Woollett v. Matyastik

• Citation: 23 S.W.3d 48
• Decision Date: 17 February 2000
• Docket Number: No. 03-99-00208-CV,03-99-00208-CV
• Parties: (Tex.App.-Austin 2000) Ruth Woollett and Jane Vorwerk, Appellants v. Bill Matyastik, Temporary Guardian of the Estate and Person of Rose Matyastik, Appellee
• Court: Court of Appeals of Texas

Page 48

23 S.W.3d 48 (Tex.App.-Austin 2000)

Ruth Woollett and Jane Vorwerk, Appellants v. Bill Matyastik, Temporary Guardian of the Estate and Person of Rose Matyastik, Appellee

No. 03-99-00208-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

February 17, 2000

Rehearing Overruled March 23, 2000.

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT, NO. 26,003, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

Reversed and Remanded

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

ON MOTION FOR REHEARING

Lee Yeakel, Justice

We withdraw our opinion and judgment of December 23, 1999, and substitute the following opinion.

Bill Matyastik ("Bill"), temporary guardian for Rose Matyastik, filed an application for approval of attorney's fees to be paid from the guardianship estate. The Probate Code allows a guardian to be reimbursed from a guardianship estate for all necessary and reasonable expenses incurred in performing duties as guardian. See Tex. Prob. Code Ann. 666 (West Supp. 2000). The Probate Code also requires such expenses to meet certain proof requirements. See id. 667. Awards of attorney's fees are generally subject to proof requirements. In this case, the district court approved a request for attorney's fees with no evidence submitted in support of the application. We must determine whether the district court, rather than the county court, had jurisdiction to approve the application, and if so, whether the court can authorize payment of attorney's fees from an estate without receiving evidence supporting the request.

On rehearing, appellants raise jurisdictional defects relating to the temporary guardianship appointment.

Factual Background

Bill filed an Application for Appointment of Guardian of the Estate and Person of Rose Matyastik July 7, 1998 in the Milam County Court. On July 20, both appellants filed separate contests to Bill's application. The county court signed an order transferring "this guardianship" to the district court "in accordance with Texas Probate Code 606." On September 1, Bill filed an application to be appointed the temporary guardian of the person and estate of Ms. Matyastik, and also sought a temporary restraining order against appellants. ¹ On the same day, the district court signed a temporary restraining order against appellants, appointed an attorney ad litem for Ms. Matyastik, and appointed Bill the temporary guardian of the person and estate of Ms. Matyastik pending the hearing on the contest of Bill's application to be appointed temporary guardian. Following a hearing on Bill's application, the district court signed an order on September 28 that appointed Bill the temporary guardian, imposed a temporary injunction against appellants, and set a hearing for determining the permanent guardian. ² Among other matters, the order empowered Bill

to expend up to $50,000 of the Ward's estate for the care and maintenance of the Ward, including payment of expenses associated with this guardianship proceeding, without further Court approval. In the event that the Temporary Guardian shall be required to expend more of the Ward's estate than the foregoing $50,000 he shall file a request for such expenditures with this Court and the same shall be considered approved and authorized unless the other parties hereto shall within 10 days file a contest and request for hearing.

The September 28 order became final.

On March 16, 1999, Bill filed an Application for Payment of Expenses seeking $13,543.12 in attorney's fees for "expenses arising from the administration and management" of the estate. The district court signed the order authorizing the expense payment on the same day. In this appeal, appellants, also children of Ms. Matyastik, ³ challenge the district court's jurisdiction to render the March 16 order, and the approval of the application for payment when Bill presented no supporting evidence. ⁴

Jurisdiction

Appellants contend the district court's order authorizing the payment of expenses is void because the district court lacks jurisdiction over the management of the guardianship. ⁵ They contend the county court, not the district court, has continuing jurisdiction over the management of the guardianship. Bill argues that once the contested temporary guardianship matter was transferred to district court, the district court had jurisdiction to hear matters incident to the estate, including the application for expenses.

