decisions, manage
a personal bank account, administer her own medications, give informed consent for
purposes of healthcare, or perform instrumental activities of daily life like cleaning,
cooking, shopping, or traveling. Collins’s expert, McCully, was unaware of this fact
when she testified that Berlinger did not fulfill his duties as guardian ad litem by
opposing the appointment of a guardian. Nor was McCully aware of the other
evidence of Owens’s incapacity.
The probate court ordered Collins to account for her management of Owens’s
finances. Collins filed an accounting in September 2018. But the probate court did
not decide whether this accounting adequately addressed the allegations of financial
exploitation before Owens died. McCully did not explain how Berlinger could have
urged that Collins be appointed as Owens’s guardian or remain in charge of Owens’s
finances and medical care under existing powers of attorney in light of this
unresolved dispute, except to assert that Berlinger should have independently
investigated the matter and concluded that Collins was blameless. To the extent
McCully asserted that Berlinger refused to even investigate the possibility that
Collins’s was blameless, she relied on a letter written by Collins’s counsel making
this assertion. Berlinger, however, joined Drexler and Shannon in filing written
18
objections to Collins’s accounting, which is some evidence that he did in fact
consider Collins’s accounting but found it wanting.
On this record, the probate court could have reasonably found that Berlinger
did not fail to fulfill his duty as guardian ad litem. The probate court therefore did
not abuse its discretion by implicitly rejecting Collins’s contrary argument.
As to the excessiveness of Berlinger’s fees, Collins makes the same basic
complaint on appeal about his fees that she does about Shannon’s. That is, Collins
complains that Berlinger billed 15 minutes’ time regardless how much time he
actually spent on a task, including for reviewing simple correspondence. Once again,
however, Collins does not discuss specific time entries in Berlinger’s invoice or
explain why these particular entries are unreasonable. She instead relies on
McCully’s general testimony that billing a quarter-hour for this type of work is not
reasonable. But as previously discussed, McCully conceded she did not review the
documents underlying the time entries. Because McCully did not know the contents
or length of the correspondence in question, the probate court, in its role as
factfinder, could have reasonably found her opinion as to the degree of attention
correspondence merited in the context of this contentious proceeding unpersuasive.
See Fuentes, 555 S.W.3d at 172 (reasonableness of fee is fact issue); Gonyea, 541
S.W.3d at 244 (trial court as factfinder decides weight to give testimony). On this
19
record, the probate court therefore did not abuse its discretion in rejecting Collins’s
complaint that Berlinger’s requested fees were unreasonable or excessive.
Collins further argues that the Estates Code requires a probate court to set the
amount of compensation a guardian ad litem receives in advance of the performance
of services. She relies on the Code’s provision stating that a guardian ad litem “is
entitled to reasonable compensation for services provided in the amount set by the
court.” EST. § 1054.055(a). Collins contends that this statutory language can only be
interpreted to mean that a probate court must decide the rate and method of a
guardian ad litem’s billing at the outset of his appointment. We disagree.
The statute does not include any language expressly requiring an advance
determination. In this context, the verb set simply means decided on. See NEW
OXFORD AMERICAN DICTIONARY 1597 (3d ed. 2010) (defining “set” as to “decide
on”); see also Holloway v. Butler, 828 S.W.2d 810, 812 (Tex. App.—Houston [1st
Dist.] 1992, writ denied) (noting that statutes authorizing trial courts “to appoint and
set reasonable compensation” for guardian ad litem and others have existed for
decades and legislature has set no guidelines for determination of these fees other
than reasonableness). Thus, the Estates Code provides for reasonable compensation
in the amount decided on by the court. The Code does not mandate that the probate
court make this decision at a particular time or that it do so by a particular method.
20
The probate court therefore did not abuse its discretion in failing to set a rate or
method of billing for the guardian ad litem at the outset of his appointment.
