### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 22

- 00454

- CV

John Barnes Gordon, Independent Executor of the Estate of Patrick Malco l m Gordon, Deceased , Appellant

v. Beverly Diane Gordon , Appellee

FROM THE COUNTY COURT AT LAW OF BASTROP C O U NTY NO. 10,256 , THE HONORABLE JOHN M. DELANEY , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

John Barnes Gord on, the I ndependent Executor of the Estate of Patrick Malco l m Gordon, appeals f rom the trial court ’ s final judgment , rendered a fter a j ury trial , removing him as
the executor due to gross misconduct or mismanagement and determining several other issues as matters of law

. Among other issues, John challenges the jury ’ s findings supporting his removal ; the trial court ’ s legal det erminatio n s about the provisions in and effects of the dece dent ’ s will ; and the trial court ’ s award of attorney ’ s fees to Beverly Diane Gordon , wife of the dec edent

. 1
We reverse the portion of the trial court ’ s judgment awarding attorney ’ s fees , remand for a
redet e r mination of attorney ’ s fees , and affirm the judgment in all other respects.

1 Becaus e appel lant, appell ee , and the dece dent share the same surna me, f or co nve nience we us e the parties ’ first n a mes or the names by which the parties refer to th emsel ves and one another , i.e. , “ John ” for John Barnes, “ Pat ” for Pat rick , and “ Diane ” for Beverly Diane.2 BACKGROUND Pat and Diane were marrie d in 1 992 , and had no children adopted by or born t o the m during their marriage , or from any o t h e r r e l a t i o n s h i p s
. In February 200 9, the coup le retained an attorney to draft in dividual wills and a trust agreement for the Patrick M. Gordon and Beverly Diane Gordon Revocable Trust. The trust agreement appointed P at and Diane as
trustees and John (Pat ’ s brot he r ) as successor trus tee should neithe r Pat nor Diane be able or
willi ng to se r ve
. Thereafter the couple funded the trust by changing the tit le on their vehicles, real property, equipment and tools us ed in Pat ’ s wel ding bus in ess, and so me financial acco u nt s
. The trust continue d to hold title to such property until Pat ’ s death

. In A u gust 2011, the couple executed a joint will , which was d rafted by John

. John had pr eviously provid ed so me investment advi ce to th e couple and , tho ugh not an at torney,
had u rged them to allow him to draft their wi lls and provide them “ e state planning ” to avoid an

“ estate war

. ” The will appoint s John as independent executor and name s Pat ’ s niece and three nephews (including John ’ s two sons) and D ia ne ’ s niece s and nep hews as p rima r y ben eficiaries,
d ep ending upon whi ch sp ouse dies first

. The will identifies several categories of property (A through F) and provides that , “ [a] fter a ll just debts and all of the costs of executing th is will have been p aid , the rest, resid ue, an d re main d er of the estate in CATEGORIES A, B , C, D, E, & F
shall be distr ibuted as follows

. . . . ” The will specifies three d ifferent d istribution s chemes for
the categories of property : (1) if Pat dies first , (2) if Diane dies f irst, and (3) if Pat and Di an e di e within t hirty days of each other. The will does not have a residu ary clause providing for the
distribution of property not f alling within any of the six categories.3 Pat di ed in August 2012, and John admitted the wil l to pr obate and was issued
le tters t est amentary as the independent exec utor. Shortly thereafter, a dispute arose between
John and Diane about whether certain property was to be included in Pat ’ s probate estate. J ohn filed a petition for declaratory judg m ent re qu esting the court to c onstru e the following parag raph
in the wil l:
It is our intention to dispose of all property (real, personal and mixed) which we have the right to dispose of by Will per the below c at ego ries in the manner described below based o n who die s first or if we b ot h d ie w ithin 30 days of each other. This Will shall override any p rior allocations described in trust documents or any financial documents such as annuities and certificates o f deposit

. (Emphasis added.) John contended that the final sentence o f the p ar agraph r evoked the couple ’ s
trust , despite the f act that neither Pat nor Diane had taken any steps to transfer property out of
the trust an d into their own names

. 2 Diane filed a motion for summary judgment in which she

conten ded that the trust be came ir re vocable upon Pat ’ s deat h ; that the above c l ause was testamentary, becoming e ffective only u pon Pat ’ s death , an d therefore the clause had not revoked the trust; and that the disputed pro perty was therefore not part of Pat ’ s est ate. The trial court grante d D ian e ’ s mo tion, and our sister cour t (on tr ansfer from thi s Court) affirmed that
determination

. See Gordon v. Gordon , No. 11

- 14

- 00086

- CV , 2 016 WL 1274076, at * 4 ( Tex. App.

— Eastland Mar . 31, 2016, pet. denied ) (mem. op.) ( hold in g that a bove clause in wil l w as
tes t amentary , rather than opera tive in praesenti , and did not revoke trust)

. The probate litigation, however, did not conclude there and has been pending for

ov er a decade

. Whil e John ’ s original petition and Diane ’ s mo tion for su mmary judgm en t we re

2 T he trust prov ided that either Pa t or Diane (or both) could r evoke the tr ust during their lifetime but only by signed re v o cation delivered to the other trustee . Upon the death of eit her spouse , the trust woul d b ecome i rr evoc able a s to the deceased settlor.4 p ending before the trial court, Diane file d an original p etition for disqualification and removal of John as independent executor

. Di ane prayed that the court remove John du e to unsui tability, see
T e x. Est

. Code § 304.003 (a)(5) ( noting that pe rson foun d “ unsuita ble ” by court i s dis qu alified to

se rv e as executor ) , and because he had engaged in gross misconduct or gross mi smanageme nt of
Pat ’ s estate, see id. § 404.0035 (b)(2) ( permitti ng court to remove independent executor w ho is

“ proved to have been guil ty of gros s misconduct or gross mismanagement i n the performance of
the inde pendent executor ’ s duties ” ). The parties have filed many other pleadings and motions over the years, includ ing Jo hn ’ s latest (fourth amended ) pe tition for declar a tory judgment , in

w hich he requests th e court to determine t ha t (a) either the will is a contract between Pat and
Diane o r, altern atively, is a n “ election will ” ; (b) Diane breached her fiduciary duty t o Pat
and committed fraud on the comm unity ; (c) the wil l re voked ben efic ia ry, righ t

