Estate of Ortiz, In re
| Decision Date | 29 August 1991 |
| Docket Number | No. 13-90-357-CV,13-90-357-CV |
| Citation | 815 S.W.2d 858 |
| Court | Texas Court of Appeals |
| Parties | In re ESTATE of Augustin Villafuerte ORTIZ, Deceased, Appellant. |
Frank E. Weathered, Corpus Christi, for appellant.
Rudolfo Davila, Victoria, pro se.
Before SEERDEN, KENNEDY and DORSEY, JJ.
Monico Ortiz Gutierrez and Arcadia Villafuerte Gonzales, beneficiaries and heirs of the Estate of Augustin Villafuerte Ortiz, deceased, acting by and through their attorney in fact, Alicia Abdala y Matuk ("Beneficiaries") appeal a probate court's order approving the Estate's payment of claims to Arturo Funeral Chapels ("Funeral Home") and Rudolfo G. Davila, an attorney. The Beneficiaries challenge the legal and factual sufficiency of the evidence to support the trial court's findings that the payment of these claims was just and reasonable. We affirm the trial court's judgment.
The decedent was killed in an automobile accident in Victoria County, Texas, on December 2, 1989. He was a Mexican citizen and his heirs are his parents, Mexican citizens who reside in Mexico. He was taken to DeTar Hospital and treated unsuccessfully by Dr. Del Williams. The Funeral Home retrieved decedent's body from the hospital and, through telephone calls to the Beneficiaries in Mexico, handled the funeral arrangements. By the end of December 1989, the Beneficiaries had arranged to have as their attorney in fact Alicia Abdala, the Mexican Consular in Corpus Christi. She, in turn, hired attorney Tony Bonilla to represent the Beneficiaries.
On January 29, 1990, pursuant to TEX.PROBATE CODE ANN. § 131A (Vernon Supp.1991), but without written notice to the Beneficiaries, the probate court appointed Hildo Luera, the director of the Funeral Home, as the temporary administrator of the Estate. Pursuant to the power granted him under the trial court's order, Luera subsequently applied to the court for approval of a contract with attorney Rudolfo G. Davila, in which Davila was to represent the Estate in recovering damages resulting from Ortiz's death. Pursuant to the terms of the contract, Luera, as the administrator of the Estate, agreed to assign Davila 25% interest in the property to be recovered by the Estate, which at that time, was expected to be insurance proceeds from one of the insurance carriers for one of the drivers involved in the automobile collision. The court approved Luera's contract on behalf of the Estate with Davila as being in accordance with TEX.PROBATE CODE ANN. § 233 (Vernon 1980).
In early March 1990, the court approved the Estate's inventory of property and appraised values and a list of the claims against the Estate filed by Luera. The only property of the Estate was "Insurance Payable to Estate," and it was appraised as having an unknown value. The only listed claim against the Estate was by the Funeral Home and was for $4,304.00.
On May 17, 1990, in Victoria County, Luera, pursuant to his powers as temporary administrator, signed a full release and indemnity agreement with the insurance company for one of the drivers involved in the collision in exchange for $25,000.00 being released to the registry of the court. Davila also signed the release on behalf of the Estate. A similar release and indemnity agreement was signed by Abdala, on behalf of the Beneficiaries, and Bonilla.
Several days later, Abdala, acting again on behalf of the Beneficiaries, filed an application on behalf of the Beneficiaries for the proceeds of the Estate, noting in the application that Bonilla had requested that the creditors reduce their bills. On May 21, 1990, the court granted Luera's motion to make him the permanent administrator of the Estate. On the same day, the court entered an order that the $25,000.00 was to be deposited in the court's registry and that no withdrawals were to be made without prior written order of the court.
Subsequently, acting as permanent administrator, Luera filed an application for authority to settle certain specific claims against the Estate brought by Dr. Del Williams and DeTar Hospital for $3,725.00 and $5,398.62, respectively. 1 On June 13, 1990, after a hearing, the court entered a written order that the claims of Dr. Williams and DeTar Hospital, as well as those of the Funeral Home and attorney Davila, be paid. Pursuant to the order, the Funeral Home was to be paid $3,395.00 and Davila was to be paid $6,250.00. 2 The payments to the Funeral Home and Davila were strongly contested at the hearing.
On June 20, 1990, Abdala, as representative of the deceased's parents, asked for a rehearing on the order setting out the payment of claims. The court considered this motion as a motion for new trial and denied it.
On July 19, 1990, pursuant to Abdala's timely request, the trial court entered findings of fact and conclusions of law. Included in the findings of fact was a finding that the claim in favor of the Funeral Home was just and reasonable for the amount of $3,395.00 and all legal offsets, payments and credits were allowed. Also included was a finding that the claim of attorney's fees of $6,250.00 in favor of Davila represents 25% of the property recovered by the estate and is in accordance with the employment contract approved by the court. On appeal, the Beneficiaries challenge the factual and legal sufficiency of these two findings.
Appellate courts review a trial court's findings of fact by the same standards used to review the sufficiency of the evidence to support a jury's findings. Nelson v. Dallas Indep. School Dist., 774 S.W.2d 380, 382 (Tex.App.-Dallas 1989, writ denied); Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.). In reviewing an attack on the legal sufficiency of the evidence or a "no evidence" point, we consider only the evidence and reasonable inferences that tend to support the jury findings, and disregard all evidence and inferences to the contrary. Preferred Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67, 68 (Tex.1989); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); Transfer Prod., Inc. v. TexPar Energy, Inc., 788 S.W.2d 713, 715 (Tex.App.-Corpus Christi 1990, no writ). We view the evidence and reasonable inferences from it in the light most favorable to the findings. Preferred Heating, 778 S.W.2d at 68; Transfer Prod., 788 S.W.2d at 715. If any evidence of probative force supports the finding, we must overrule the point and uphold the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).
In reviewing an attack on the factual sufficiency of the evidence, we consider, weigh, and examine all of the evidence which supports and which is contrary to the jury's determination. PlasTex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex.1989). Having done so, this court should set aside the verdict only if the evidence standing alone is too weak to support the finding, or the answer is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951). In this regard, Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) requires a court of appeals to detail the relevant evidence in its opinion and state how the factfinder's decision is so against the great weight and preponderance of the evidence as to be manifestly unjust and in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Pool, 715 S.W.2d at 635.
Factfinding is the exclusive province of the trial court. An appellate court cannot make factual findings, it can only "unfind" facts. Texas Nat'l Bank v. Karnes, 717 S.W.2d 901 (Tex.1986); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex.1986). If an appellate court sustains a point of error finding the evidence factually insufficient, it must remand for a new trial....
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