AFFIRM; and Opinion Filed June 6, 2016.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00392-CV

            IN RE THE ESTATE OF DOROTHY N. WILLIAMS, DECEASED

                           On Appeal from the Probate Court No. 2
                                    Dallas County, Texas
                            Trial Court Cause No. PR-09-00212-2

                             MEMORANDUM OPINION
                         Before Justices Fillmore, Stoddart, and Schenck
                                   Opinion by Justice Schenck
       Don D. Ford III, the dependent administrator of the Estate of Dorothy N. Williams,

deceased (“Ford”), applied to the probate court for authorization to pay attorney’s fees and

expenses to his law firm, Ford & Bergner LLP (“Law Firm”), for services rendered to the Estate

totaling $39,591.45. The probate court approved the claim in the amount of $25,097.62, and

directed that it be paid as an expense of administration. Ford appeals, arguing the probate court

abused its discretion by not approving the claim in its entirety. We affirm the trial court’s order.

Because the dispositive issues in this case are settled in law, we issue this memorandum opinion.

TEX. R. APP. P. 47.4.

                           FACTUAL AND PROCEDURAL BACKGROUND

       On March 9, 2012, the probate court appointed Ford as the successor administrator of the

Estate. Ford is himself a licensed attorney who has practiced law since 1997 and is board

certified in estate planning and probate. In his capacity as administrator, Ford managed the
Estate’s assets, paid its debts, and prepared its annual accounts. On November 26, 2014, Ford

filed an Application for Attorney’s Fees (“Application”) requesting authorization to pay the Law

Firm fees and expenses for the period of March 1, 2012, through September 30, 2014, in the

amount of $39,591.45.                     Ford attached to the Application his affidavit attesting to the

reasonableness and necessity of the legal services provided, with itemized billing statements

attached. 1 Two other attorneys provided like affidavits.

           At the hearing on the Application, Ford testified that the Estate posed many unique

challenges which complicated its administration, including owning real property in different

counties, and interference by family members. At the conclusion of the hearing, the judge asked

Ford whether he was seeking a commission or hourly compensation for his services as the

executor. Ford responded that he believed the vast majority of the services he provided were for

legal work, for which he was seeking compensation by the Application. He represented he was

not seeking any compensation as an executor or administrator, but might reconsider his position

if the probate court concluded a significant amount of his time was not compensable as legal

work.

           The court took the matter under advisement and ultimately authorized Ford to pay the

Law Firm fees and expenses in the amount of $25,097.62. Ford filed a motion to reconsider,

which the court denied. Ford did not request findings-of-fact or conclusions-of-law. Ford now

appeals claiming the trial court abused its discretion by failing to award the entire amount of fees

and expenses requested.

                                                              JURISDICTION

           As an initial matter, we must consider whether we have jurisdiction to entertain this


     1
       The billing statements detail a total of 166.5 hours of services performed at an average billing rate of $224.82 an hour and include out-of-
pocket expenses of $2,158.20.



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appeal. Generally, an appeal will only arise from a final judgment. Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001). Except in cases “specially provided by law,” there can only be

“one final judgment” in a case. In re Estate of Washington, 289 S.W.3d 362, 365 (Tex. App.—

Texarkana 2009, pet. denied). However, by their very nature, actions in probate may involve

multiple judgments on “certain discrete issues,” each of which might be a final judgment for the

purpose of appeal. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). The Texas Estates

Code provides that “A final order issued by a probate court is appealable to the court of appeals.”

TEX. ESTATE CODE ANN. § 32.001(c) (West 2014). The order at issue in this case is one

concerning a claim against the Estate. Section 355.057(a) of the estates code provides that a

probate court shall issue an order approving a claim in whole, denying a claim in whole, or

approving a claim in part and disapproving it in part. Id. § 355.057(a). An order entered under

subsection (a) has the effect of a final judgment. Id. § 355.057(b). The estates code further

provides that “a claimant ... who is dissatisfied with the court’s action on a claim may appeal the

action to the court of appeals in the manner other judgments of the county court in probate

matters are appealed.” Id. § 355.058.

          We conclude that the order authorizing the payment of attorney’s fees in the amount of

$25,097.62 constitutes a final and appealable order. See e.g., In re Estate Washington, 289

S.W.3d at 365. Consequently, we have jurisdiction over the issue raised in this case. Cf.

Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex. App.—Houston [14th Dist. 2008, no pet.)

(appellate courts have jurisdiction over probate court order that finally adjudicates a substantial

right).

