in the Estate of Louis Edward Irving

NUMBER 13-20-00081-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE ESTATE OF LOUIS EDWARD IRVING, DECEASED
On appeal from the County Court at Law
of Walker County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras
Appellant Arliscia Irving Webb 1 appeals two summary judgments in favor of
appellee Kenna Seiler. By four issues, Arliscia argues: (1) the summary judgments are
inconsistent with a Rule 11 agreement in the record, (2) Seiler’s motion for partial
summary judgment was legally deficient, (3) summary judgment on Seiler’s claims for
breach of fiduciary duty “is legally and factually deficient as a matter of law,” and (4) the
1 We will refer to appellant and her four siblings by their first name for ease of reference.
first partial summary judgment granted by the trial court “cannot support” the second
summary judgment granted. We affirm in part, reverse in part, and remand for further
proceedings.
I. BACKGROUND 2
In 1998, Arliscia and her four siblings (Reginald, Janice, Bridget, and Tammy) filed
an application for letters of independent administration and declaration of heirship as to
the estate of their father, Louis Edward Irving. 3 The application sought to have Arliscia
appointed as the estate’s personal representative and independent administrator. In
2000, the trial court granted the request for an independent administration and appointed
Arliscia as the estate’s administrator. The trial court also rendered a judgment declaring
the siblings were Irving’s heirs, each with a one-fifth interest in the estate.
In May 2015, Reginald filed a petition for an accounting and distribution, alleging
Arliscia had not made an accounting or distribution of the estate’s assets. See TEX. EST.
CODE ANN. §§ 359.051, 404.001. In September 2017, after a piece of real property in the
estate was sold, Janice, Bridget, and Tammy filed their own petition requesting an
accounting and that Arliscia distribute $26,790.42 of the sales proceeds she “wrongfully
retained.” The sisters’ petition stated that Arliscia improperly received two fees as
administrator in relation to the sale: a $14,250.00 commission on the overall sale
2 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3 The purpose of independent administration of an estate is to free an independent executor or
administrator from the expense and control of judicial supervision, except where otherwise provided by the
estates code. See TEX. EST. CODE ANN. §§ 404.001, 404.002; Mohseni v. Hartman, 363 S.W.3d 652, 656
(Tex. App.—Houston [1st Dist.] 2011, no pet.).
2
proceeds and an additional $12,540.42 in commission on the distributions of the proceeds
to each of the heirs. 4
Arliscia filed a response in November 2017, disputing that the funds were
“wrongfully retained” and stating there were no other assets of the estate. At the same
time, she filed a “final annual account” covering the period between November 30, 2015
and August 30, 2017. See id. §§ 362.003, 362.004. In this final annual account, Arliscia
stated that “[s]ince qualifying as Administrator[,] she was not aware or made aware of her
duties as Administrator, therefore this Estate was not administered in accordance with
the provisions of the Texas Estate Code, however [Arliscia] did pay the debts of the estate
and filed final tax returns for the decedent.” The final account consists of three pages
detailing the estates’ income from that two-year period (insurance proceeds and the sale
of the real property) and multiple “Disbursements/Expenses” with a dollar amount for
each. Arliscia did not include any receipts or other verification for the expenses.
At the same time as she filed her final account, Arliscia filed an application to be
discharged as the administrator of the estate and an application seeking an
administrator’s fee of $50,882.43. In her application for an administrator’s fee, Arliscia
acknowledged she “retained $26,790.42 as compensation for her services as
Administrator” and requested “the Court award her the retained amount . . . .”
4 The $14,250 commission was five percent of the sales price of $285,000. See TEX. EST. CODE
ANN. § 352.002(a) (providing that an administrator who manages the estate in compliance with the estates
code “is entitled to receive a five percent commission on all amounts [the] administrator actually receives
or pays out in cash in the administration of the estate”). Arliscia also took a five percent commission of the
disbursements of sale proceeds she made to her siblings, despite the estates code prohibiting such a fee.
See id. § 352.002(a), (b)(2)(C) (providing that an administrator may not receive a commission for “paying
out cash to an heir or legatee in that person’s capacity as an heir or legatee”).
3
Janice, Bridget, and Tammy objected to Arliscia’s final account statement because
it failed to provide the required content. See id. § 362.004(b) (requiring an account for
final settlement to be accompanied by “proper vouchers supporting each item included in
the account”). After a hearing, the trial court entered an order, based “upon the
agreements expressed on the record,” compelling Arliscia to submit a final annual
account with supporting documents and to distribute $5,358.00 to each of the five siblings.