- of

- sur viv orship (ROS) , and pay abl e - on - dea th (POD) designations applying to the cou ple ’ s financial accounts; and (d) Diane was un justly enriched by first agreeing to receive $15 0,000 of Pat ’ s separate property in e xchange for ex ecuting t he j oin t w ill but now att empting to receive more th an she is
entitled under the will

. In Diane ’ s most recent (first amended) petition for declaratory judgment, she requests the court to determine that the will conveys only Pat ’ s one - half communit y interest
in the a ssets c o mprising Catego ries B and C ( the we ld ing

- business equipment and the financial accounts, respectively ) and prays for attorney ’ s fees. The case was tried to a jury in February 20 2 2 on only two issue s: (1 ) Diane ’ s cl aim that John should be rem oved f or gros s mismanagement or misconduct and (2 ) John ’ s claim
that Dia ne was unjustly enr iched. The trial court rendered judgment on the jury ’ s verdict that John take nothing on his unjust

- enrichment claim and that he be remov ed as i ndepe nd ent

e xecutor

. Th e parties agreed to submit th e issue of attor ney ’ s fee s to the c ourt, and a fter a5 subsequent evidentiary hearing , the court rendered judgmen t that Di ane recov er from John specified amounts of att orney ’ s fees, both at the tria l level and in the event of an ap peal

. T he

cou rt additionally m ade the fol l owing rul ings on “ other matter s of law at issue ” in th e case , some of which it had previously determined in inte rlocutory summary

- judgment orde rs :

• The Will is not enforceable as a contract

. • Prov isions in the Wil l that pur p ort to alter beneficiary designati ons or join t

- tenant

- with

right

- o f

- survivorship designations in deposit accounts or other contracts are legally in e ffective to alter them

. • The W ill conveys only Pat ’ s one - half commu nity interest in property a nd d oe s not co nve y any separate property of his

. • [Diane] ha s not made a “ Wido w ’ s Election

. ”

• Because the Will doe s not have a residuary clause, any re co very by John on his cause of action for u njust enrichment would pass by intest ate succession to [Diane] , Pat ’ s sole hei r at law

. John timely perfected th is appeal f rom the judgment.

DIS CUSSI ON Issues pertaining to the jury ’ s findings
In his first and se cond issue s , John contends that the evi dence is legally and factually insuff icient , respecti v ely, to s upp or t the jury ’ s findi ng that his actions c onstitut ed
gross misconduct or gross m ismanagement. Unlike his issue challenging the leg al sufficiency, however, h e did not preserve his challenge t o th e factual sufficiency on this fin ding because , al t hough he fil ed a motion fo r new trial, he did not pay the fil ing fee f or the motion

. See G arza v. Garcia , 137 S.W .3d 36, 38 (Tex. 2004) (holding that because party did not p ay filing fee for
motion for new trial, complaint therein concern ing factual suff i ciency was n ot p reserved f or
app ellate review). W e according ly overru le his second issue.6 As to John ’ s contention tha t the evidence is le gally insu fficient to support the jury ’ s finding that his act ions constituted gross misconduct or mismanagement, to prevail on

a

p pe al he must demon strate that no e vidence suppor ts the a dverse finding. See Ex xon Corp. v.
Emerald Oil & Gas Co. , 348 S.W.3d 1 94, 215 (Tex. 2011) . Evidence is legally suf ficient to
suppo rt a jury finding if it “ would enable reasonable and f air

- minded pe o pl e to reach the v erdict
under review. ” Id. In reviewi ng the evide nce, we “ credit favorab le evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors c ould not. ” Id. The jury was cha rged with answering the followi ng question : “ Di d John Gordon engage in gross misco nduct , or gross misman agement in the performance of his duties as independent executor? ” Gross misconduct was defined in the charge as “ glaringly obvious or flagrant miscond uct ” and gross misma n agement as “ glaringly obvi ous or flagrant mismanagement

. ”
A s independ ent executor, John had a f iduciary duty to protect Diane ’ s and the
othe r estate beneficia ries ’ interests by fair de al ing in g o od faith with fidelity and integrity

. See In re Roy , 249 S.W.3d 59 2, 5 96 (T ex. App

. — Waco 20 08 , pet. denied ) ; Geeslin v. McElhenney , 788 S.W.2d 683, 685 (Tex. App.

— Austin 1990, no writ)

. An executor ’ s persona l inte rests
may no t conflict with his fiduciar y obl igations to the estate and its b eneficiaries. See Roy , 249 S.W .3 d at 596

. When legally sufficient evidence establi shes that an executor violated his fiduciary duties, such as by failing to make disclosures in required accountings or to
beneficiaries abou t estate receipts and expenses, the trial court ’ s find ing that th e executor

exe rc ised gr o ss mismana g ement ma y proper ly be upheld on appeal. See id. at 597

. Gross
misma nagement and gross mi scond uct include, at a minimum, (1) any willful omission to
p erfor m a legal duty; (2) any intentio nal commission of a wr ongful ac t; a nd (3) any bre ach of a7 fiduciary duty that result s in actual harm to a beneficiary ’ s i nte rests. Sammons v. Elder , 940 S.W.2d 276, 283 (Tex. App

. — Waco 1997, writ denied)

. Our review o f the record leads us
to conclude tha t the evidence is lega lly suffi ci en t to support t he jury ’ s finding.
John testifie d that he di stributed $ 59 4,000 from an esta te account to his two sons , niece , and nephew within a month of be ing appointed executo r. T his transfer wa s in direct
conflict w ith the debt clause in the will , wh ich was admitt ed into evidence , and which express ly require s that “ a ll expenses associat ed with the administration of [my] estate be paid prior to
the distr ibution of any of the estate

. ” Moreover, t h is transfe r constitut ed t he majority of
Pat ’ s proper ty p assing under t he will

. 3 Be sides leaving few asse ts in the estate with which to
pa y admini stration expenses, the amounts of w hich were unknown at su ch an early stage,
John ’ s disburseme nt of the $594,000 also deprived Dian e of her one - half com munity sha re of
that amount

