Kirkland v. Schaff
391 S.W.3d 649
| Tex. App. | 2013Background
- Decedent Prentiss Kirkland died intestate on Nov. 1, 2009; survived by wife (appellant) and three adult children (appellees).
- Appellant filed for letters of administration on Sept. 21, 2010; appellees sued in district court Oct. 3, 2010 for declaratory relief over estate interests in real/personal property, including cash, the home, and barrel business assets.
- Probate court appointed appellant administrator Oct. 5, 2010; transfer/consolidation of the district court suit with probate proceeding was granted by agreed order Nov. 3, 2010.
- Bench trial on appellees’ bill of review and motion to remove administrator occurred; on Apr. 4, 2011 the probate court removed appellant as administrator and appointed a successor.
- On May 12, 2011 appellees moved to amend pleadings to include a request for attorney’s fees under section 245; on Jun. 14, 2011 the court granted leave to amend and awarded $15,000 in attorney’s fees against appellant.
- Appellant appeals the trial amendment/fees order and the removal order; the court ultimately reverses the fee award and affirms removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial amendment for attorney’s fees was proper. | Kirkland argues the amendment was untimely after the final removal order. | Kirkland contends the amendment was requested before final judgment and shouldn't be granted post-removal. | Trial amendment and fee award reversed; appellees take nothing on attorney’s fees. |
| Whether removal of the administrator was proper. | Kirkland contends evidence does not support removal for mismanagement. | appellees argue mismanagement and fiduciary breach justify removal. | Removal upheld; evidence supported mismanagement and exposure to IRS liability. |
Key Cases Cited
- Sharifi v. Steen Automotive, LLC, 370 S.W.3d 126 (Tex.App.-Dallas 2012) (attorney’s fees standard and trial amendments context)
- Paul v. Merrill Lynch Trust Co. of Tex., 183 S.W.3d 805 (Tex.App.-Waco 2005) (abuse of discretion standard for attorney’s fees)
- Miller v. Wal-Mart Stores, Inc., 918 S.W.2d 658 (Tex.App.-Amarillo 1996) (trial amendment standard)
- City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750 (Tex.2003) (abuse of discretion standard in probate matters)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001) (final judgments; discrete issues for appeal in probate)
- In re Estate of Miller, 243 S.W.3d 831 (Tex.App.-Dallas 2008) (appeal from order removing estate administrator)
- In re Estate of Washington, 262 S.W.3d 903 (Tex.App.-Texarkana 2008) (appeal from removal order)
- Geeslin v. McElhenney, 788 S.W.2d 683 (Tex.App.-Austin 1990) (no direct but cited in context of probate appeals)
- Swate v. Medina Cmty. Hosp., 966 S.W.2d 693 (Tex.App.-San Antonio 1998) (prayer for attorney’s fees; pleading requirements)
- Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938 (Tex.1990) (amendments and surprise in pleadings)
- Hampden Corp. v. Remark, Inc., 331 S.W.3d 489 (Tex.App.-Dallas 2010) (trial amendment timing; consent)
- Mayhew v. Dealey, 143 S.W.3d 356 (Tex.App.-Dallas 2004) (timing of amendments post-verdict)
- In re Estate of Hawkins, 187 S.W.3d 182 (Tex.App.-Fort Worth 2006) (estate pleadings and accounting)
- In re Estate of Clark, 198 S.W.3d 273 (Tex.App.-Dallas 2006) (evidentiary sufficiency in removal case)