                                            ANALYSIS

          Ford claims that the court erred in denying a portion of attorney’s fees and expenses

requested. Section 352.051 of the estates code allows a personal representative of an estate to

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recover necessary and reasonable expenses incurred in preserving, safekeeping, and managing

the estate, on proof satisfactory to the court. TEX. ESTATE CODE § 352.051(1) (West 2014).

Because the court’s order does not parcel out the award of fees from the award of expenses, and

because no findings of fact were made in this case, Ford has failed to establish the probate court

denied any of the claimed expenses. Consequently, the denial of claimed expenses is not a basis

for a claim of error on appeal.

       As to attorney’s fees, Texas law does not permit the recovery of attorney’s fees unless

authorized by statute or contract. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002).

Section 352.051 provides that on proof satisfactory to the court, a personal representative of an

estate is entitled to reasonable attorney’s fees necessarily incurred in connection with the

proceedings and management of the estate. TEX. ESTATE CODE § 352.051(2). This necessarily

raises the question of whether an attorney, as an administrator of an estate, may also perform the

legal work and be compensated for his reasonable attorney’s fees. Serving in dual capacities as

attorney and administrator is permissible. See Burton v. Bean, 549 S.W.2d 48, 51 (Tex. Civ.

App.—El Paso 1977, no writ).

       As we previously stated, section 352.051(2) of the estates code provides a basis for the

recovery of attorney’s fees. This is the statute upon which Ford relies in seeking authorization to

pay the Law Firm. Statutes providing that a party “may recover,” “shall be awarded,” or “is

entitled to” attorney’s fees are not discretionary. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.

1998). While section 352.051(2) provides a personal representative “is entitled to” recover

attorney’s fees, it also imposes three limitations on such a recovery. The first is that the fees

must be reasonable. In general, the reasonableness of attorney’s fees, the recovery of which is

authorized by statute, is a question of fact for the fact finder’s determination.       Trevino v.

American Nat’l Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943). The second limitation, that

                                               –4–
the fees must be necessary, is likewise a question of fact. General Motors Corp. v. Bloyed, 916

S.W.2d 949, 961 (Tex. 1996). The remaining limitation is the attorney’s fees must have been

incurred in connection with the proceedings and management of the estate.

       In sum, section 352.051 entrusts attorney’s fee awards to the trial court’s sound

discretion, subject to the requirements that any fees awarded be reasonable and necessary, which

are matters of fact, and to the additional requirement that the fees be incurred in connection with

the proceedings and management of the estate. See Norman v. Finley, No. 04–01–00394–CV,

2002 WL 341585, at *10 (Tex. App.—San Antonio March 6, 2002, no pet.) (We review the

probate court’s decision not to award attorneys’ fees under section 242 (now section 352.051)

and the Declaratory Judgment Act under an abuse of discretion standard).             Therefore, in

reviewing the probate court’s order concerning an attorney’s fee claim under section 352.051(2),

we must determine whether the probate court was entitled to conclude some of the requested fees

were not reasonable and necessary, whether the commingled roles of attorney and administrator

resulted in potential overlap or duplication of activities, or whether some of the requested fees

were not for legal services but for tasks performed by Ford in his capacity as the administrator of

the Estate.

       We cannot conclude that the court abused its discretion in setting the amount of fees as it

did. For example, the record before this Court shows that some of the compensation sought by

the Law Firm was for activities that were administrative in nature, rather than legal. Among

other administrative activities, the Law Firm’s itemized billing statements include entries for

traveling to a bank to set up an Estate bank account, obtaining access to online banking records,

coordinating checks and receipts for each creditor, a telephone call to previous counsel to pick up

checks, telephone calls with the heirs, preparing annual accounts, and communications with real

estate agents concerning the general status of properties. Under these circumstances, the probate

                                               –5–
court was entitled to conclude the Law Firm had charged the Estate for attorney time when the

activity reported had no actual legal significance, and to exclude those charges from the fee

award. Accordingly, we overrule Ford’s issue.

                                        CONCLUSION

       We affirm the probate court’s order on Ford’s Application for Attorney’s Fees.




                                                   /David J. Schenck/
                                                   DAVID J. SCHENCK
                                                   JUSTICE


150392F.P05




                                             –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN RE THE ESTATE OF DOROTHY N.                       On Appeal from the Probate Court No. 2,
WILLIAMS, DECEASED                                   Dallas County, Texas
                                                     Trial Court Cause No. PR-09-00212-2.
No. 05-15-00392-CV         V.                        Opinion delivered by Justice Schenck.
                                                     Justices Fillmore, and Stoddard participating

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee recover its costs of this appeal from Don D. Ford III.


Judgment entered this 6th day of June, 2016.




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