. 4
When cross - examined on the iss ue of whether such distributi on w as in violation
of the will ’ s debt clause , John explained that the will contained a “ typo ” because th e a ccoun t
from which he made the dist ribution was not to be consider ed a part of the es tate but, i nstead,
constituted “ inh er itances ” to which the de bt clause did not apply . He stated that the accou nt

3 Although t he trial court di d not determine as a matter of law the spe cific property or values thereof passing under t h e will , it is fair to estimate that this $5 94,000 disbursement constituted the majority of Pat ’ s es tate , base d on (1) the court ’ s determination s tha t the will di d not re voke the trust or bene fic iary designa tions on financial a ccounts , (2) t he evidence es t a blish ing that most of the parties ’ property other than the accounts remain ed titled in the tru st , ( 3) John ’ s list of financial a ccounts listing the beneficiary or POD designations of the couple ’ s accounts, and (4) John ’ s filed inventory listing h i s estimated values of the “ estate ” property

. Joh n ’ s inventory estimated the value of Pat ’ s tang ibl e per so na l property , such as artwork , furniture, and jew el ry, as $37 ,500

.
4 T he tri al court determined t hat t he will conveys no s eparate property of Pat, a n d John does not chal le nge that determinatio n on a ppeal.8 should pass outside of the will. But , according to the list of investment accounts John him self
p repared and attac hed to a l e tt er brief he fi led with the court , and wh ich w as a dmitted into
eviden ce, th e account that contained the $594,00 0 did not contain any bene ficiary designations

o r have a ROS or POD provi sion ( unlike most of Pat ’ s and Diane ’ s banking and invest men t

accoun ts )

. 5 Furthermore, t hrough his unjust

- enr ichment clai m, J ohn test ified that he was

see king to recover his executor expenses of $30 0,000 from Diane only and would not seek
reimbursement of his expenses from his sons , niece , a nd nephew , to who m he h ad distr ib ute d the $594,000 , mea ning that Diane would have to foot the bill on those administration expenses and would be receiving less of the estate than that to which she was entitled.
John testified that he sold some of the w elding

- business equipment

— a n ac ti on th at v iolated the court ’ s injunction , a copy of whi ch was admitted into evidence

— claiming that at a hearing the court gave him oral permission to sell t he equipment

. R e gar dless of w hether the
sale was authori zed, however, half of the proce ed s con stituted Diane ’ s community property , and the equipment wa s t itled in the trust , but John did not distri bute to Diane her share of the community proceeds and instead used it , he clai med , to “ recoup ” his fees

. He also t e stifie d that
he included Diane ’ s comm unity

- property inte rest in the e state ’ s real

- property valuat ions when

co mpilin g the estate inventory , despite exhibiting an understan ding t hat community pr operty

means that each spo use has an undivided one

- half interes t i n th e property . He cl aimed th at hi s attorney adv ised him to comp ute th e estate values thusly

. On cross

- examination , John testified that Pat believed t he will ’ s provision s tating
that it “ override[s] allocations described in trust documents or other financial documents ” was

5 Th e account was h e ld solely in Pat ’ s n ame , and t he refore Joh n g ained control over the account when he was issued l etters testamentar y.9 “ eff e ct ive at the time he ex ecuted the will. ” However, when probed about a lease contract (w hich John ha d also drafted ) bet ween the welding company and the coupl e ’ s trust requiring the
company to make regular lease payments to th e trust for the rental of t he e qu ipment and tools ( own ed by the trust), John confirmed that the weld ing company continued m aking regular lease payments to the trust even after the will was executed

. When questioned why Pat would have continued making thos e payme nts if he believed t hat th e will had revoked th e trust, John was unable to provide an e xplana tion but rather merely confirmed that the lease payments continued
to be mad e by the welding company to the trust acc ou n t. John confirme d that Pat was awar e of
the monthly lease paym ents t o the t rust account, even though Diane wrote most of the che cks
and Pat wrote only three o f them.
John testified that, apart from executing the will, Pa t did not take any actions to
revoke the trust. He also testified that Pat did not “ do anything ” to change a ny beneficiar y , ROS, o r POD designations on fin ancial accoun ts after the will was signed , and John did not do anything to “ help facilitate ” changing any desi gnations. None thele ss, even though John “ tried to
i nterp ret [the will] the way [he] f el t [the coup le] wanted it interpreted, ” he admitted that the court
had t old him his interpret ation of the will was “ wrong ” with respect to “ some ” (uns pecified)
issues. He testified that he pursued his “ interpretation ” of the will not to benefit his son s, n ie ce, and n ephe ws but to “ do exactly what the will said as [he] underst ood what Pat and D ian e mean t. ”
When challenged on cross

- examination about the unjust

- enrichment claim he was
pur suing, Jo hn evaded the question about to wh om any proceeds from a re c o very would b e distribut ed , despite being informed by opposing counsel th at the will has no residu ary clause and that any recovery would, therefore, go to Diane as the sole heir under int estacy laws

. Despite a temporary inj unction requiring John to keep “ s afeg uarding ” fund s in the es tate of no less than10 $20,000, he in form ed th e judge that the e state had no funds avai lable, after he had made the large
distribution to his sons , niece , and n ephews. One of Pat ’ s n ephews testifi ed that he was satisfied
with t h e share of th e estate he re ceived , and no other beneficiary had filed any thing in th e case complain ing about un just enrichment or the distributio n of the estate

. Diane testified that she signed the will John drafted “ under duress ” because she had been di a g nosed with S tage 4 cancer and Pat

— who had suffered at least two re cent s trokes

— had threate ned her with divor ce if she did not sign it . She explained that John had helped her and Pat tit le all the business equipment in
the trust, which c ontinued to hold t i tle to the e quipment after the will was signed and through
Pat ’ s death

