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Estate of Pharris

Court of Appeals of Texas, Tenth District

July 3, 2019

ESTATE OF MIRIAM MAE PHARRIS, DECEASED

          From the County Court Hill County, Texas Trial Court No. 14, 170

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          JOHN E. NEILL JUSTICE

         In eight issues, appellant, Kathy Roux, challenges various decisions made by the trial court in favor of appellees, Dennis Pharris and Don D. Ford III dependent administrator of the estate of Miriam Mae Pharris, pertaining to the estate of Pharris. Because we cannot conclude that the trial court abused its discretion in this matter, we affirm.

         I. Background

         Roux filed several motions to substitute as counsel for Dennis Pharris, an alleged beneficiary of the Pharris estate, with the latest motion signed by all relevant parties and filed on September 1, 2016. The trial court granted Roux's motion on September 2, 2016, thereby substituting Roux as Dennis's counsel. On September 12, 2016, Roux filed a motion to withdraw as counsel for Dennis. The trial court granted Roux's motion to withdraw on September 13, 2016.

         Thereafter, on December 5, 2016, Roux filed an application for payment of attorney's fees, asserting that "she has rendered necessary and reasonable legal services on behalf of the Estate of MIRIAM MAE PHARRIS, Deceased . . . ." Accordingly, Roux requested $5, 063.47 in attorney's fees from the estate.

         On December 6, 2016, Ford, as dependent administrator of the estate, filed an objection to Roux's application for attorney's fees, arguing, among other things, that Roux did not provide legal services on behalf of the estate; rather, she provided legal services for Dennis, a person allegedly interested in the estate. As such, Ford contended that Roux should seek compensation from Dennis, not the estate.

         Roux responded to Ford's objection, noting that she is entitled to attorney's fees from the estate under section 351.003 of the Estates Code and section 37.009 of the Civil Practice and Remedies Code because she was representing Dennis in his attempt to secure the removal of Ford as administrator of the estate. See Tex. Estates Code Ann. § 351.003 (West 2014); see also Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2015). On December 16, 2016, Roux also filed an "Application for Emergency Intervention Regarding Funeral and Burial Expenses," arguing that emergency intervention of the trial court is necessary because the decedent's funeral and burial expenses were paid by Wayne Knorr, who was not reimbursed by Ford as administrator of the estate. Roux sought $15, 026 from the estate to reimburse Knorr, as well as her attorney's fees.[1]

         On March 24, 2017, Ford, as dependent administrator of the estate, filed a motion for sanctions against Roux for bringing numerous frivolous pleadings in this case. Ford argued that Roux filed her application for attorney's fees on her own behalf, not on behalf of Dennis, and that she did not render necessary and reasonable legal services on behalf of the estate. Ford also argued that Roux is not entitled to any attorney's fees because she never filed any pleading seeking relief under section 351.003 of the Estates Code or a declaratory judgment under section 37.009 of the Civil Practice and Remedies Code. See Tex. Estates Code Ann. § 351.003; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.009. Finally, Ford asserted that Roux's application for emergency intervention was improper because she did not enter an appearance on behalf of Knorr or purport to represent him in this proceeding. In fact, Kara Pratt represented Knorr in presenting his claim. Given the foregoing, Ford sought $2, 500 in sanctions and $7, 500 in attorney's fees under Texas Rules of Civil Procedure 10 and 13, as well as sections 9.011, 10.001, and 10.002 of the Civil Practice and Remedies Code. See Tex. R. Civ. P. 10, 13; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011, 10.001-.002 (West 2017).

         After a hearing, the trial court entered an order of sanctions against Roux on May 4, 2017. In its sanctions order, the trial court granted Ford's motion and found that "a sanction of $6, 800 in attorney's fees that the Administrator incurred in responding to Roux's filings and in bringing this Motion, and that such amount is just and not excessive" and that an additional sanction of $2, 500 is "proper and necessary to deter such conduct in the future, and that such amount is just and not excessive." This appeal followed.

         II. Findings of Fact and Conclusions of Law

         In her seventh issue, Roux contends that the trial court's failure to give her notice of findings of fact and conclusions of law prejudiced her and caused her harm. We disagree.

