AFFIRM; and Opinion Filed September 10, 2019.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01288-CV

                 IN THE ESTATE OF BRIAN MATSUO SAKIMA, DECEASED

                           On Appeal from the Probate Court No. 2
                                    Dallas County, Texas
                            Trial Court Cause No. PR-11-03677-2

                             MEMORANDUM OPINION
                         Before Justices Brown, Whitehill, and Schenck
                                  Opinion by Justice Schenck
       Kathleen Aihara (“Aihara”) appeals the probate court’s order removing her as

administrator of the Estate of Brian Matsuo Sakima, deceased, and appointing a successor

administrator. On appeal, Aihara contends the probate court erred in removing her as the

administrator and by failing to enter findings of fact and conclusions of law. We affirm the trial

court’s order. Because all issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.4.

                                         BACKGROUND

       Brian Sakima passed away at the age of 61. Although Sakima was a resident of Texas, all

of his relatives reside in Hawaii. Sakima was survived by his mother, four sisters, and a brother.

In 2011, Aihara, who is one of Sakima’s sisters, filed an application for letters of administration

seeking to serve as the administrator of Sakima’s estate. The probate court appointed Aihara

administrator.
       During the pendency of this case, Aihara filed various accountings that the probate court

determined were not proper and on at least three occasions, the probate court issued an order to

show cause why Aihara should not be removed as the administrator of the estate. The last

accounting filed by Aihara indicated that the estate had $30,921 in cash and $8,000 in proceeds

from an insurance claim for hail damage to the home Sakima owned.

       The trial court issued its final show cause order on April 5, 2018, stating it appeared that

Aihara had misapplied all or a part of the property committed to her care as required by law, failed

to file a proper account, or is guilty of gross misconduct or management in the performance of her

duties. The show-cause order stated Aihara should be cited to appear in the court and show cause

why she should not be removed from office.

       On June 5, 2018, the court held a show cause hearing. Aihara did not appear at the hearing.

Her attorney was present. At the hearing, the probate court judge questioned why Aihara was not

present despite the order directing her to appear. The probate court judge asked Aihara’s attorney

if he brought the insurance claim proceeds check in the amount of $8,000, indicating that questions

relating to those proceeds prompted the show-cause order. At the hearing, Aihara’s attorney

explained the insurance company issued the check in the amount of $8,000 payable to the mortgage

company and the personal representative. He stated the check had not been negotiated because

the mortgage company refused to endorse the check over to the estate. He further indicated that

the insurer would not reissue the check payable to the estate only. The probate court then

questioned him about the property that was subject to a mortgage and Aihara’s attorney revealed

that the deceased had owned a home in Las Colinas and that during the pendency of this case the




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lender had foreclosed on the property.1 Counsel indicated that, in connection with the foreclosure,

Aihara obtained a release from the lender on claims against the estate.

           The probate court judge noted the age of the case and wondered aloud why an estate with

a foreclosed home and a $30,000 bank account was still open after seven years, and why the $8,000

check had not been negotiated. At the conclusion of the hearing, the court announced that it was

going to remove Aihara as administrator for failure to make a proper accounting. The probate

court judge then stated, “I’m going to go over a couple things here in the file so you can understand

why I’m removing her.” The court then noted that it had “show caused” Aihara on April 5, 2018,

for failure to file a proper account, as well as for possible misconduct or mismanagement in the

performance of her duties. The court also noted Aihara failed to appear. The court then detailed

the history of filings of improper accounts, and notifications concerning same. The court stated

Aihara had been ordered to show cause three times. The assets had not changed significantly over

the life of the case, Aihara is still dealing with the same bank accounts, the vehicle Sakima had

owned was abandoned, his house had gone into foreclosure, and Aihara cannot navigate the

negotiation of a single $8,000 check. In addition, the probate court stated Aihara had been ordered

on at least two occasions to file a proper final accounting and yet still failed to do so.

           On July 26, 2018, the probate court entered its order removing Aihara as the administrator

and appointing a successor administrator. On August 15, 2018, appellant requested that the

probate court enter findings of fact and conclusions of law. Aihara gave notice of past due findings

of fact and conclusions of law. This appeal followed. 2




      1
        When questioned as to why Aihara allowed the home to be foreclosed upon, her counsel indicated Aihara attempted to sell the property but
the offer she obtained would have required the lender to write off approximately $10,000, which the lender was not willing to do. He further
explained the home was in poor condition and that the estate spent $2,000 to $3,000 to have items removed from it.
     2
       Aihara brought a very limited record forward on appeal. It is apparent from the one reporter’s record filed with this Court that there was a
long history of issues concerning Aihara and the administration of the estate before the probate court decided to remove her as the administrator.