. Having review e d the record, including t he above

- cited evidenc e , we conclude that legally sufficient ev idence supports the jury ’ s finding that John engaged in gross misc on duct o r
gro ss mismanagemen t as independent executor of the estate. The evi dence sup por ts finding s th at he placed the interests of his sons , ni ece, and nephew ahead of Diane ’ s in terests; that h e willfully
distributed assets of the estate knowing that suc h distribu tio n was contrary to the will ’ s provis io ns and would disproportionatel y ben e fit his sons, nie ce, and ne phe ws to D i ane ’ s detriment ; that his in ventory was in accurate and misleadin g; that pu rsuing his un just

- enrichmen t
claim was a waste of estate r es ources; tha t he violated a court injunction and reserve requirements; and that he f a ile d to distrib ute portions of the estate rightfully belonging to Diane

. We accordingly overrule John ’ s second i ssue.11 In his third issue , John con tends that the eviden ce is factual ly insufficient to
supp ort t he ju ry ’ s finding that Diane was not unjustl y en riched. 6 However, as we determine d with respect to John ’ s second iss ue, Jo h n did not pay th e filin g fee for hi s motion for new trial

an d thus did not preserve this is su e
. See Gar za , 137 S.W.3d at 38

.

I

ssues pertaining to the trial court ’ s legal determ i na tions and failure to make additional findings
In his fourt h iss ue, John contend s that the tria l court erred in failing to provide

“ adequate findings of fact and c o n clusions of l aw , ” preventing him from addre ssing on appeal

“ those portions of the judg ment n ot th e subject of the jury trial ” (i.e., all issue s except u njust enrichment and gross m iscond uct or mismanageme nt). The trial cou rt made findings of fact and

co nc lusions of la w after John re quested them. Joh n then requested additio nal findings of fact
and conclu sions of law , see Tex. R. Civ. P. 298 , ar guing that each of the trial court ’ s legal
d eterminations need ed to be supported by “ specific facts ” and that th e court ’ s findi ng that Diane
i s ent itled to all of her requested legal fees must be supp orte d by “ facts wh ich demonstrate that the claimed attorney ’ s fees are related to matters for which the laws allowed such recovery and [ m ust] specify the facts that wou ld justify not segregating tho se fees. ” The trial court did not
make additional fin ding s of fact and conc lusions of law , and Joh n contends that such failure unfairly prejudices him and in h ibits hi s ability to prosecute this appeal.
A party is not e ntitl ed to fi ndings of fa ct and con clusi ons of law when the trial

cou rt render s judgment or d ecides an issue as a matter of law , because findings and conclusions

serve no purpose in such instan ces and should not be requested, made , or considered on app eal.

6 The jury charge d efin ed “ unjust enric hment ” as occur ring “ when s o meone has wron gfully secured a b en efit or has pas sively received one which it would be uncon s ci onabl e to retain. ”12 IK B I n d us. (Niger i a ) L td. v. Pro

- L ine Corp. , 938 S .W.2d 440, 443 (Tex. 1997 ) (finding s have no
purpose a nd s hould not be requested for , e.g., su mmary judgments, judgment after direct ed
verdi ct, judgm ent non obstante veredicto , and any judgment rende re d with o ut e videntiary
heari ng) ; Watson v. City of San Marcos , No. 03

- 22

- 00307

- CV , 2023 WL 3010938 , at *2 (Tex. Ap p.

— Austin Apr. 20, 2023, pet. denied ) (mem. op.) ( recognizing that t rial court nee d not make findings of fact and co ncl usions of law when it de cides l eg a l issues wit hout hearing evid ence)

. A s explained below, e ach of the l egal determin ation s that John cha llenges involve s the p roper construction of the will or of statutes or the applica tion of statutes or the common law to the undisputed facts ; n one of th em involve th e resolution of di sputed fact issues

. Acc ordingly, John

w as not entitled to findings of fa ct and conclusions of law as to the challenged legal
determi nations. See IK B Ind u s. , 938 S .W.2d at 443

. As to his complaint that the trial co urt di d no t “ specif y in detail the fact s that would justify not seg regating ” Diane ’ s recoverable from non

- recover able attorney ’ s fees, we
address that contention below with respect to John ’ s t enth issu e
. Additionally, b ecause we review complaints a bout th e am ou nt o f fees aw ard ed for legal suff iciency, we conclude that John
ha s not dem onstrated that h e h as been prejudic ed or prevented from prese nting his case on appeal by the trial court ’ s fail ure to issue a dditional fact findings r egarding attorney ’ s fees
beca us e in our revi ew we necessarily co nsider the sufficiency of the entire evidenti ary record to support the trial court ’ s implied finding that all o f Diane ’ s requested fees were recoverable

. See
Aaron Re nts, Inc. v. Travis Cen t. Appr aisal Dist. , 212 S.W .3d 66 5, 6 71 (Tex. App.

— Austin 2006, no pet.) ( noting that appellate courts review a m ount of atto rney ’ s fee s awarded for legal sufficiency) ; see also Fawcet t v. Grosu , 498 S.W.3d 650, 666 (Tex . App.

— Houston [14 th Dist.]13 2016, pet . denied ) ( noting that part y se ek ing attorney ’ s fees must prove am ount as well as
reasonabl e n ess and necessity of fees sough t)

. W e overrule John ’ s fourth issue.
In his fif th iss ue, John c ontends that the trial co urt erred in determining as a
matte r o f law that the w ill i s not a c ontract. Sec tion 254.004 of the Estate s Code gove rns whethe r a joint will is to be construed as a contr act :
(a) A cont ract exec uted or entered into on o r after Se pte mber 1, 1979, to mak e a will or devise, or not to revoke a will or devise, may be establ is hed only b y: (1) a written ag reement th at is binding and enforceable; or (2) a will stating: (A) that a contr act exists ; and (B) the mat erial provisions of the con tra ct. (b) The executio n of a joint will or reciprocal wills does not constitute b y itself su fficient e vid ence of the exis tence of a contract.

T ex. Est

. Code § 254.00 4

. No provisions w ithi n th e w il l state , e ither e xpressly o r impliedly,
that the couple have a n existing cont r act re garding the devise of their pr operty , and John poin ts
to no s tan d

- alone or o the r wri tten ag reement c o nsti t uting a contract to devise their p roperty. Instead, he re l i es on the follo wing pro visio n of the w ill to supp ort his co ntentio n that it
constit u tes a contract :

T h e purpose of this j oint Last Will and T es tament is t o a llocate th e combined ass ets of PAT RICK and DIANE GORD ON depending on who dies f irst or if b oth di e withi n 30 days of each other AND to identify asse ts which a re not to be considered j ointly a part of the estate.

