In re Estate of Miller
| Citation | 243 S.W.3d 831 |
| Decision Date | 09 January 2008 |
| Docket Number | No. 05-06-01471-CV.,05-06-01471-CV. |
| Parties | In the ESTATE OF Garcia Talmadge MILLER, Deceased. |
| Court | Court of Appeals of Texas |
Jasper C. Rowe, J.D., Law Offices of Jasper C. Rowe, Irving, TX, for Appellant.
John P. Polewski, Esq., Polewski & Associates, DeSoto, TX, for Appellee.
Before Justices MOSELEY, LANG, and MAZZANT.
Jasper C. Rowe appeals from an August 1, 2006 order removing him as independent executor for the Estate of Garcia Talmadge Miller and ordering him to reimburse the estate for amounts paid by the estate to him as "attorney's fees." In five issues, Rowe argues the probate court erred when it: (1) excluded evidence which he claims would corroborate the existence of the oral instructions from the testator that Rowe take a one-third fee from the proceeds of the estate; (2) failed to enforce the contracts which authorized the compensation for his legal services; (3) found grounds to remove Rowe as independent executor; (4) interfered with his discretionary powers as independent executor to administer the estate in accordance with the wishes of the testator; and (5) exceeded its jurisdiction in entering an order for reimbursement of fees from him as the attorney for the independent executor when the action was against him in his capacity as independent executor.
Madison Miller responds that the probate court did not err because: (1) the exclusion of evidence was proper under the Statute of Frauds and Rowe failed to properly make a bill of exceptions; (2) the alleged contracts were unenforceable and Rowe failed to make a claim against the estate for payment; (3) the evidence is legally sufficient to support the probate court's findings that Rowe had grossly mismanaged and embezzled from the estate; (4) the Probate Code expressly empowers the probate court to remove the independent executor when there is a finding of gross mismanagement; and (5) the probate court was within' its powers to order Rowe to return the money because it has the power to do what is necessary to protect the estate from mismanagement or unauthorized dissipation.
We decide against Rowe on all issues. The probate courts order of removal is affirmed.
The testator, Garcia Talmadge Miller, died in Dallas County, Texas on October 9, 2002 at the age of 101 years old. He left a will dated August 6, 1985. Jasper C. Rowe, the grandnephew of the testator, was named independent executor under the will. On October 26, 2002, before the will was admitted to probate, Rowe, purportedly acting in his professional capacity as an attorney, entered into an "informational agreement" with the primary beneficiary of the estate, Madison Miller. This "informational agreement," in the form of a letter, purported to set forth "terms" of representation "in order to Enable Transfer of Estate to Heirs, ASAP." This letter informed Madison Miller of Rowe's hourly rate and "that at the exclusive option of this office, payment may be determined to be paid on a contingent fee basis." The letter includes a description of the contingent fee to be a "total legal fee of 1/3 (onethird) of the value of the claim ... if the case is settled before suit is filed" and was signed by Madison Miller on a signature line over which was typed "acknowledged and agreed to," as "Heir of Estate," for the "Estate of Lucy and Garcia T. Miller." Rowe admits that at the time of this letter, Madison Miller had no legal authority to bind the estate in this agreement.
On the same day as the letter to Madison Miller, Rowe, purportedly acting in his professional capacity as an attorney, wrote a letter to himself as "Proposed Independent Executor." This second letter contains virtually identical language to the one prepared for Madison Miller except that, in this letter, the paragraph outlining the fee structure is presented in boldface type. However, this second letter was different from the letter to Madison Miller in at least three respects. First, Rowe's letter to himself noted that "the estate does not have sufficient liquid assets to pay an hourly amount" and outlined a "total legal fee of 1/3 (one-third) of the value of the estate ... if the estate is settled when the initial suit is filed." Second, he wrote "a fee of 4/10 will be due if the administration is settled or concluded after suit for administration is filed and if further litigation is necessary for the administration of the estate." Third, in this letter, Rowe also claimed a lien on real or personal estate property to guarantee the payment of attorney's fees.