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                                            DISCUSSION

       A trial court’s order removing an administrator is reviewed under an abuse of discretion

standard. In re Estate of Miller, 243 S.W.3d 831, 839 (Tex. App.—Dallas 2008, no pet.). A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to

any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

242 (Tex. 1985). Under an abuse of discretion review, the appellate court is not free to substitute

its own judgment for the trial court’s judgment. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002). Under an abuse of discretion standard of review, an appellate court must make an

independent inquiry of the entire record to determine if the trial court abused its discretion. In re

Estate of Clark, 198 S.W.3d 273, 275 (Tex. App.—Dallas 2006, pet. denied) (citing Chrysler

Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992) (orig. proceeding)).

       A personal representative may be removed by the court if the representative: (1) has

misapplied, embezzled all or a part of the property entrusted to the representative’s care; (2) fails

to return any account required by law to be made; (3) fails to obey a proper order of the court; (4)

is guilty of gross misconduct or mismanagement in the performance of the representative’s duties;

(5) becomes incapacitated, is sentenced to the penitentiary, or from any other cause, becomes

incapable of properly performing the duties of the representative’s trust, or (6) fails to make a final

settlement by the third anniversary of the date letters testamentary or of administration are granted,

unless the period is extended by the court on a showing of sufficient cause supported by oath or

timely filed affidavit or certificate required under section 308.004 of the estates code. TEX. EST.

CODE ANN. § 361.052.

       Aihara contends the probate court reversibly erred by removing her as the administrator of

her brother’s estate on grounds directly contradicted or not supported by the record. We disagree.




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       At the show cause hearing, the probate court judge expressed that this case had been open

and languishing without reason. Administration opened in 2011 and the show cause hearing was

conducted on June 5, 2018. There had not been a significant change in the assets yet Aihara was

still dealing with bank accounts and could not figure out how to negotiate a check for $8,000. In

addition, despite being ordered to show cause on three occasions, a proper accounting had not been

made, although Aihara made attempts to file a final accounting. Accordingly, statutory grounds

existed for the removal of Aihara as administrator of the estate. See In re Estate of Washington,

262 S.W.3d 903, 906–907 (Tex. App.—Texarkana 2008, no pet.) (removal for failure to file

required accounts); Kuck v. Dixon, 127 S.W. 910, 912 (Tex. Civ. App. 1910, error ref’d) (failure

to take action for series of years basis for removal). We conclude the probate court did not abuse

its discretion in removing Aihara as administrator of the estate.

       As to Aihara’s complaint concerning the probate court’s failure to enter findings of fact, a

trial court has a mandatory duty to file properly requested findings of fact. Cherne Indus. v.

Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The lack of findings is harmless, however, if the

record affirmatively shows that the complaining party suffered no injury. Tenery v. Tenery, 932

S.W.2d 29, 30 (Tex. 1996). When the trial court announces its reasons for its ruling in open court,

the appellant's ability to present the appeal is not harmed because there was no need to guess the

reasons for the trial court’s adverse ruling. Culver v. Culver, 360 S.W.3d 526, 538 (Tex. App.—

Texarkana 2011, no pet.).

       Assuming, without deciding, Aihara was entitled to findings of fact, the probate court

announced its reasons for the ruling in open court, stating the case had been pending for too long

without a significant change in the assets and there had been an improper accounting. The trial

court’s statements on the record clearly provided the basis of its ruling. On appeal, Aihara has not




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explained how she was prevented from properly presenting the case to this Court. The probate

court’s error, if any, did not result in reversible error. See TEX. R. APP. P. 44.1.

       We overrule Aihara’s sole issue.

                                            CONCLUSION

       We affirm the probate court’s order removing Aihara as the administrator of the Estate of

Brian Matsuo Sakima.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
                                                    JUSTICE


181288F.P05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE ESTATE OF BRIAN MATSUO                      On Appeal from the Probate Court No. 2,
 SAKIMA, DECEASED                                   Dallas County, Texas
                                                    Trial Court Cause No. PR-11-03677-2.
 No. 05-18-01288-CV                                 Opinion delivered by Justice Schenck.
                                                    Justices Brown and Whitehill participating.

       In accordance with this Court’s opinion of this date, the probate court’s order removing
Kathleen Aihara as the Administrator of the Estate of Brian Matsuo Sakima is AFFIRMED.



Judgment entered this 10th day of September, 2019.




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