Section 606(b) provides that all applications, petitions, and motions regarding guardianships ⁶ shall be filed and heard in the county court, "except that in contested guardianship matters, the judge of the county court may on the judge's own motion, or shall on the motion of any party to the proceeding, according to the motion, . . . transfer the contested portion of the proceeding to the district court, which may hear the transferred contested matters as if originally filed in the district court." Tex. Prob. Code Ann. 606(b) (West Supp. 2000). The "county court continues to exercise jurisdiction over the management of the guardianship with the exception of the contested matter until final disposition of the contested matter is made . . . the district court." Id.

In contested matters transferred to district court, "the district court, concurrently with the county court, has the general jurisdiction of a probate court." Id. "A court that exercises original probate jurisdiction has the power to hear all matters incident to an estate." Id. 606(e). Once the contested matter is transferred to district court, the district court exercises original probate jurisdiction over the proceeding. See Weldon v. Hill, 678 S.W.2d 268, 275 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (applying Probate Code section 5(b)). In a proceeding in district court, matters "appertaining to estates" and "incident to an estate" include "all claims by or against a guardianship estate, . . . , and generally all matters relating to the settlement, partition, and distribution of a guardianship estate." Tex. Prob. Code Ann. 607(b) (West Supp. 2000).

In this case, the county court on its own motion transferred the contested application for guardianship of Ms. Matyastik to district court. The district court rendered a series of orders, including one appointing Bill temporary guardian and setting a hearing on the appointment of a permanent guardian. The order appointing Bill temporary guardian gave him the right to expend up to $50,000 for the care and maintenance of Ms. Matyastik. By the March 16 application, Bill sought, as a claim against the estate, $13,534.12 in attorney's fees. The district court exercising its original probate jurisdiction has jurisdiction over a claim against the estate or one seeking a distribution from the estate. See id. 606(e), 607(b). Accordingly, we conclude that the district court had jurisdiction to render the March 16 order. We overrule appellants' first issue.

Approval of Temporary Guardian's Request for Attorney's Fees

Appellants argue that the district court erroneously approved the attorney's fees because the fees: (1) were not solely or exclusively for the use of Ms. Matyastik but were caused by the malfeasance of the temporary guardian and his attorneys, (2) were not supported by any evidence or proof, and (3) did not meet the elements of Probate Code section 667. Bill argues that the order authorizing the $50,000 expenditure "without further Court approval" negates any need for proof since the request was within the $50,000 limit.

According to the Probate Code, "[a] guardian is entitled to be reimbursed from the guardianship estate for all necessary and reasonable expenses incurred in performing any duty as a guardian." Tex. Prob. Code Ann. 666 (West Supp. 2000). Attorney's fees incurred by a guardian may be a necessary and reasonable expense incurred by the guardian in executing his duties as a guardian. See Texas Dep't of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 683 (Tex. App.-Austin 1996, no writ). The Probate Code further provides that "all expenses charged shall be: (1) in writing, showing specifically each item of expense and the date of the expense; (2) verified by affidavit of the guardian; (3) filed with the clerk and entered on the claim docket; and (4) acted on by the court in the same manner as other claims against the guardianship estate." Tex. Prob. Code Ann. 667 (West Supp. 2000).

In addition to the Probate Code requirements regarding expenses, it is well-established that requests for attorney's fees in general must meet certain requirements. An award of attorney's fees should include the hourly rate and the hours expended. Central Tex. Micrographics v. Leal, 908 S.W.2d 292, 299 (Tex. App.-San Antonio 1995, no writ). Expert testimony is required to support an award of attorney's fees. Barrett v. Parchman, 675 S.W.2d 289, 291 (Tex. App.-Dallas 1984, no writ). In Barrett, a temporary administratrix testified regarding the nature of the attorney's services; however, no attorney testified regarding the reasonableness and necessity of the services performed or the reasonableness of the amount requested. Id. Even in a non-jury trial, evidence must be presented on these issues to support an award of attorney's fees. Id. Because the temporary administratrix introduced no probative evidence as to the reasonableness and necessity of the services rendered or the reasonableness of the amount requested, the court concluded that the evidence did not support the award of attorney's fees. Id. at 291-92.

Determining a reasonable attorney's fee is a question of fact and the fee award must be supported by competent evidence. Brown & Root U.S.A., Inc. v. Trevino, 802 S.W.2d 13, 14-15 (Tex. App.- El Paso 1990, no writ) (citing Great Am. Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex. 1966)). A court does not have authority to adjudicate the reasonableness of...