Collins also argues that Berlinger incurred some of the fees that he was
awarded by the probate court in defense of his payment request. Collins maintains
that Berlinger cannot recover these particular fees because they were incurred for his
own benefit rather than in fulfillment of his duties as guardian ad litem.
There is a split of authority on this issue. At least one court of appeals has held
that a guardian ad litem cannot recover fees incurred in defense of his request for
compensation. See Goodyear Dunlop Tires N. Am. v. Gamez, 151 S.W.3d 574, 587
(Tex. App.—San Antonio 2004, no pet.) (guardian ad litem not entitled to
compensation for drafting fee statement, preparing for fee hearing, or defending fees
at hearing); Holt Tex., Ltd. v. Hale, 144 S.W.3d 592, 597–98 (Tex. App.—San
Antonio 2004, no pet.) (trial court abused its discretion in awarding guardian ad
litem fees for 15 hours spent seeking to recover fees); see also In re Guardianship
of Glasser, 297 S.W.3d at 378–79 (holding same as to attorney ad litem). But at least
one other court has held that such fees are recoverable. See DeSai v. Islas, 884
S.W.2d 204, 206 (Tex. App.—Eastland 1994, writ denied) (guardian ad litem
entitled to recover fees incurred in defense of fees). Our court does not appear to
have answered this question. But cf. J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 97
(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (trial court did not abuse
21
discretion by denying attorney ad litem conditional award of appellate fees because
appellate fees were not incurred in fulfillment of his duties as ad litem given that
there was no conflict of interest between guardian and ward on appeal).
Though we think the question is a significant one, we decline to answer it here
because Collins did not make this objection in the probate court, including in her
new-trial motion, and the probate court thus did not rule on it. As a court of appeals,
we review a trial court’s rulings for error. See TEX. R. APP. P. 33.1(a) (to present
complaint for appellate review record must show party made complaint in trial court
and trial court implicitly or explicitly ruled or refused to do so). A party generally
cannot use an appeal to present new issues she did not raise below. See Chevriere v.
Mitchell, No. 01-18-00761-CV, 2019 WL 1996498, at *2 (Tex. App.—Houston [1st
Dist.] May 7, 2019, no pet.) (mem. op.) (courts of appeals are primarily courts of
review and ordinarily don’t address issues not ruled on by trial court). We thus hold
that Collins failed to preserve any error associated with this issue.
Temporary Guardian’s Fees
Collins contends the probate court erred in awarding fees to Drexler on three
distinct grounds. First, Collins argues that because Drexler did not adequately
provide for Owens’s medical care, failed to make insurance payments, and did not
file a proper accounting, she failed to fulfill her duties as temporary guardian. Collins
also argues that Drexler exceeded her statutory authority as temporary guardian by
22
filing guardianship applications. These acts, Collins contends, disentitle Drexler to
fees. Second, Collins argues that Drexler’s fees were excessive. Third, Collins
argues that some of Drexler’s fees relate to the defense of her payment request,
which are not recoverable as they were incurred for her own benefit.
A probate court “may authorize compensation for a guardian serving as a
guardian of the person alone from available funds of the ward’s estate or other funds
available for that purpose.” EST. § 1155.002(a). A “guardian of an estate is entitled
to reasonable compensation on application to the court at the time the court approves
an annual or final accounting.” Id. § 1155.003(a). The probate court may deny
compensation in whole or part if the court finds the guardian did not adequately
perform her duties or if it removed the guardian for cause. Id. § 1155.008. In
addition, when, as here, a qualified guardian is authorized to perform legal services
on behalf of the ward’s estate and does so, she may be compensated for her legal
services in addition to being compensated for her services as guardian of the person
and estate. See Epstein, 175 S.W.3d at 807–10 (relying on Henderson v. Viesca, 922
S.W.2d 553, 557–58 (Tex. App.—San Antonio 1996, writ denied)).
