Opinion issued February 13, 2014.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-12-00982-CV
                           ———————————
                      MONCIE RASMUS, JR., Appellant
                                       V.
 KANETRA WOODARD, HEIR, AND ESTATE OF ROBERT GREGORY
             PATRICK, DECEASED, Appellees


                   On Appeal from the Probate Court No. 2
                           Harris County, Texas
                      Trial Court Case No. 401484401


                         MEMORANDUM OPINION

      The Estate of Robert Gregory Patrick and Kanetra Woodard, as heir of the

estate, (“Appellees”) sued A. Charles Gaston, the independent administrator of the

estate, and Moncie Rasmus, Jr., the attorney of Gaston, to recover $13,802.75 in

funeral expenses paid by Woodard and $11,780.50 in attorney’s fees Rasmus was
paid by the estate.   The trial court granted Appellees’ traditional motion for

summary judgment. The judgment recites that Rasmus and Gaston are liable for

the funeral expense, the fees Rasmus was paid by the estate, and the attorney’s fees

and costs incurred by Appellees in bringing the suit, which total $36,623. Rasmus

appeals, arguing that the trial court erred in granting summary judgment. We

reverse and remand.

                                   Background

      On November 10, 2010, Patrick died intestate, leaving two heirs, his spouse,

Linda Raye Taylor, and his daughter, Woodard. On June 1, 2011, Gaston was

appointed as independent administrator of Patrick’s estate.

      It is undisputed that Gaston, on behalf of the estate and with estate funds,

paid Rasmus $11,780.50 for attorney’s fees and expenses on December 14, 2011.

On March 15, 2012, Woodard filed a sworn statement seeking reimbursement of

$13,802.75 that she spent on Patrick’s funeral. On April 12, 2012, Woodard and

the estate sued Rasmus and Gaston for negligent management of estate funds to

recover $13,802.75 in funeral expenses, and to recover the $11,780.50

“overpayment” of attorney’s fees to Rasmus.          They also sought $5,283 in

attorney’s fees and court costs incurred in bringing the suit. On April 23, 2012,

Rasmus filed an application to approve work performed on behalf of his client,

Gaston, and the payment of $11,780.50 attorney’s fees.


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      On June 13, 2012, Appellees filed a Traditional Motion for Final Summary

Judgment on the funeral expenses and Rasmus’s attorney’s fees. 1 The motion also

requested that the trial court award Appellees an additional $5,757 in attorney’s

fees and court costs incurred in bringing the suit. With regard to the $11,870.50

“overpayment” of fees to Rasmus, Appellees argued that Rasmus should forfeit the

payment because it was excessive. Appellees attached no evidence to support this

contention. Rather, they argued the fees were excessive because (1) they exceeded

ten percent of the gross value of the estate and (2) Rasmus was not the independent

administrator.

      With regard to the funeral expenses, the motion stated that “there is no

genuine issue of material fact that the Independent Administrator is fully

responsible for the Class I, Funeral Expense” of $13,802.75.              The evidence

attached to the motion was a copy of the “filing of sworn statement supporting

claim against estate,” which Woodard had filed with the court and which included

the receipt reflecting that the funeral expenses had been paid in full.

      Rasmus’s response stated that Woodard had previously urged the same

motion and that the trial court “should take judicial knowledge of the fact that there

are numerous issues of fact to be resolved in this matter.” In support of his



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      Appellees also filed a motion “for final no-evidence summary judgment” on the
      same day. The trial court entered an order granting only the traditional motion.
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response, Rasmus filed his own affidavit in which he averred: “there are numerous

fact issues to be resolved in this matter.”

      On July 24, 2012, the trial court held a hearing on the motion. The trial

court stated that he was granting the traditional summary judgment motion because

Rasmus did not file a proper response containing evidence to raise a fact issue. On

the same day, the trial court entered an order granting the traditional motion for

final summary judgment. It awarded Appellees $25,583 for the funeral expenses

and excessive attorney fees paid to Rasmus, and $11,040 in reasonable attorney

fees and court costs, for a total award of $36,623 against Rasmus and Gaston. On

August 22, 2012, Rasmus filed a motion for new trial, which the trial court denied

after a hearing. Rasmus appealed.2

                                      Discussion

      Rasmus challenges the summary judgment on the basis that Woodard and

the estate failed to meet their summary judgment burden. He contends that the trial

court erroneously entered a default summary judgment.

A.    Standard of Review

      In a traditional summary judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and that the trial court should

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick


2
      Gaston did not appear at the summary judgment hearing and did not appeal.
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v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). “A plaintiff

moving for summary judgment must conclusively prove all essential elements of

its claim.” Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th

Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986)).

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010).           When reviewing a summary

judgment motion, we must (1) take as true all evidence favorable to the nonmovant

and (2) indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003)); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

B.    Analysis

      Appellees sued in negligence. Rasmus contends that the trial court erred in

granting summary judgment on Appellees’ claim for funeral expenses because

Appellees failed to conclusively prove that Rasmus owed a duty to Woodard or the

estate and because Rasmus, who was the attorney for the estate’s independent

administrator, cannot be liable for funeral expenses as a matter of law. Rasmus

also contends that the trial court erred in ordering the forfeiture of Rasmus’s

attorney’s fees and awarding Appellees attorney’s fees and costs of $11,040.


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      As a preliminary matter, Appellees argue that Rasmus has waived any

complaint by filing an inadequate summary judgment response that did not adduce

any evidence. A party may bring a no-evidence motion to assert that “there is no

evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i).