That provision , however, n ei ther eviden ce s t hat the pa rties have a n existing contra ct for the devise of property no r does it identify the mat erial provision s of any such con tract. John also14 relies on the fact that the w ill c ontains two distinct des criptions of distri bution of the es tate
assets , dep ending on which spouse dies firs t , as s pe cifying t he “ material provisio ns ” of the parties ’ purpor ted contract

. But the will ’ s mere recitation of two different distribution schemes , without more, also does not evidenc e that a contract exists or meet t he st atutory re quirements

. A lthough the stat ute does not define “material p rovis ions ” in this context , courts ha ve exam i ned
wills for a n umber of d ifferent factors to deter mine whether they include material provisions , in cluding (1 ) a statement about the co nsid eration f o r making the agreement, (2) a statement that the agreement c annot be c han ged o r varied w ithout the consen t in writing of e ach person making the will, (3) a r eference to the statute, and (4) a specific descr iption o f what the contract requir es in the even t of the d eath of the first per son making the con tractual will s. R ay v. Mc Maste r , 296 S. W .3 d 344, 347

– 48 ( Tex. App.

— Houston [1 st Dist .] 2009, pet. denied )

. H ere, althoug h the
wi ll does contain specific desc riptions o f what devises are to be m ade upon the d eath of the first spouse, it does not contain any statements abou t consid erati on for th e purported agree m ent, the
irre voca bility of the wil l absent both p art ies ’ written consent, or a reference to the statu te. Non e of the plain la nguage of t he w ill stat e s or impl ies that the parties ha ve a contra ct , and the will
d oes n ot itsel f constitute a contract.
John lastly points to his own tr ial t estimony in which he stated that Diane had
been “ negotiating ” with Pa t about th e provisi ons of the join t will . He te s t ified th at after Diane
had ex pressed that she “ wanted the ho meste ad ” t o r emain in her f a mily, Pat wanted something in

retu rn , which prompted the pr ovision in the will de vising the welding company ’ s equipmen t to
his nieces an d nephews. Addi ti ona l l y, John t estified that Dian e still “ wa nted more money, ” which prompte d Pat ’ s setting u p a n a ccou nt for her and depositi ng $1 38,000 i nto it, w hich had
i n creased to around $161,0 00 upon Pat ’ s dea th. In cont rast, Dian e testified that P at de posited15 $13 8, 000 into an a c count in solely he r name in e xchange for her signing a “ re le ase ” required b y the financ ia l institution into which Pat then deposited a much large r sum of funds , which

co nstituted the funds that John later d istributed to his sons, niece, an d n e phew. Alt ho ugh the parties may have had a n agreement about the way accou nt ownership was set up for these two accounts, tha t agreement does not equate to an agreement to execute the joint will

. Despite
Diane ’ s testimo ny that Pat threatened her with di vo r ce if she di d not sign the will, such alle ged

“ duress ” does not transform the joint will into a cont ract. Moreover, even if Pat and Diane had
been “ negotiating ” about their desires for how t heir property would pass upo n their respective deaths, n o evidence shows t hat any consideration was exch anged for Diane ’ s execution of the
will or that the will was non revocable or could not be amended absent both parties ’ consent.
W e const rue written instruments such as wills and contracts by con sidering
what i s c ontained w ith in the ir “ four corn ers ” and t he objec tive mea ning of the l anguage ac tually used, Coke r v. Coker , 650 S .W.2d 391, 393 (Tex . 1983) ( contrac ts); Merrick v. Helter , 500 S. W.3d 671, 674 (Tex. App.

— Aust in 2016, pet. denied ) ( wills) , and ext rins ic ev idence of
the parties ’ intent is not admis sible to create an a mbig uity , Plains Ex pl. & Prod. Co. v . Tor ch
En ergy Ad visor s In c. , 473 S.W.3d 296, 305 ( Tex. 2015)

. John has not argu ed that the will is ambigu ous , and we hold that it is not ambiguous wit h res pect to wh ether it is a contract

. As i t is

no t ambiguous and b eca us e the will does not meet the req uire ments of Sect ion 254.00 4 , the trial
court did no t err in determining that it i s not a contract. We overrul e John ’ s fifth iss ue. In hi s sixth i ssue , Joh n contend s that the trial court erred in de t ermining that the
will did not alter the p rovisions of fin ancial accoun ts having b eneficiary designations or ROS or POD provisions. He relies on the foll owing paragraph in the will:16 It is our intention to d is pos e of all p roperty (re al, personal and mixed ) wh ich we h ave the rig ht t o dispos e of by W ill per the bel ow categorie s in the manner desc ribed below based on who dies first or if we b oth die within 30 days of each other. This Wil l shall o verride any pri or a l locations desc ribed i n tr ust documents or a ny f inancial documents such as annu ities and certificates o f deposit.
John argues that the coup le ’ s assets at the time of Pat ’ s death in cluded fourteen fi nancial

accounts , t hat this p aragraph revoke d any POD o r RO S provisi o ns when t he will was executed,

a n d that the trial court could not h ave made the challenged l egal dete rmination absent ev idence
as to each individual account. W e dis agre e. The Estates Code specifie s that accounts having the following prov is ions or
att ri bu tes are n on - testa mentary transfe r s that are not s ubject to the tes tamentary provisions of th e code : ROS , POD , and convenience and trust accounts

. See Tex. Es t

. Code § § 113.15 1

– 15 3 , .155, .15 8 . The o nl y way to change the bene ficiary d esig na tions or type o f account ownership is
thro ugh wr itte n notice to the finan cial institut ion. See id. § 113.1 57

. T ransfers of property th at
occur p ursuant to the desi g nat ions of suc h acco unts are considered non

- testam e ntary, and the
Estates Co de expre ssly “ does not in va li date ” them. Id. § 111.052

