AFFIRMED; Opinion Filed November 13, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01130-CV

                                SUSAN E. JONES, Appellant
                                           V.
                                 KAREN COYLE, Appellee

                          On Appeal from the Probate Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. PR-11-01594-1

                                         OPINION
                           Before Justices Bridges, Lang, and Evans
                                   Opinion by Justice Evans
       Appellant Susan E. Jones appeals the probate court’s denial of a motion requesting that

her attorneys’ fees be assessed against appellee Susan Coyle. Appellant asserts that it was error

for the probate court not to award attorneys’ fees against the party who wrongfully withheld

property of the estate. We affirm.

                                       BACKGROUND

        Following the death of Frances Hutchins, appellant was appointed independent

executrix of the estate. Appellee, a beneficiary under the will of Frances Hutchins, was in

possession of the decedent’s car, diamond bracelet, and various other personal items. Appellant

demanded the return of the decedent’s property to the estate but appellee refused to do so.

Appellant filed various motions seeking turnover, obtained an unfavorable order, and pursued a

successful petition for writ of mandamus to us for which appellant incurred approximately
$27,000.00 in attorneys’ fees. In the probate court, appellant argued that she was entitled to

recover these attorneys’ fees from appellee based on section 242 of the former probate code now

recodified at section 352.051 of the estate code effective after the proceedings in the trial court.

The probate court declined to award appellant her attorneys’ fees from appellee and she filed this

appeal.

                                            ANALYSIS

          Appellant argues that the probate court improperly denied appellant’s recovery of

attorneys’ fees and expenses from appellee. We disagree and hold that the trial court did not

have the discretion to hold appellee responsible for appellant’s attorneys’ fees.

          Section 242 of the former probate code provided as follows at the time of the trial court

proceedings:

          Personal representatives of estates shall also be entitled to all necessary and
          reasonable expenses incurred by them in the preservation, safekeeping, and
          management of the estate, and in collecting or attempting to collect claims or
          debts, and in recovering or attempting to recover property to which the estate has
          a title or claim, and all reasonable attorneys’ fees, necessarily incurred in
          connection with the proceedings and management of such estate, on satisfactory
          proof to the court.

Act of March 17, 1955, 54th Leg., R.S., ch. 55, 1955 Tex. Gen. Laws 161, repealed by Act of

May 26, 2009, 81st Leg., R.S., ch. 680, § 1, 2009 Tex. Gen. Laws 1650. Appellant argues that it

was error for the probate court not to assess attorneys’ fees against the person who improperly

withheld the property from the estate.       According to appellant, appellee should have been

ordered to pay appellant’s attorneys’ fees pursuant to section 242 because appellant was the

prevailing party and appellee improperly withheld the estate’s property. Appellee, however,

argues that section 242 does not authorize the probate court to order appellee to pay appellant’s

attorneys’ fees. Instead, appellee argues that executors are entitled to seek recovery of their

attorneys’ fees and expenses from the estate.

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        Appellee is correct that Texas has long followed the “American Rule” which prohibits

fee awards unless specifically authorized by contract or statute.                  See MBM Fin. Corp. v.

Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009); Tony Gullo Motors I, L.P. v.

Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006) (“For more than a century, Texas law has not

allowed recovery of attorney’s fees unless authorized by statute or contract. This rule is so

venerable and ubiquitous in American courts that it is known as ‘the American Rule.’ Absent a

contract or statute, trial courts do not have inherent authority to require a losing party to pay the

prevailing party’s fees.”). Appellant has not cited any precedent for her interpretation of section

242, nor were we able to locate any such precedent. 1 Accordingly, we examine section 242 to

determine whether it authorizes fee shifting from appellant to appellee.

        We review statutory construction de novo when the resolution of an issue requires us to

construe statutory language. See Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 412

(Tex. App.—Waco 2010, pet. denied). We conduct our analysis as follows:

        The meaning of a statute is a legal question, which we review de novo to ascertain
        and give effect to the Legislature’s intent. Where text is clear, text is
        determinative of that intent. This general rule applies unless enforcing the plain
        language of the statute as written would produce absurd results. Therefore, our
        practice when construing a statute is to recognize that “the words [the Legislature]
        chooses should be the surest guide to legislative intent.” Only when those words
        are ambiguous do we “resort to rules of construction or extrinsic aids.”




    1
       Although the issue of recovery of attorney’s fees from an adverse party has not been addressed by a Texas
court, Texas courts have discussed when administrators and personal representatives may seek to recover attorneys’
fees from the estate funds. See Dumitrov v. Hitt, 601 S.W.2d 472, 473 (Tex. App.—Houston [14th Dist.] 1980, writ
ref’d n.r.e.) (analyzing whether attorneys’ fees incurred by former administrator in defending the removal action
expenses of administration were properly reimbursable from estate funds); Pouncy v. Garner, 626 S.W.2d 337, 345
(Tex. App.—Tyler 1981, writ ref’d n.r.e.) (declining an expenditure of estate funds for administrator’s legal fees
because there was no segregation of expenses incurred by administrator for his individual benefit and that of the
estate); In re Estate of Bessire, 399 S.W.3d 642, 650 (Tex. App.—Amarillo 2013, pet. denied) (“when the personal
representative’s own omission or malfeasance is at the root of the litigation, the estate will not be required to
reimburse the personal representative for his attorney’s fees.”) (emphasis added).