On January 8, 2018, the trial court entered another order, accepting Arliscia’s
resignation as administrator and appointing Seiler as the estate’s successor
representative. The order further provided that Arliscia’s “duties shall not cease until a
final account is provided as required” and “that Arliscia . . . shall no longer be entitled to
letters in this matter.” See id. § 362.003.
On May 3, 2018, Seiler filed suit on behalf of the estate against Arliscia for
breaches of her fiduciary duties, alleging that Arliscia “misused and mishandled Estates
[sic] funds and admits that she did not administer the Estate in accordance with the Texas
Estate Code . . . .” Seiler’s petition listed forty-five outgoing transactions from the estate’s
two bank accounts totaling $73,360.10 which she alleged were “unauthorized and
unverified.” One of the transactions listed was the $26,790.42 commissions Arliscia
awarded herself out of the real property sales proceeds and corresponding
disbursements. Seiler argued “the payment of commission is not appropriate under the
circumstances” and noted “the court may . . . wholly or partly deny a commission allowed”
for an estate’s administrator. Seiler sought a judgment against Arliscia “for the sum of
$73,360.10 for misused and mismanaged funds” and “such other relief to which [Seiler]
may be justly entitled.” Arliscia filed a general denial and asserted a counterclaim for a
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declaratory judgment “of her right to a claim against the Estate in the amount of
$36,446.32 for her services as” the administrator, as well as a claim for attorney’s fees.
In August 2019, Seiler filed a motion for partial summary judgment on her
affirmative claims. The motion listed each of the forty-five transactions from the estate’s
two bank accounts and pointed to the transactions in the relevant bank statements. In
support of her motion, Seiler submitted: Arliscia’s final accounting, which provided that
she did not administer the estate as required and did not contain documentation verifying
the expenses listed; Arliscia’s multiple requests for an administrator’s fee; Arliscia’s
answer to interrogatories providing that the estate funds were in the two bank accounts;
and the bank statements showing the complained of transactions.
Arliscia filed a response arguing that Seiler “failed to prove all elements of her claim
as a matter of law”; that Seiler had not pleaded a cause of action for fee-forfeiture; and
that issues of fact existed as to five of the transactions because the funds had been
redeposited into the estate’s bank accounts. On August 28, 2019, the trial court signed
an order granting Seiler’s motion for partial summary judgment, awarding her $73,760.10,
“and such other relief for which she may be justly entitled . . . .”
Seiler filed a second motion for summary judgment as to Arliscia’s remaining
counterclaims for attorney’s fees and declaratory judgment. Seiler argued the trial court
“already ruled that the fees collected were improper” when it granted the prior partial
summary judgment, and she reiterated that Arliscia was not entitled to compensation
because she did not take care of or manage the estate property prudently. The motion
further argued that the statutes that Arliscia relied on did not entitle her to attorney’s fees.
5
On December 20, 2019, the trial court granted Seiler’s second motion for summary
judgment, ordering that Arliscia take nothing on her claims for attorney’s fees and
declaratory judgment. This appeal followed.
II. DISCUSSION
A. Standard of Review
We review the trial court’s ruling on a motion for summary judgment de
novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). In the case of a
traditional summary judgment, the issue on appeal is whether the movant met the
summary judgment burden by establishing that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV.
P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).
If the movant’s motion and summary judgment proof facially establish a right to
judgment as a matter of law, then the burden shifts to the nonmovant to raise a material
fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). We consider all the evidence in the light most favorable to
the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could
and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548–49 (Tex. 1985). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of the
summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755–56 (Tex. 2007). In reviewing a summary judgment, we consider all grounds
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presented to the trial court and preserved on appeal. Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
B. 2017 Agreement
By her first issue, Arliscia argues the summary judgments are inconsistent with the
Rule 11 agreement she and her siblings agreed to in open court in 2017 regarding
distribution of the property sale proceeds. Specifically, Arliscia argues that the Rule 11
agreement served as a family settlement agreement, and thus, Seiler’s “calculation is now
moot and should be rejected.”