But here, Appellees could file only a traditional motion for summary judgment

because they had the burden of proof on the claims for which they requested

summary judgment. See Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277,

280 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing TEX. R. CIV. P. 166a(i))

(“A party cannot move for a no-evidence summary judgment on claims on which

that party has the burden of proof.”). Thus, Appellees could not obtain a summary

judgment based on Rasmus’s failure to adduce evidence in his response. Rather,

Appellees had to conclusively prove the elements of their claims to be entitled to

summary judgment. See TEX. R. CIV. P. 166a(a), (c); Jones, 710 S.W.2d at 60

(plaintiff entitled to summary judgment on cause of action if conclusively proves

all essential elements of claim).

      1.     Did Woodard conclusively establish that Rasmus was personally
             liable for funeral expenses she incurred?

      In his first issue, Rasmus contends that the trial court erred in holding

Rasmus liable for the funeral expenses because he is not liable for them as a matter



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of law. Rasmus contends that Woodard could not sue Rasmus for the funeral

expenses under a negligence theory because she was not in privity with him.

      “The elements of a negligence cause of action are the existence of a legal

duty, a breach of that duty, and damages proximately caused by the breach.”

Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (quoting IHS

Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004)). Thus, a legal duty must exist to prevail on a negligence claim. See id.

      In moving for summary judgment on the funeral expenses, Appellees relied

on sections 320A, 322, and 378B of the Texas Probate Code. Section 320A of the

Texas Probate Code provides that:

      When personal representatives pay claims for funeral expenses and
      for items incident thereto, such as tombstones, grave markers, crypts
      or burial plots, they shall charge the whole of such claims to the
      decedent’s estate and shall charge no part thereof to the community
      share of a surviving spouse.

TEX. PROBATE CODE § 320A. Section 322 classifies a claim against an estate for

funeral expenses, not exceeding $15,000, as a Class 1 claim, which has priority of

payment over other claims against the estate. TEX. PROBATE CODE § 322. Section

322 also provides that the funeral expenses must be “approved by the court.” See

id. Section 378B provides that “all expenses incurred in . . . funeral expenses . . .

shall be charged against the principal of the estate.”        TEX. PROBATE CODE

§ 378B(a).


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         While these provisions establish that funeral expenses up to $15,000 receive

priority over other claims, they do not create a duty on the part of Rasmus to pay

them. And Appellees presented no evidence that Rasmus was in privity with

Woodard or owed a duty to Woodard by which he could be personally liable for

the funeral expenses that Woodard paid. Because Appellees sued in negligence,

they were required to demonstrate that Rasmus owed a duty to pay the funeral

expenses. See Goss, 392 S.W.3d at 113. Because Appellees did not do so, we

conclude that the trial court erred in granting summary judgment on that claim.

See Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 442

(Tex. App.—Houston [14th Dist.] pet. denied) (holding that “[b]ecause it is

undisputed that the [plaintiffs] were not represented by [attorney-defendants], any

claim that the [plaintiffs] were damaged by [defendants’] negligence, if any, during

the course of the firm’s representation of [defendant’s client] fails as a matter of

law”).

         2.    Did the estate’s payment of Rasmus’s fees violate section 241 of
               the Probate Code?

         In his second issue, Rasmus contends that the trial court erred in granting

summary judgment for forfeiture of Rasmus’s attorney fees and expenses on the

ground that his fees and expenses were excessive and violated section 241 of the

Texas Probate Code. See TEX. PROBATE CODE § 241.

         Section 241 provides that

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      Executors, administrators, and temporary administrators shall be
      entitled to receive a commission of five per cent (5%) on all sums
      they may actually receive in cash, and the same per cent on all sums
      they may actually pay out in cash, in the administration of the estate . .
      . however, that in no event shall the executor or administrator be
      entitled in the aggregate to more than five per cent (5%) of the gross
      fair market value of the estate subject to administration.

Id.

      Appellees asserted in their summary judgment motion that Rasmus’s

attorney’s fees and expenses were excessive because they exceeded five percent of

the gross value of the estate, in violation of Section 241. But Section 241 applies

to executors and administrators, and did not apply to Rasmus because he was not

an executor or an administrator of Patrick’s estate. See id. Accordingly, Appellees

failed to conclusively prove that Rasmus’s fees should be forfeited on the ground

that they violate Section 241. See id. Appellees did not articulate any other basis

for forfeiture of the $11,780.50 fee paid to Rasmus, and they adduced no evidence

demonstrating that Rasmus’s attorney’s fees were excessive. Accordingly, we

conclude that the trial court erred in granting summary judgment on that claim.

See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660

(Tex. 1995) (concluding pleadings are not competent summary judgment evidence,

even if sworn or verified); Oko v. Oguntope, No. 01-06-00589-CV, 2007 WL

852662, at *5–6 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding evidence

supported finding that attorney’s fees not excessive because party contesting


                                          9
attorney’s fees failed to address reasonableness factors for attorney’s fees or

provide evidence to support argument that fees were excessive).

      3.     Did the trial court err in awarding attorney’s fees to Appellees?

      Rasmus also challenges the $11,040 award of attorney’s fees and court costs.

Having concluded that the trial court erred in granting summary judgment against

Rasmus on the claims for funeral expenses and forfeiture of Rasmus’s attorney’s

fees, we also reverse the trial court’s judgment holding Rasmus liable for

Appellees’ attorney’s fees. See State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 885,

895 (Tex. App.—Dallas 2001, pet. denied) (reversing trial court’s judgment

awarding attorney’s fees because trial court improperly granted summary judgment

in favor of that party).

                                   Conclusion

      We reverse the trial court’s judgment against Rasmus and remand the cause

for further proceedings.



                                             Rebeca Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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