Attorney’s Fees

Kanz v. Hood, 17 S.W.3d 311 (Tex. App.—Waco 2000, pet. denied).


Beneficiary sued Independent Executor complaining that he had neither rendered an accounting nor distributed the estate and sought recovery of his compensation and appointment of a successor executor. Executor claimed that he had resigned from office which thereby closed the estate so the court lacked jurisdiction over Beneficiary’s claims. The trial court determined that Executor had filed a false closing affidavit and appointed a receiver to sell the remaining estate assets. In an earlier unpublished opinion, the appellate court affirmed.

Both Beneficiary and Executor then petitioned the trial court for reimbursement of their attorney’s fees and costs. The court granted Beneficiary’s application but denied Executor’s application. The court also ordered the district clerk to distribute all remaining estate funds held in the registry of the court. Executor appealed.

The appellate court affirmed. The court held that the trial court’s determination that Executor was not entitled to attorney’s fees for defending the removal action was not against the great weight and preponderance of the evidence. The court focused on Probate Code § 149C(c) which authorizes the court to award attorney’s fees, even if the removal action is successful, provided the independent executor’s defense is in good faith. The trial court determined that Executor’s defense of his own gross misconduct and gross mismanagement was not taken in good faith. The appellate court agreed and rejected Executor’s claim that the trial court was required to award attorney’s fees because it did not remove Executor from office and did not make an explicit finding of fact that the defense was in bad faith. The court also rejected Executor’s argument that Garcia v. Garcia, 878 S.W.2d 678, 680 (Tex. App.—Corpus Christi 1994, no writ), held that reimbursement of expenses is mandatory under § 149C(c).

Moral: Independent Executors who defend removal actions are not automatically entitled to their attorney’s fees. To avoid controversy, executors should request a specific finding that their defense was in good faith.