pjc-family-2024-lib

PJC 250.3

A TTORNEY ’ S F EES

Segregation of fees. If any attorney’s fees relate solely to a claim other than the validity of a will as described by Tex. Est. Code § 352.052, a claimant must segregate recoverable from unrecoverable fees. Intertwined facts do not make unrecoverable fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated. Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 313–14 (Tex. 2006); see also Kinsel v. Lindsey , 526 S.W.3d 411, 427 (Tex. 2017); In re Estate of Vrana , 335 S.W.3d 322, 328 (Tex. App.—San Antonio 2010, pet. denied). Segregation of fees may be required on a claim-by-claim basis. Horizon Health Corp. v. Acadia Healthcare Co. , 520 S.W.3d 848, 884 (Tex. 2017) (no evidence to support breach of contract claim, but evidence supported Texas Theft Liability Act claim, so remanded for testimony segre gating on a claim-by-claim basis); Chapa , 212 S.W.3d at 313–14. Any error in failing to segregate attorney’s fees is waived by a failure to object to the lack of segregation. Green International, Inc. v. Solis , 951 S.W.2d 384, 389 (Tex. 1997). Liability for fees. The Texas Supreme Court has ruled that Texas Probate Code section 243, codified as Tex. Est. Code § 352.052, is a reimbursement statute. Thus, if the proponent is not obligated to pay the fee, it is not reimbursable from the estate. Russell v. Moeling , 526 S.W.2d 533, 535 (Tex. 1975) (recognizing that purpose of Pro bate Code section 243 is “to pay the costs of attorney’s fees that are owed by the exec utor or administrator, and the allowance is not to the attorney, but to the administrator”); Salmon v. Salmon , 395 S.W.2d 29, 31 (Tex. 1965) (concluding that Probate Code section 243 authorized reimbursement of fees and expenses “incurred” by executors); In re Estate of Arndt , 187 S.W.3d 84, 90 (Tex. App.—Beaumont 2005, no pet.) (refusing to award appellate fees where there was no evidence party actually incurred liability for attorney’s fees). But see In re Estate of Johnson , 340 S.W.3d at 787 (in case not involving contingent fee, court stated “ ‘proof of fees actually incurred or paid [is] not [a] prerequisite[] to the recovery of attorney’s fees in Texas.’ AMX Enters., L.L.P. v. Master Realty Corp. , 283 S.W.3d 506, 520 (Tex. App.—Fort Worth 2009, no pet.).”). Paralegal expenses. Concerning the inclusion of compensation for a legal assis tant’s work in an award of attorney’s fees, see Gill Savings Ass’n v. International Sup ply Co. , 759 S.W.2d 697 (Tex. App.—Dallas 1988, writ denied).

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