Brown v. Traylor, 01-04-01091-CV.

CourtCourt of Appeals of Texas
Writing for the CourtTim Taft
Citation210 S.W.3d 648
PartiesGeorge C. BROWN, Appellant, v. Lucy TRAYLOR, Darryl Keith Walker, Paul Wayne Walker, Anthony C. Walker, Terry L. Walker, and James E. Walker, Appellees.
Docket NumberNo. 01-04-01091-CV.,01-04-01091-CV.
Decision Date27 April 2006
210 S.W.3d 648
George C. BROWN, Appellant,
Lucy TRAYLOR, Darryl Keith Walker, Paul Wayne Walker, Anthony C. Walker, Terry L. Walker, and James E. Walker, Appellees.
No. 01-04-01091-CV.
Court of Appeals of Texas, Houston (1st Dist.).
April 27, 2006.
Supplemental Opinion on Denial of Rehearing November 2, 2006.

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E. John Gorman, Houston, for appellant.

Freddie N. Jackson, Law Office of Freddie N. Jackson, Frank J. Ross, Houston, for appellees.

Panel consists of Justices TAFT, HIGLEY, and BLAND.


TIM TAFT, Justice.

Appellant, George C. Brown ("George"), appeals from a judgment, rendered upon a jury verdict, probating what the jury concluded was a true and correct copy of the will of his father, Henry Brown ("Henry"), deceased. We determine whether (1) legally sufficient evidence supported the jury's award of attorney's fees to appellee Lucy Traylor ("Traylor"), who was appointed administrator of Henry's estate; (2) the trial court erred in refusing a jury instruction stating that a testator must publish the will to the subscribing witnesses; (3) George waived all but one of his legal-sufficiency challenges; (4) the evidence was factually sufficient to support various express and implicit jury findings; and (5) we have jurisdiction over George's appellate complaints concerning a post-judgment order appointing a substitute administrator when no appeal was perfected from that order. We affirm the judgment in part, reverse it in part with respect to the award of attorney's fees, and remand the cause for a determination of matters relating to attorney's fees.


George was Henry's son. Traylor was a long-time friend of Henry and his wife. Henry died on April 15, 2001 at the age of 81. On June 20, 2001, George filed an application to determine heirship, alleging that Henry had died intestate. In response, on October 11, 2001, Traylor filed an opposition to George's application, and she simultaneously moved the trial court

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to order George to file Henry's original will, which she alleged that Henry had executed on March 13, 1999. When the original will could not be located, Traylor filed, on February 5, 2002, a verified application to probate a copy of the March 13, 1999 will ("the will copy"). On April 19, 2002, George filed an opposition to Traylor's probate application and counter-sued Traylor and her daughter, Pamela Ann Yancy ("Yancy") — the notary public who had drafted the March 13, 1999 will — for civil conspiracy to commit forgery and fraud, based on their filing what he claimed was a forged copy of the will, seeking actual and exemplary damages.

The jury found that (1) Henry had testamentary capacity on March 13, 1999; (2) Henry signed the March 13, 1999 will; (3) Melva Collins ("Collins"),1 Wanda Walker ("Wanda"),2 Darryl Keith Walker ("Darryl"),3 and Yancy each "subscribed his or her name in his or her own handwriting to the [March 13, 1999 will] while in the presence of Henry Brown at a time when he or she was above the age of 14 years"; (4) the will copy was not forged;4 (5) Henry did not revoke the March 13, 1999 will; (6) the will copy was a true and correct copy of Henry's March 13, 1999 will;5 (7) Traylor acted in good faith and with just cause in defending the March 13, 1999 will;6 and (8) Traylor's reasonable and necessary attorney's fees incurred in trying to probate the will were $20,000. Based on the jury's findings, the trial court admitted the will copy to probate, rendered a take-nothing judgment on George's claims against Traylor and Yancy, appointed Traylor to be dependent administratrix with will annexed of Henry's estate, and awarded Traylor $20,000 in attorney's fees. George moved for new trial, which was denied by operation of law.

Traylor's Attorney's Fees

In answering jury question seven, the jury expressly found that Traylor acted in good faith and with just cause in defending the March 13, 1999 will for the purpose of having it admitted to probate. In answering jury question eight, the jury found that that $20,000 would fairly and reasonably compensate her for the necessary legal services rendered in trying to probate the will. The instruction accompanying jury question eight provided that

in ascertaining the reasonable value of services of an attorney, you may take into consideration the time and labor required; the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; and the experience, reputation and ability of the lawyer or lawyers performing the services.

See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (TEX. STATE BAR R. art. X, § 9) (establishing similar, but also additional, criteria to be considered in determination of reasonableness of attorney's fees).

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In issue seven, George argues that the trial court abused its discretion in overruling his objection to the admission of Traylor exhibits 10 and 14 — fee statements that she offered as evidence of her attorney's fees — because those exhibits were offered through Traylor, who was not an expert. George argues that this error was harmful because "there was no other evidence to support the jury's answer" to the jury question concerning the amount of attorney's fees. Under a liberal construction of his issue seven,7 George alternatively argues that (1) even if these two exhibits were properly admitted, they were legally insufficient to support the award of attorney's fees because they could not substitute for the expert testimony required to prove up the amount of attorney's fees and (2) Traylor produced no expert testimony proving up the amount of her fees. We understand George's legal-sufficiency challenge to attack only the jury's finding on question eight, not question seven.

1. The Law

When any person designated as executor in a will or an alleged will, or as administrator with the will or alleged will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will or alleged will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in such proceedings.

TEX. PROB.CODE ANN. § 243 (Vernon 2003). "Expert testimony is required to support an award of attorney's fees." Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex.App.-Austin 2000, pet. denied) (so holding in context of attorney's fees awarded to guardian in guardianship proceeding); Barrett v. Parchman, 675 S.W.2d 289, 291-92 (Tex.App.-Dallas 1984, no writ) (sustaining no-evidence challenge to attorney's fees awarded to temporary administratrix of estate when no expert testimony supported fee award and when only evidence of reasonableness and necessity of fees was administratrix's testimony).

2. Standards of Review

Addressing George's primary argument under issue seven, we review the admission of evidence for abuse of discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005).

George's alternative argument under issue seven requires us to conduct a legal-sufficiency review, in which "we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). However, "[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. . . . [L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

The jury is the sole judge of witnesses' credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. Id. at 819. Because it is the jury's province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance

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with their verdict if reasonable human beings could do so. Id.

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which he did not have the burden of proof, the appellant must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). Such a no-evidence challenge will be sustained when "`(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

3. Admission of the Fee Statements

George objected to only exhibit 10, not to exhibit 14. He thus waived his challenge to the admission of exhibit 14.8 See TEX.R.APP. P. 33.1(a)(1). His failure to object to exhibit 14, however, does not render harmless the admission of exhibit 10 (assuming that it was error to admit exhibit 10). Exhibit 14 was a supplement to the billing statement (exhibit 10) previously admitted into evidence; it was not merely the same evidence offered a second time, and exhibit 14 documented only $7,087.50 in fees. Therefore, the admission of Exhibit 14 did not render harmless the fee information contained in exhibit 10, assuming without deciding...

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