A family settlement agreement is a favored alternative to formal administration of
a decedent’s estate. Estate of Riefler, 540 S.W.3d 626, 634 (Tex. App.—Amarillo 2017,
no pet.); see In re Estate of Hodges, 725 S.W.2d 265, 267 (Tex. App.—Amarillo 1986,
writ ref’d n.r.e.). The family settlement doctrine, which states that such agreements may
be entered into without having to wait until after distribution through formal administration,
is applicable generally when there is a disagreement on the distribution of an estate and
the beneficiaries enter into an agreement to resolve the controversy. Estate of Riefler,
540 S.W.3d at 635; In re Estate of Halbert, 172 S.W.3d at 200. Rule 11 of the Texas
Rules of Civil Procedure states, “[u]nless otherwise provided in these rules, no agreement
between attorneys or parties touching any suit pending will be enforced unless it . . . be
made in open court and entered of record.” TEX. R. CIV. P. 11. Once the parties enter into
a valid settlement agreement under Rule 11, the trial court may render an agreed
judgment based on the settlement agreement. Lane-Valente Indus. (Nat’l), Inc. v. J.P.
Morgan Chase, N.A., 468 S.W.3d 200, 204 (Tex. App.—Houston [14th Dist.] 2015, no
pet.).
7
To preserve her complaint for our consideration on appeal, Arliscia needed to raise
this argument in her response to Seiler’s motion for partial summary judgment. See TEX.
R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion,
answer[,] or other response shall not be considered on appeal as grounds for reversal.”);
State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986); City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (“The written
answer or response to [a summary judgment] motion must fairly apprise the movant and
the court of the issues the non-movant contends should defeat the motion.”). She did not.
And to the extent Arliscia complains of an error in the judgment, Arliscia needed to inform
the trial court of her objection by a motion to amend or correct the judgment, a motion for
new trial, or some other similar method to preserve error. Arthur’s Garage, Inc. v. Racal-
Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex. App.—Dallas 1999, no pet.). Arliscia
has done neither. As such, this argument is waived. See TEX. R. APP. P. 33.1(a); City of
Houston, 589 S.W.2d at 678.
We overrule Arliscia’s first issue.
C. Sufficiency of Motion
By her second issue, Arliscia argues that Seiler’s first motion for partial summary
judgment was “fatally defective because the grounds for granting summary judgment
[were] not expressly set out as required by Texas law.” Specifically, Arliscia argues that
the motion “failed to set forth the grounds, or reasons entitling it to judgment as a matter
of law.”
A “motion for summary judgment shall state the specific grounds therefor.” See
TEX. R. CIV. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341
8
(Tex. 1993). “[T]he motion must identify or address the cause of action or defense and its
elements.” Black v. Victoria Lloyds Ins., 797 S.W.2d 20, 27 (Tex. 1990). We “cannot read
between the lines, infer or glean from the pleadings or the proof any grounds for granting
the summary judgment other than those grounds expressly set forth before the trial court
in the motion for summary judgment.” McConnell, 858 S.W.2d at 343.
Here, Seiler’s motion stated that the case “involves breaches of fiduciary duties by
[Arliscia], during her time she served [sic] as Independent Administrator of Louis Edward
Irving.” It sought Arliscia’s disqualification from receiving compensation and for damages
to the estate in the amount of $73,760.10, including her self-awarded compensation.
Seiler’s motion did not explicitly list out the elements for a breach of fiduciary duty claim
or a fee-forfeiture claim; however, a summary judgment motion need not explicitly identify
the elements of the claims if the motion addresses those elements. See Black, 797
S.W.2d at 27 (“In order to conclusively establish the requisite essential element or
elements, the motion must identify or address the cause of action or defense and its
elements.” (emphasis added)).
Generally, the elements of a claim for breach of fiduciary duty are (1) the existence
of a fiduciary duty, (2) a breach of that duty, (3) causation, and (4) damages. First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). Seiler’s
motion identifies Arliscia as the independent administrator of the estate and alleged that
Arliscia owed fiduciary duties to the estate and the heirs. This identified and addressed
the first element of Seiler’s breach of fiduciary duty cause of action. See Mohseni v.