Collins argues that Drexler failed to fulfill her duty to adequately provide for
Owens’s medical care by depriving Owens of a phone paired with a cochlear implant
that allowed her to better communicate with family members. In support of this
argument, Collins’s relies on McCully’s testimony at the April 2019 hearing. But
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McCully conceded that she, in turn, relied on a letter written by Collins’s counsel
for her knowledge of this subject. The record contains no evidence on the issue.
As to Drexler’s ostensible failure to make certain insurance payments,
McCully testified that these failures were egregious because they resulted in the
lapse of a home insurance policy and a long-term care policy. But McCully’s
testimony about these policies was based on a letter that Collins’s counsel wrote to
Drexler. When asked whether she had seen any proof or documentation that Drexler
was responsible for the lapse of these policies, McCully conceded that she had not.
With respect to Drexler’s final account and amended final account, McCully
in essence opined that it was too summary in nature and lacked adequate supporting
documentation. But McCully acknowledged that she had not reviewed the case file
and thus was unaware of any other documents relating to Drexler’s management of
the estate that may have been filed beforehand. In addition, Sansom contradicted
McCully by opining that Drexler’s amended final account was adequate.
McCully opined that Drexler exceeded her authority by seeking an extension
of the temporary guardianship and the appointment of a third-party permanent
guardian. But McCully agreed that a temporary guardian has the authority specified
in the probate court’s order. See EST. § 1251.101(c). She further agreed that the
probate court’s order appointing Drexler was “very broad,” giving Drexler authority
not unlike the authority a permanent guardian might possess. McCully later
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conceded that Drexler was allowed to seek the appointment of a third-party
permanent guardian but opined that it was improper to do so. McCully’s opinion as
to the impropriety of doing so, however, was premised on her mistaken belief that
the only medical evidence in the record showed Owens to be competent.
On this record, the probate court could have reasonably found that Drexler did
not fail to fulfill her duty as temporary guardian. The probate court therefore did not
abuse its discretion by implicitly rejecting Collins’s contrary argument.
As to the excessiveness of Drexler’s fees, Collins makes the same general
argument on appeal that she does as to Shannon’s and Berlinger’s fees. Collins
complains that Drexler billed 15 minutes’ time regardless how much time she
actually spent on a task, including for reviewing correspondence. Once again,
however, Collins does not discuss specific time entries in Drexler’s invoice or
explain why these particular entries are unreasonable. Collins instead relies on
McCully’s general testimony that billing a quarter-hour for this type of work is not
reasonable. But as previously discussed, McCully conceded she did not review the
documents underlying the time entries. Because McCully did not know the contents
or length of the correspondence in question, the probate court, in its role as
factfinder, could have reasonably found her opinion as to the degree of attention
correspondence merited in the context of this contentious proceeding unpersuasive.
See Fuentes, 555 S.W.3d at 172 (reasonableness of fee is fact issue); Gonyea, 541
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S.W.3d at 244 (trial court as factfinder decides weight to give testimony). On this
record, the probate court therefore did not abuse its discretion in rejecting Collins’s
complaint that Drexler’s requested fees were unreasonable or excessive.
In addition, in her argument about the excessiveness of Drexler’s fees, Collins
includes a general citation to 45 consecutive pages of McCully’s testimony at the
April 2019 hearing in which McCully identified a multitude of billing entries in
Drexler’s initial 36-page invoice as being unreasonable or unnecessary on various
grounds. But Collins does not present any substantive discussion or analysis as to
these numerous entries in her briefing to this court. We hold that Collins has waived
any error as to Drexler’s fees corresponding to these entries by failing to adequately
brief the subject. See TEX. R. APP. P. 38.1(i); Eagle Oil & Gas Co. v. Shale Expl.,
549 S.W.3d 256, 286 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d).
Collins argues that Drexler’s second invoice for Tamborello’s fees relating to
the April 2019 hearing are not recoverable because they were incurred in defense of
her payment request rather than in fulfillment of her duties as temporary guardian.