After the probate proceeding was commenced, Rowe was appointed by the probate court as independent executor without bond on January 6, 2003. Also on that day, Rowe wrote himself another letter to "ratify" the earlier "engagement letter" hiring himself as the attorney for the estate. The will was ordered admitted into probate and was not challenged. The will did not provide for Rowe to receive a fee for his services, nor did it identify Rowe as a beneficiary. The Inventory and Appraisement was filed by Rowe on August 13, 2004, over one year and seven months after he was appointed independent executor. The Inventory was approved by the probate court on September 1, 2004, but only as to assets. Subsequently, Rowe sold two parcels of the estate's real property, paid himself nearly $100,000, and attempted to sell the last remaining piece of real estate.
On April 12, 2006, Madison Miller, the primary beneficiary of the estate, filed an ancillary action in the probate court to remove Rowe as independent executor, alleging Rowe was guilty of gross mismanagement of the estate, and requested the probate court appoint a successor. Rowe filed an answer in the capacity of independent executor contesting the action and arguing Madison Miller was estopped from filing the action. The probate court heard evidence respecting Miller's motion on three different occasions.
During the hearing, Rowe testified the testator gave him explicit oral instructions that, after his death, Rowe should sell all real estate holdings in the estate. Rowe testified the testator instructed him to hire himself as attorney for the executor of the estate. Also, Rowe testified he was instructed to use the proceeds from the sale of real estate to pay himself one-third of the value of the estate as compensation for his services, before distributing the proceeds to the beneficiaries. Rowe claimed these instructions had been written, but the writing was lost. Additionally, Rowe offered the testimony of Pamela Atchison, the testator's grandniece, regarding statements allegedly made by the testator before his death about how he wanted his estate to be administered. Madison Miller objected to. Rowe's questions on multiple grounds. The probate court sustained the objections and excluded Atchison's testimony regarding the testator's statements. However, Atchison was allowed to testify that there were written instructions from the testator, these written instructions were last seen when the testator put them in his safe several years prior to his death, and were not found after the testator's death. However, after sustaining. Madison Miller's hearsay objection, the probate court did not allow testimony on the content of these written instructions.
The record reflects Rowe paid himself nearly $100,000 in legal fees before paying any beneficiaries. Madison Miller presented unrebutted expert testimony that all probate work could have been performed in a period of six months or less at a cost of no more than $5,000. Additional evidence showed that Rowe failed to pay property taxes or correct code compliance violations on the real estate after receiving notices from the city. Accordingly, the estate was charged penalties and the only remaining property in the estate was scheduled for foreclosure due to non-payment of property taxes. Other evidence admitted in the record reflected Rowe lent $25,000 of the estate's money to one of his own clients. The loan was not documented. Accordingly, there was no due date for repayment by the client, no agreement to pay interest, and no collateral was provided to secure payment. Rowe had not attempted to collect any payments on this loan at the time of the hearing.
After hearing the evidence, the probate court signed an order removing Rowe as independent executor. Rowe filed a motion for new trial and included affidavits setting out what he and his corroborating witness would have testified to in court, had they been allowed, regarding the statements made by the testator prior to his death. The motion for new trial was overruled and this appeal followed.
In issue one, Rowe argues the probate court erred in excluding evidence which he claims would corroborate the existence of the oral instructions from the testator that Rowe should take a legal fee of one-third of the proceeds of the estate. Madison Miller responds that the evidence was excluded under the Statute of Frauds and, because appellant failed to make a bill of exceptions, he did not preserve the issue for appeal.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001); City of Brownsville v. Alvarado, $97 S.W.2d 750, 753 (Tex.1995). The trial court's evidentiary ruling will be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985). Under an abuse of discretion review, an appellate court is not free to substitute its own judgment for the trial court's judgment. Bowie Mem'l Hosp. v....
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