Hartman, 363 S.W.3d 652, 656–57 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (noting
that an estate’s administrator has a fiduciary duty to exercise reasonable care in the
9
administration of the estate property); In re Roy, 249 S.W.3d 592, 596 (Tex. App.—Waco
2008, pet. denied) (“As a fiduciary, an executor [of an estate] has a duty to protect the
beneficiaries’ interest by fair dealing in good faith with fidelity and integrity.”); see also Ali
v. Smith, 554 S.W.3d 755, 762 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Seiler
noted that Arliscia conceded she did not administer the estate in accordance with the
Texas Estates Code and that the estate’s funds were in the two bank accounts identified.
Seiler then listed an aggregate of forty-five transactions from both accounts and stated
that they were “unauthorized or unverified”; that the estate funds were “misused and
mishandled”; and that the “charges did not have receipts for verification.” Seiler noted the
transactions total $73,760.10 and that, once assets are in the possession of a fiduciary,
the burden is on the fiduciary to account for those assets. See Beaumont Bank, N.A. v.
Buller, 806 S.W.2d 223, 226 (Tex. 1991). The second, third, and fourth elements of the
cause of action for breach of fiduciary claim were properly identified and addressed.
A fee-forfeiture claim requires proof that: (1) the fiduciary committed a “clear and
serious” breach of the duties owed; (2) forfeiture or disgorgement is appropriate; and (3)
the amount sought to be forfeited is appropriate. Heatley v. Red Oak 86, L.P., No. 05-18-
01083-CV, __ S.W.3d __, __ , 2020 WL 4745553, at *12 (Tex. App.—Dallas 2020, no
pet.); Webb v. Crawley, 590 S.W.3d 570, 587 (Tex. App.—Beaumont 2019, no pet.); see
TEX. EST. CODE ANN. § 352.004(a) (providing that a court may deny commission “wholly
or in part” to an administrator if “the court finds that the executor or administrator has not
taken care of or managed the estate prudently”); see also Parker, 514 S.W.3d at 221
(“First, in principle, a person in a trust relationship who does not provide the loyalty
bargained for fails to fulfill his agreement and is not entitled to be paid in full.”).
10
Here, Arliscia issued herself a fee for her administration of the estate, and Seiler’s
motion can be reasonably read as seeking a forfeiture of this fee and addressing the
elements of that cause of action. As noted, Seiler identified that Arliscia owed fiduciary
duties to the estate; that she admitted she did not administer the estate as required; that
she failed to take care of and manage the estate in a prudent manner; and that she did
“not have the proper verification to support many of her expenditures.” Seiler noted that
the estates code provides the administrator with a commission if the estate was managed
in compliance with it and that compensation for Arliscia was “not appropriate.” And Seiler
sought to recover from Arliscia the entire commission she paid herself. The elements of
Seiler’s fee-forfeiture claim were properly identified and addressed.
We conclude that Seiler’s motion for partial summary judgment sufficiently
presented and addressed the elements of her breach of fiduciary duty claim and fee-
forfeiture claim. See McConnell, 858 S.W.2d at 342; cf. Madisonville State Bank v.
Canterbury, Stuber, Elder, Gooch & Surratt, P.C., 209 S.W.3d 254, 259 (Tex. App.—
Dallas 2006, no pet.). We overrule Arliscia’s second issue.
D. Breach and Amount of Damages
By her third issue, Arliscia argues there is insufficient evidence that she breached
her fiduciary duties and of the damages awarded. First, Arliscia argues that Seiler’s
motion for partial summary judgment “fails to provide factual support or analysis for each
and every transaction to prove how the alleged transactions constitute a breach of
fiduciary duty, or how each of the Transactions either benefitted [Arliscia] or damaged the
11
Estate.” 5 We construe this argument as challenging whether Seiler established her right
to summary judgment on each of the transactions.
An estate’s administrator has a fiduciary duty to exercise reasonable care in the
administration of the estate property. Mohseni, 363 S.W.3d at 656–57; see TEX. EST.
CODE ANN. § 351.101 (“An executor or administrator of an estate shall take care of estate
property as a prudent person would take of that person’s own property . . . .”). Here,
Seiler’s summary judgment evidence showed that Arliscia: was the estate’s administrator
for eighteen years; filed a single accounting covering the last two years of her time as
administrator6; admitted the estate’s funds were in the two bank accounts noted by Seiler;
admitted she did not administer the estate as required by the estates code; and provided
no receipts or other documents verifying the expenses listed in the final account or for
any of the transactions Seiler complains of. This evidence established that Arliscia failed
to exercise reasonable care in the administration of the estate property. See Mohseni,
363 S.W.3d at 656–57. Moreover, Arliscia did not provide documentation or argument
that those charges were associated with an estate purpose. 7 This established that the
estate was harmed by each specific amount and that the harm was caused by Arliscia’s
breaches of her fiduciary duty. We conclude that Seiler established her right to summary
judgment as a matter of law as to each transaction. See Corpus Christi Bank & Tr. v.