. The trial court ’ s legal determ inat ion that the will did not alt er provisions of
financial acc ounts that had beneficiary de s ignation s (i. e., POD or ROS provisions ) is , e ssent ial ly ,

n othing m ore than a corr ect su mm ary o f th e ap pl icable law as explain ed just abov e. No eviden ce

a

bout t he individual accounts bel onging to the couple , Pat , or D iane was necessary to support this pu re legal determ ination that m erely restates the la w. Fur thermore, in the pr io r appe al
in vo lving th is es ta te, our si st er court determ ined t hat the will was testamentary in nature and
intended to tak e effect only upon th e testat or ’ s death ; it did not expres s a prese nt int ent for
immediate effe ct to include r evocation of the couple ’ s trust. See G ordon , 2 016 W L 1274076,17 a t *3

- 4

. By the same re asoning, the will

— b eing testamentary in nature rather than operating in praesenti

— does not operate to revoke any account de signation s or express any present intent to
do so
. We overr ule Jo hn ’ s sixth issue.
I n h is seventh issue , Jo hn c onte nds that the tr ial court erred in dete rmining that , to
the e xtent the w ill is legally effective to convey any property, it conveys only Pat ’ s on e - half
interest in the community pr operty. Th is determina tion is con sis te nt wi th t h e g eneral rule tha t a testator may dispose of only his sha re of community property , not the shar e of h is spouse

. See Langehennig v. Ho hm ann , 163 S.W.2d 402, 460 ( Tex. 19 4 2) ( holding that testator “ c ould not
make tes ta mentary disposi tion of th e h alf o f the co mmunity p roperty that belonged to his wi fe, and an intention to disp ose of what he did not own is n ot to b e imputed to him ” ) ; Marshall v.
Land , 41 3 S.W.2d 820, 823 (Te x. Ap p.

— Dalla s 1967, writ re f ’ d n.r.e .) ( “ It has long been the
settled l aw o f thi s state that nei ther spouse had the right to mak e a testamentary dispositio n of the
other ’ s interest in the ir com mu nity property. ” ) ; see also Wright v. Jo nes , 67 4 S.W.3d 704, 712 ( Tex. App

. — Waco 2023, no pet.) (n oting Te xas presumption t hat proper ty o wned by marri ed
perso ns is presumed to be community p roperty and that each spous e has undivided one

- half
inte res t in s uc h )

. A lthough , as John contends in his related eighth issue, a s o - called “ widow ’ s electi on ” exce ption to this gen eral rule applies whe n a tes ta tor ’ s will unequivocally di sposes of his sp ous e ’ s property , we agree with the trial cour t ’ s (a) i mp lied d etermination that the exception
d oes not apply here and (b) express dete rmination that Dian e did no t make a wido w ’ s election , for the simple r ea son t ha t ther e was no election for her to make

. 7 See Estate of Co le , No. 02

- 13

-

7 T h e det ermination that the ex ception does no t apply here is implicit in the trial co urt ’ s determ ination that the will convey s only Pat ’ s one - half inter est in t he comm unity prope rty be cause i f the will expressed the un equivocal inte n t of P at t o c onv e y D iane ’ s com m unity interest, it wo uld neces sarily convey more than Pat ’ s one - half interest

.18 00417

- CV , 2015 WL 392230 , at * 4

- 5 ( Tex. App.

— Fort Worth Jan. 29, 2015, no pet. ) (mem. op.) ( “ A surv i ving spouse is put to a n electi on to choose betw een a bene fit given her un de r a w il l t o

w hich she would not otherwise be entitled or to take h er half o f the community prop erty
inde pe ndentl y of t he will. ” ). Th e exception applies only when the test ator une q uiv ocally devi ses
prope rty that is not his own ( e.g., his spouse ’ s share o f comm u ni ty pro perty) while also providing in the will benefits for the d ispossessed spouse that sh e wo uld n ot oth erwise en joy.
See id. “ An elect ion is present if the te st ator cle a rly and unequi vocally s tated in the will that hi s i ntent w as to dispose of t he be ne f iciar y ’ s property such that the will ’ s only po ssible const ruction
is that the testator intended th at the bequests and de vises must be acc epted in lieu of the
homes tead and exempt persona l propert y rights

. ” I d. at *4 ; se e also Lon g v. Lo ng , 2 52 S.W.2d 235, 2 42 (Tex. App.

— Texar kana 1952 , writ ref ’ d n.r .e.) ( “ Th e doct rine of election by the wife appli es where t he will o f the husb and disposes of pro perty bel on ging to both spouses and a t the
same ti me makes provision for the wife to compen sate her for the loss of her rights or of ownership. ” )

. We presum e that the test ator int ended to dispose of on ly his own prope rty. Co le , 2015 WL 392230 , a t *4

. I f there i s ambiguity in the provisions of the will regarding the

testator ’ s intentio n or if the wil l ’ s prov isions le ave the court una ble to say either that it

c onclu siv ely a ppears that the intention of the testator was to dispo se of the entire c ommunity

es tate or t h at the language used is fairly susceptib le of no other constructio n, then the
pres umption is not overcome, and we will hold that the will disposes o f the t est ator ’ s property and interests only. See Long , 252 S.W. 2d a t 242 ( “ [I]f the language use d is susc e ptible of two constructions, then we mus t adopt the one which is i n keepin g with t he gene ral rule of
presu mption that a tes tato r did not i nten [d] to d ispos e o f any property not his own. ” ). A plain19 reading of the will in its entirety does not co n clusively establish an intention by Pat to dispose of the entire community e state

. The prov isions of the w ill perti nent to th is issu e are the following:

The pu rpose of this joint Last Will and Testament is to allocate the comb ined assets of PATRICK and DI ANE GORD O N depending on who dies first or if both die wit hin 30 days of each other A ND to id entify assets w hich are not to be conside red jointl y a part of the e state

. I t is our intention to dispose of all property (real , person al and mixed) which we have t he right t o dispose of by Will per the below categ ories in the manner descri bed belo w based on who dies fir st or if we both die withi n 3 0 days of each other