As an initial matter, we disagree with Collins’s assertion that Tamborello’s
services exclusively relate to the defense of Drexler’s fees. The April 2019 hearing
was not limited to the payment requests of Drexler, Berlinger, and Shannon. That
hearing also addressed two other matters: whether the probate court should strike
Drexler’s, Berlinger’s, and Shannon’s objections to Collins’s accounting of her
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management of Owens’s finances and whether the probate court should approve
Drexler’s amended final account. Collins does not contend that either of these other
two matters were for Drexler’s own benefit. Nor could Collins do so. We also note
that Collins’s expert, McCully, agreed that the probate court authorized Drexler to
retain attorneys as necessary in the administration of the estate.
To the extent Collins claims the probate court should have disallowed some
unidentified subset of Tamborello’s fees because they were incurred in defense of
Drexler’s fees and thus are unrecoverable, Collins did not make this objection in the
probate court, including in her new-trial motion, and the probate court did not rule
on it. We hold that Collins waived any error associated with these fees. See TEX. R.
APP. P. 33.1(a); Chevriere, 2019 WL 1996498, at *2; see also Haden v. David J.
Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (party who doesn’t object to failure to segregate legal services for which fees
are recoverable from those for which fees are unrecoverable waives error).
Temporary Guardian’s Final Account
Collins contends the probate court erred in approving Drexler’s second
amended final account on two grounds. First, she argues that Drexler failed to sign
the account, which makes it defective. Second, she argues that Drexler failed to serve
the second amended account on Collins’s counsel, which deprived Collins of the
opportunity to make objections to the final account before it was approved.
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Collins does not state a standard of review for evaluating this issue. Drexler
contends the standard of review is abuse of discretion. We are aware of at least one
opinion reviewing the probate court’s findings for evidentiary sufficiency. See In re
Guardianship of Tischler, 505 S.W.3d 73, 76 (Tex. App.—San Antonio 2016, no
pet.); see also Bozeman v. Kornblit, 232 S.W.3d 261, 264 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (order approving final account not final and appealable until
proceeding is closed). Because Collins’s arguments are based on a mistake of fact
about the record and an ostensible error that did not harm her, we need not decide
the proper standard of review.
Collins’s assertion that Drexler’s second amended final account is unsigned
and thus defective is factually incorrect. The clerk’s record shows Drexler signed
and verified the second amended final account. A file memo in the clerk’s record
indicates that the district clerk’s office initially omitted the signature page through
inadvertence. Drexler signed the second amended final account. Collins’s assertion
to the contrary is simply wrong.
Drexler’s second amended final account was electronically filed. Assuming
Collins nonetheless did not receive notice of it, she argues this lack of notice
deprived her of the opportunity to object to the second amended final account. See
EST. § 1204.105 (requiring clerk to issue citation when final account is presented for
approval); id. § 1204.106(b) (court to hear objections to account). But the sole
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deficiencies with the second amended final account that Collins identifies on appeal
are the same deficiencies she complained about with respect to the prior final account
and amended final account. In other words, she already presented these objections
to the probate court, which rejected them. She also raised lack of notice as to the
second amended final account in her new-trial motion, which the probate court
denied. Collins does not appeal from the probate court’s order denying that motion.
On this record, we hold that the probate court’s failure or refusal to hear the
exact same objections a second time, if erroneous, is not reversible because it did
not probably cause the rendition of an improper judgment or probably prevent
Collins from properly presenting her appeal. See TEX. R. APP. P. 44.1(a). With
respect to the presentation of her appeal, we note that Collins’s brief does not contain
any substantive discussion or analysis as to the deficiencies of the second amended
final account or Drexler’s prior accounts. Thus, to the extent Collins intends to raise
these deficiencies for a decision on the merits, we further hold that Collins has
waived any error relating to Drexler’s accounts by failing to adequately brief the
issue. See TEX. R. APP. P. 38.1(i); Eagle Oil & Gas Co., 549 S.W.3d at 286.
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CONCLUSION
We affirm the probate court’s judgment.
Gordon Goodman
Justice
Panel consists of Justices Kelly, Goodman, and Countiss.
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