5 Arliscia does not present this argument on appeal as to Seiler’s fee-forfeiture claim.
6 The Texas Estates Code requires an estate’s administrator to file with the court a detailed account
of the estate within sixty days after the first anniversary of his or her appointment. See TEX. EST. CODE ANN.
§ 404.001.
7 In her answer to Seiler’s interrogatories, Arliscia stated:
I allowed all my siblings access to the funds through the initial Huntsville bank account. I
also managed payments for the Estate property obligations from Estate funds. I did what
my siblings and I thought was fair and correct when administering the Estate. All major
decisions regarding the Estate were made via a majority vote of the heirs.
12
Roberts, 597 S.W.2d 752, 755 (Tex. 1980) (noting that trustee has an obligation to make
a full accounting of all funds belonging to the estate); Garcia v. Garcia, 878 S.W.2d 678,
680 (Tex. App.—Corpus Christi–Edinburg 1994, no writ) (“When estate administrators or
executors fail to file the proper inventories and accountings, they bear the burden to prove
the validity of charging the estate with the expenses.”); Scott v. Taylor, 294 S.W. 227,
230–31 (Tex. App.—Amarillo 1927, no writ) (“With reference to the claims for expenses
of administration, the burden of proof is upon [the administrator] to show that the
expenses incurred were necessary and proper and that the amounts charged are fair and
reasonable.”); see also TEX. EST. CODE ANN. §§ 351.052(a), 362.004(b). Thus, the burden
then shifted to Arliscia to raise an issue of fact as to any of the transactions. See Centeq
Realty, 899 S.W.2d at 197.
Arliscia argues that she raised a fact issue as to five of the transactions Seiler
listed, totaling $10,800, because the funds from each of these transactions were later
redeposited, and thus, “no harm accrued to the Estate.” Arliscia argued in her response
to Seiler’s motion for partial summary judgment that: (1) a check for $1,500 from August
17, 2015, was a reimbursement to herself for taxes, pointing to a tax receipt for $1,500 in
property taxes paid for estate property on January 30, 2012; (2) $3,100 transferred to
another account on October 19, 2015, were redeposited into one of the estate’s accounts
on October 21, 2015, pointing to a deposit slip showing a deposit of $3,100 in cash; (3–
4) a check written to Arliscia for $1,675 on October 27, 2015, and a cash withdrawal for
$1,625 on October 30, 2015, were repaid, pointing to a deposit slip providing that she
deposited $3,200 on November 4, 2015; and (5) a $3,000 check written to Arliscia on
September 25, 2015, was paid back to the estate on September 28, 2015, pointing to a
13
deposit slip for $3,000. Seiler did not dispute these assertions by Arliscia at the trial court
or in her appellate brief. Viewing this evidence in the light most favorable to Arliscia, we
conclude that she raised a fact issue as to these five transactions totaling $10,800. See
Nixon, 690 S.W.2d at 548–49.
As to the remaining transactions, Arliscia generally argued in her response to
Seiler’s motion for partial summary judgment that she “has evidence and facts supporting
a different narrative with regard to the contested transactions.” In her appellate brief, she
states:
The amount of damages awarded in the trial court’s judgment $73,760.10
[is] the same amount alleged in the petition, with no support by admissible
summary judgment evidence Tex. R. Civ. P. 166a(c).[ 8] Rather, the trial
court simpl[y] accept[ed] [Seiler’s] conclusions notwithstanding [Arliscia’s]
evidence.
To the extent Arliscia is contending that she raised a fact issue as to any of the
other transactions, we note that she did not elaborate or point to any of the 350 plus pages
of evidence submitted with her response or explain how any of it raised a fact issue as to
any of the transactions. In determining whether a summary judgment respondent
successfully carried his or her burden, neither this Court nor the trial court is required to
wade through a voluminous record to marshal respondent’s proof. See Rogers v. Ricane
Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989); Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App.—San Antonio 2006, no pet.). Thus, when presenting summary judgment
proof, a party must specifically identify the supporting proof on file that it seeks to have
considered by the trial court. See Arredondo, 198 S.W.3d at 238. And attaching entire
documents to a motion for summary judgment or a response and referencing them only
We note that Arliscia did not lodge any objections as to the admissibility of the evidence Seiler
8
submitted in support of her motion for partial summary judgment.
