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In re Estate of Erwin

Court of Appeals of Texas, Seventh District, Amarillo

January 18, 2018

IN THE ESTATE OF THOMAS DWAYNE ERWIN, DECEASED

         On Appeal from the County Court of Law No. 2 Randall County, Texas Trial Court No. 2015-210-P; Honorable Ronnie Walker, Presiding

          Before QUINN, C.J., AND CAMPBELL AND PIRTLE, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle, Justice

         Appellant, Eric J. Pullen, appeals from an award of $850 in attorney ad litem fees for his representation of the interests of heirs whose names or locations were unknown in this estate proceeding. On appeal, Pullen asserts the trial court abused its discretion by: (1) failing to award $1, 399.12 in attorney ad litem fees in accordance with an agreement that purportedly complied with Rule 11 of the Texas Rules of Civil Procedure, Tex.R.Civ.P. 11, [1] and (2) reducing his attorney ad litem fees without following or applying any known standard for awarding attorney's fees. We affirm.

         Background

         In May 2015, Thomas Erwin passed intestate leaving behind a sister, Toni Chapman, and two sons, Travis Dwayne Erwin and Michael Scott Erwin. On June 10, 2015, Chapman filed an Application for Letters of Administration, and on June 30, 2015, Travis filed an Application for Independent Administration Pursuant to Texas [Estate] Code § 401.003, or, in the Alternative, for Dependent Administration and Application to Declare Heirship. At the same time, Travis also filed a Motion for Appointment of Attorney Ad Litem pursuant to the applicable provisions of the Texas Estates Code.[2] On July 1, 2015, Pullen was appointed attorney ad litem and he subsequently filed an original answer. On July 22, 2015, the proceeding was transferred from the Randall County Court to the Randall County Court at Law Number 2.

         In September 2015, Pullen filed a report indicating Thomas had two children by marriage who survived him, Michael (forty-eight years of age) and Travis (forty-two years of age). In his report, he represented that he had contacted two independent witnesses who confirmed these facts of heirship.

         On January 13, 2016, a pretrial hearing was held. At the hearing, it appeared Erwin's estate contained approximately $30, 000 in real estate and personal property. The primary issue was whether the estate should reimburse Chapman for the full amount due on her brother's funeral or a lesser amount. The court referred the parties to mediation where they subsequently settled their differences.

         Regarding Pullen's ad litem appointment, the following exchange occurred between the trial court and Pullen:

COURT: Now the ad litem, Mr. Pullen, do you really have a role here? There's no question about unknown heirs, is there?
PULLEN: Correct, Your Honor.
COURT: So you really shouldn't even be involved, should you?
PULLEN: Correct, Your Honor.
COURT: Would you like me to sign an order ...

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