         On May 4, 2017, the trial court entered its sanctions order in this case. Roux filed her request for findings of fact and conclusions of law eight days later on May 11, 2017. See Tex. R. Civ. P. 296 (noting that a request for findings of fact and conclusions of law should be filed within twenty days after the judgment is signed). Roux's request for findings of fact and conclusions of law contains a "REJECTED" stamp where the trial court was supposed to sign.

         In light of the "REJECTED" stamp, Roux filed an amended request for findings of fact and conclusions of law on May 24, 2017. On the same day, the trial court filed a letter with the District Clerk acknowledging Roux's request for findings of fact and conclusions of law and directing Ford to draft proposed findings of fact and conclusions of law "so that the Court may review, possibly adopt[, ] or add to the same." Ford filed proposed findings of fact and conclusions of law on June 7, 2017, which were not adopted or signed by the trial court.

         Because the trial court had not yet entered findings of fact and conclusions of law, Roux filed a notice of past due findings of fact and conclusions of law on June 12, 2017. Thereafter, on August 2, 2017, Roux filed her notice of appeal in this case. On October 12, 2017, the trial court entered its findings of fact and conclusions of law. See id. at R. 297 ("The court shall file its findings of fact and conclusions of law within twenty days after a timely request is made."). Roux filed her appellant's brief on March 23, 2018, after obtaining a copy of the Clerk's Record on February 15, 2018.

         The Rules of Civil Procedure do not preclude a trial court from issuing belated findings. See Robles v. Robles, 965 S.W.2d 605, 610 (Tex. App.-Houston [1st Dist.] 1998, pet. denied); see also United Heritage Corp. v. Black Sea Invs., Ltd., No. 10-03-00139-CV, 2005 Tex.App. LEXIS 1280, at *13 (Tex. App.-Waco Feb. 16, 2005, no pet.) (mem. op.).

Unless they can show injury, litigants have no remedy if a trial court files untimely findings. . . . Injury may be in one of two forms: (1) the litigant was unable to request additional findings, or (2) the litigant was prevented from presenting his appeal. . . . If injury is shown, the appellate court may abate the appeal so as to give the appellant the opportunity to request additional or amended findings in accordance with the rules.

Robles, 965 S.W.2d at 610; see Beard v. Beard, 49 S.W.3d 40, 52 (Tex. App.-Waco 2001, pet. denied) (noting that a party suffers an injury from a refusal to file findings of fact and conclusions of law "when the circumstances of the case require her to guess the reason or reasons the court ruled against her"). A trial court may file additional findings even after it loses plenary power to affect the judgment. Robles, 965 S.W.2d at 611. The failure to request additional findings and conclusions constitutes a waiver on appeal of the trial court's lack of such findings and conclusions. Id.

         Based on our review of the record, we are not convinced that Roux suffered harm by the untimely entry of findings of fact and conclusions of law in this case. First, the findings of fact and conclusions of law articulate the reasons for the trial court's sanctions order, thereby undermining any argument that Roux would have to guess the reason or reasons the court ruled against her. See Beard, 49 S.W.3d at 52. Additionally, Roux admitted that she discovered the untimely findings of fact and conclusions of law when she requested the Clerk's Record on February 15, 2018. She had more than a month to prepare her brief in this matter, which negates any argument that she was unable to adequately present her case to this Court. See Horizon Props. Corp. v. Martinez, 513 S.W.2d 264, 266 (Tex. Civ. App.-El Paso 1974, writ ref'd n.r.e.) ("In any event, the law is well settled that reversible error is not presented where the findings of fact and conclusions of law are signed and filed in time to be included in the transcript on appeal and the appellant is not prevented from making a proper presentation of his case on appeal . . . .").

         To the extent the Roux asserts that she was harmed by an inability to request additional findings of fact and conclusions of law, we note that, when she obtained the Clerk's Record and discovered the findings of fact and conclusions of law, Roux did not request that this Court abate the appeal and remand the case to the trial court with instructions to prepare additional findings of fact and conclusions of law. The failure of Roux to take this action waives any complaint about her inability to request additional findings of fact and conclusions of law. See Robles, 965 S.W.2d at 611. Accordingly, we overrule Roux's seventh issue.

         III. Roux's Application for Attorney's Fees and her Purported ...


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