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Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citations omitted).

Once we determine the proper construction of the statute, we determine whether the trial court

properly applied the statute using the applicable standard of review. Generally, challenges to the

reasonableness and necessity of attorneys’ fees may involve standards applicable to factual

determinations but challenges to the equity or justice of attorneys’ fees may involve standards

applicable to judicial discretion.      See Hall, W. Wendell, Rodriguez, O. Rey, Kanusky,

Rosemarie, and Emery, Mark, Hall’s Standards of Review in Texas, 42 ST. MARY’S L.J. 1, 212

(2010). Neither party cited nor did we find any authority for the trial court standard for awarding

attorneys’ fees pursuant to section 242 of the probate code. Based on our resolution of the

interpretation of the statute, however, we do not need to decide which standard of review applies

to the probate court’s refusal to award attorneys’ fees in this case.

       Section 242 provides that personal representatives of estates “shall . . . be entitled to . . .

all reasonable attorneys’ fees[] necessarily incurred. . . .” Section 242, however, does not

expressly provide whom the probate court should order to pay such fees: the estate or the

adversary. Nor does section 242 limit a personal representative’s recovery of her attorneys’ fees

to situations where she prevails. Instead, the statute authorizes fee recoveries “in connection

with the proceedings and management of such estate” after listing certain types of proceedings:

“collecting or attempting to collect claims or debts, and in recovering or attempting to recover

property to which the estate has a title or claim.” (emphasis added). The omission of any

requirement in the text for the personal representative to prevail and the express inclusion of

“attempting” expands the circumstances in which fee recovery is authorized to include

unsuccessful actions by personal representatives, not merely actions in which she prevails.

Finally, although “claim,” “debt,” and “withholding property” present situations where there is

an adversary, “preservation, safekeeping, and management of the estate” do not. The statute

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could only shift the personal representative’s attorneys’ fees for the later activity to the estate.

Thus, the statute, by making no explicit provision for adversaries to pay the attorneys’ fees

distinct from the estate bearing the fees for administrative functions, requires us to interpret the

entire statute as mandating the estate bear the personal representative’s reasonable and necessary

attorneys’ fees for all the activities included in section 242. This is consistent with the omission

from the text of the statute of a requirement that the personal representative prevail in order to

recovery her attorney’s fees. Further, under appellant’s proposed interpretation, courts would be

required to assess a personal representative’s attorneys’ fees against prevailing parties in those

cases in which the adversaries succeed in proving that the property was not an asset of the estate

or they did not owe a claim or debt to the estate. We cannot conclude that the legislature

intended such an absurd result based upon the statutory language before us. See Summers, 282

S.W.3d at 437.

       Finally, nothing in the text of section 242 prohibits personal representatives from

utilizing other statutes that permit recovery of attorneys’ fees from adversaries, such as the Texas

Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b) (West 2011). Rather,

section 242 of the probate code authorizes an additional source for payment of the personal

representative’s attorneys’ fees: the estate. Thus, section 242 authorizes the probate court to

order the estate to pay the personal representative’s attorney’s fees when not recovered from an

adversary pursuant to another statute.

       The central thrust of appellant’s argument is that it would be just, fair, and right for the

legislature to have provided for fee shifting to adversaries of personal representatives who

withhold the estate’s property. Such policy decisions, however, are appropriately left for the

legislature and we decline appellant’s request to judicially alter the balance of rights struck by

the legislature in section 242. Because section 242 does not authorize appellant’s attorneys’ fees

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to be shifted to appellee, we resolve the first issue against appellant. As we have ruled against

appellant on the first issue, we also resolve the second issue against appellant as it was not error

for the trial court to deny attorneys’ fees.

                                           CONCLUSION

        We resolve appellant’s issues against her and affirm the probate court’s judgment.



                                                      / David Evans/
                                                      DAVID EVANS
                                                      JUSTICE
131130F.P05




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

SUSAN E. JONES, Appellant                            On Appeal from the Probate Court No. 1,
                                                     Dallas County, Texas
No. 05-13-01130-CV         V.                        Trial Court Cause No. PR-11-01594-1.
                                                     Opinion delivered by Justice Evans.
KAREN COYLE, Appellee                                Justices Bridges and Lang participating.

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

       It is ORDERED that appellee KAREN COYLE recover her costs of this appeal from
appellant SUSAN E. JONES.


Judgment entered this 13th day of November, 2014.




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