. T his W ill shal l override any p rior allo cations described in trust do cuments or any financial docu ments su c h as annuities and certificates of deposi t. Category A [ first iden tifying the coup le ’ s t w o parcel s of real property and the n continui ng, ] The intent o f thi s j oint will is for t he [real property] to be directed toward DI ANE GORDON ’ s direct heirs. The inte n t of this will is to allow Helen B unte [D iane ’ s mother] t o continue living in the r esidence on [ certain id e ntified real pro perty ] free of ch arge for t he re mainder of her life. Category B This category shall co ns ist of all of the . . . [earlier de fined] “ steel bus iness equ i pment

. ” The intent of this joint will i s for the “ steel business equi pmen t ” to be retain ed by PA TR ICK G OR DON until he no l o nger de si res t o own su ch equipment

. Category C This category shall consist of all, non

- excl uded, financial [ accounts ] t h at are in d ividuall y or jointly owned in trust or s eparate

. . . . Category D This ca tegory shall co nsis t of

. . . [a n identified brok erage ac co unt o r any ot her] that is set up to hol d only estate inheri tances and gi fts of inher itance that PATR ICK GORDON ha s or will rece ived [sic] from his father . . . or uncle

. .

. . Th e intent of thi s joint will is for [th is categ ory] to b e passed on 100% to PATR I CK GORD ON ’ s thr e e nephews a nd niece after his death

— 25% to each. Category E This cate gory shall consist o f . . . [ an identi f ied brokerage account or an y other ] that is set up to hold only es tate inh eritances and g ifts of inheritan ce that DIANE GOR DON has or will receive d [sic] from her f amily or is allocated f rom inheritance from PAT GORDON ’ s fa ther . . . or uncle. . . . T he intent of this will is for [this ca tegory] to b e passed 100% on as part o f DIANE G ORDON ’ s estate to her designate d benef iciaries .

. . . C at e gory F This category sh all consist of all

. . . tangible articles of a personal na ture

.20 If PAT GORDON dies fi rst: CATE G ORY A

— . . . shall be retained by DIANE G ORDON w ith clear and free title. C ATEGORY B

— . . . shall b e liquida ted and the proce eds allo ca ted t o PAT G O RDON ’ s desig nated beneficiaries.
(Emp hases added.) The com bination of the earlier stateme nt in the will that Pat and D iane
int e n d to dispose of the property “which we h ave the right t o dispose o f by Wil l ” w ith the lat er statement that , in t he ev en t Pa t pr e decea ses, the Category B prope rty s h all be allocated to his “designated beneficiaries ” (w hic h are later identified as h is three n e phe w s and one niece) at most
create an ambiguity abou t whether P at inten ded to dispose of Diane ’s share of com mu nit y
prop erty (i.e. , her half interest in th e C ate gory B property). N one of the other provisions
evide nce any purported intent by P at to dis p ose of Diane ’s share of community proper ty.
Because th e purported conveya nce of D iane ’s community

- propert y shar e is e q u ivo cal, at be st,
we conclude that the presump tion st ands: Pat is deemed to have intended to conve y on ly the property he ha d a legal rig h t to convey, that is, his share of the c ommunity intere st in the
C ategory B pr operty. 8 See id

. A c cording ly, the “w id ow ’s electi on ” ex ception does not apply,
Diane was not put to an election, and Diane did not make an election because there was no
electio n for her to make as a matter of l aw. We overrule John ’s seventh and eighth issues

. In h is nin t h issue, J ohn cont en ds t hat the tri al court e rred in de termining th at ,

“ [ b ] ecause the W ill does no t have a re siduary clause, any re covery by [ th e e state ] on the cause of
action for un j u s t enri chment would pass by in testate succession ” to Diane, Pat ’ s “ sole heir at

8 Further more, the evid ence established that the welding

- business equipment (Cate gory B ) was owned by the trust both when the will was executed a n d a t th e time of Pa t ’ s death, and that Pat was aware of such owne rship. Thus, even i f parol ev idence were admissible t o discern Pat ’ s intent , such evidence would support the trial court ’ s conclusion that the will does not demonstrate an intention by Pat t o dis po se of t he en tire community estate

.21 law

. ” He c ontends t hat this statement in the judgment is “ irre levant to the is sues nece s sary for entry of a fina l jud gment ” and “ is not supported by any plea ding. ” By this issue, Jo h n is mer ely restating h is argument made in his th ird iss u e c h al leng ing the jury ’ s f inding th at Diane was not unjustly enriched , wh ich i ssue he did not pres erve
. However , even if t h is s tatement by the trial
court is sup erflu ous an d unsupported by any plea d ing, Joh n has not iden t ified how he has been harmed by i t , as i t i s a t rue stateme n t under a pplicable law. See Tex. Est

. Code § § 20 1. 002 (providing fo r intesta t e succession of sep arate estate of intestate decedent with su r viving sp ouse),

. 003 (providi ng for intest ate succ es sion of commu nity estate of in testate d ecede nt with sur v iving
sp ou se ) ; Estate of York , 934 S.W.2d 848, 850 (Tex . App.

— Corpus Christi

- Edinburg 1996, wr it
denied ) ( observing that w h ere w ill contain s n o residuary clause , estate prop erty not otherwise bequeat h ed ther eunder passes t o dec edent ’ s he ir s by intestac y)

. We over ru le John ’ s n inth issue.