14
generally does not relieve the party of pointing out to the trial court where in the
documents the issues set forth in the response are raised. See id.; Guthrie v. Suiter, 934
S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no writ). Therefore, we conclude
Arliscia did not raise a fact issue to defeat summary judgment as to the remaining
transactions. See Arredondo, 198 S.W.3d at 238–39.
We sustain Arliscia’s second issue in part and overrule it in part.
III. ADMINISTRATOR’S COMPENSATION
By her fourth issue, Arliscia states that the trial court erred because she “was
entitled to executor’s compensation under Texas Estate[s] Code § 352.002.” Specifically,
her arguments attack the second summary judgment, which denied her claim seeking a
declaration that she was entitled to compensation.
In her brief, Arliscia argues that “fact issues remain concerning the validity of the
executor’s fee” because the first motion for summary judgment did not analyze whether
the transactions listed “were intentional or merely inadvertent.” See Burrow v. Arce, 997
S.W.2d 229, 241 (Tex. 1999) (“It would be inequitable for an agent who had performed
extensive services faithfully to be denied all compensation for some slight, inadvertent
misconduct that left the principal unharmed . . . .”). Arliscia cites and relies solely on
Burrow, which is a case dealing with a fee-forfeiture claim in the attorney-client context.
See id. at 232. In Burrow, the Texas Supreme Court noted that
when forfeiture of an attorney’s fee is claimed, a trial court must determine
from the parties whether factual disputes exist that must be decided by a
jury before the court can determine whether a clear and serious violation of
duty has occurred, whether forfeiture is appropriate, and if so, whether all
or only part of the attorney’s fee should be forfeited.
Id. at 246. However, “[i]f the relevant facts are undisputed, these issues may, of course,
be determined by the court as a matter of law.” Id.
15
Here, the relevant facts are undisputed: Arliscia did not comply with the estates
code in administering the estate; she did not file an initial accounting identifying the
estate’s assets; she did not file any accounting for the first sixteen years she served as
administrator; and she did not provide documents verifying the estate funds she
expended. Therefore, the trial court determined that forfeiture of the entire fee was
appropriate as a matter of law. See id. Furthermore, Arliscia does not point to any
authority establishing that malfeasance by an administrator must be intentional in order
to support a fee-forfeiture claim against the administrator. See TEX. EST. CODE ANN.
§§ 352.002(a) (providing that an administrator is entitled to compensation if a court finds
that the administrator took care and managed the estate in compliance with the estates
code), 352.004(a) (providing that a court may deny commission “wholly or in part” to an
administrator if “the court finds that the executor or administrator has not taken care of or
managed the estate prudently”); see also Norman v. Finley, No. 04-01-00394-CV, 2002
WL 341585, at *7 (Tex. App.—San Antonio Mar. 6, 2002, no pet.) (mem. op.) (noting that
“the trial court concluded as a matter of law that [the independent executrix] was not
entitled to a commission” because she had not “taken care of and managed the estate in
compliance with the standards of the Probate Code” and affirming). As such, we reject
this argument.
Arliscia also argues that she “has demonstrated that [Seiler’s] Motion for Partial
Summary Judgment was granted in error because the motion does not conform to the
requirements of Rule 166a that” the motion expressly present the grounds upon which it
is made by addressing or identifying the elements of the cause of action. See McConnell,
858 S.W.2d at 341; Black, 797 S.W.2d at 27. Thus, she argues, the first summary
16
judgment order “cannot support the Second Summary Judgment Order issued on
December 20, 2019.” As previously discussed, Seiler’s motion for partial summary
judgment adequately addressed the necessary elements for her causes of action. See
Parker, 514 S.W.3d at 220; Webb, 590 S.W.3d at 587. We also reject this argument.
We overrule Arliscia’s fourth issue.
IV. CONCLUSION
We reverse the trial court’s summary judgments in part as to the five transactions
challenged by Arliscia totaling $10,800. We otherwise affirm the trial court’s judgments
and remand for further proceedings consistent with this opinion.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
1st day of April, 2021.
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