T

he issue of attorney ’ s f ees In his tenth an d fin al issue, John contends that the t ria l court erred in awarding
Diane attorney ’ s fees of $111,249.50 , which is t he full amount she requested and that i s det ailed
in the billing stat ements the court admit ted into evidence. John takes iss ue with the award o n
t hre e ground s , which we have reor dered : (1) the tri al court erred in mak ing him pe r sona lly liable
for the atto rney ’ s f ees , ( 2) Diane did not segr eg at e f ee s pertai ning to obtaining removal of him as

exe cutor from fees incurred on other iss ues for which she i s not entitl ed to recovery of fees , and ( 3 ) the re is no evidenc e that the award of con ditional appellate atto rney ’ s fe es is reaso nab le
and necessa ry
. As to Jo hn ’ s first argumen t, the Estates Code expressly provi des for a pe rs on al
repre s entative ’ s lia bili ty , and for h is sureties ’ lia bility, for cost s of removal and reason able22 attorne y ’ s f ees incurred in removin g the re presentative i f the represent at ive “ neglects to perform
a requ ired duty or is re moved for cause. ” Tex. Est

. Co de § 351.0 03

. We hav e affirm ed the
tria l court ’ s judgment removing J ohn f or cause, which removal triggered S ec t ion 351.003 ’ s applicat ion , and t h e availability of attorney ’ s fe es un der a pa rt icular statute i s a question of law
for the court , see Holland v. W al

- Mart Stores, Inc

. , 1 S .W .3d 91, 94 (T ex. 1999) . We c onclude
tha t, on the basis o f the plain text in Sec ti on 351.003 , Diane is en titled to a n award of att orney ’ s fee s ag ai nst J ohn in h is individual capa city

. 9 See In re Estate of Vrana , 335 S.W.3d 3 2 2, 327 (Te x. App.

— San Antonio 201 0, pet. d enied ) (construi ng fo rmer v ersio n of this statute to pe rmit

co urts to assess reasonable attor ney ’ s fees against per so nal representati ve in i ndividua l c apacity).
As for John ’ s se c ond argument, it is true that whe n a statute authorize s attorney ’ s fees, a fee claimant has the burden to s egregate fees between claims for wh ich they are
recoverable a nd c laims for which the y are not. See T on y Gul lo Motor s I, L.P. v. Chapa , 212 S.W.3d 299, 311 (Tex. 2006)

. An exception to the duty to segre gate exist s “ when d iscrete legal serv ices advance bot h a recoverable and unrecoverable c lai m that are so intertwin ed that they need not be segregated. ” I d. at 3 13

– 14

. T h e party seeking t o recover its fees bears the
burden to show tha t segregation is not required. Clearvie w Props., L.P. v. Property Tex. SC One Corp. , 287 S.W.3d 132, 144 (Tex. App.

— Ho ust on [14 th Dist .] 2009, pet. denied ). Whether and
the ex tent to which attorney ’ s fees ca n be s eg regat ed is a mixed question o f law and fact , and if

9 John also argues that Diane failed to ple ad for attorney ’ s fe es beca u se the body of her origi nal peti tion for rem oval does not c ontain a s ecti on specificall y r e q uesting that attorney ’ s fees be im posed against h i m indi vi du ally , argu ing that her request for attorney ’ s fees appears only in the prayer of her petition in g enera l fo rm ( seeking an award of “ reas onable attorney ’ s fees and costs of court ” ). But such req ue st is permissible. S ee Tull v. T ull , 159 S. W.3d 7 5 8, 76 2 (T ex. App.

— D allas 2005, n o pet.) ( “ A general request for at torney ’ s fees in the pra yer of the pleadi ng is itself s ufficient to autho rize th e aw ard of attorney ’ s fee s. ” ). Moreover, Diane ’ s origina l petition for removal name d John in his individual c apa ci ty a nd cited t he predecessor of Texas Estates Code Sect ion 404.0035(b) , which authorizes removal for c ause.23 segr egati on is pos sible, re mand is required

. Chapa , 212 S.W.3d at 313 ; Osborne v. Jauregui,
Inc

. , 252 S.W.3d 70, 76 (T e x. App.

— A ustin 2008, pet. denied)

. Dia ne argu es that removal of Jo h n as ex ecutor has bee n “ the primary objective ”
of her co unsel , Robert Avera, and has been th e “ only thi n g that will finally bring this litigatio n to
an end

. ” Sh e a rgues that every inter l ocutory victory she has receive d and eve ry hour spent b y her attorney s in th is case result ed in “ further e vidence ” of John ’ s gross mismanagement and
misco nduc t a nd that eit h er there is no duty to segr egate because “ all fees [ she] inc urred helped prove the case fo r removal ” or the fees “ not direc tl y r el ated to that task were so in e xtricably
int e rtwined that they need not be seg re gated. ” She cit es Avera ’ s af fidavit and hearing tes timony supporting her request for at torney ’ s fees

. I n his affidavit, Avera states that Jo hn ’ s “ gross misconduct inc lu ded e ach and every motion and pleadi ng which was filed by him in which Diane Gord on as defendant was
forced to def end t hrough litigati on. Every motion that was decided in Diane Gordon ’ s favo r provided for an award of att orney fees. ” He further aver s th at all fees inc urred by Diane “ were in extricably i nter twined with removal of Jo hn , ” a nd that the “ jury hear d evidenc e of such
motions an d these results were used as a basis of the allegation th at John Gordon engaged
in gros s misconduct. ” At the hearing on a ttorn ey ’ s fee s, Avera testified simi larly , again

re presenting that he “ presented to the jury ” evidence of “ every ruling that we a cquir ed from the Court previously to show that [John] was enga ged in gross mi s cond uct by con tinuing to take legal positions t ha t wer e not su stainable , ” that caused the case t o span over ten years , and which
Jo h n lost. However, at the jury trial, n ei ther party presented evidenc e of any of the num erous motions a nd ple adings filed by John or of th e trial court ’ s rulings thereon ; a t best, Avera a lluded
to some of the i ssues on wh ich John “ lost ” when he cro ss - exami n ed him , and Jo hn admitted that24 he “ l ost ” some of them, but there were no specifics, an d none of the pleading s, motions , or rulings were offered into evidenc e. On cross

- ex amina tion at the hear ing on att orney ’ s fees , Avera admitted that a t
least two of Jo hn ’ s motions to co mpel deliver y of esta te property

— which motions Avera
defe nded Diane against

— were granted b y the court

. Avera als o admitted that he had in curred
some fee s in th e beginn ing of the case pertain ing to his filing of a plea in abatement and a pl ea to the jurisd icti on befor e he filed the petition to remove John as executor

. When John ’ s counsel
ask ed him to confirm that th ose pleas were d en ied, Av era stated that h e cou ld not r eme mber ; however, those fees were included in the exhibit he f iled and in the total amount o f fee s t hat the
court awarded

. Aver a filed his petition to remove John in 2013, but t he issu e did not go to trial
until 2022. When qu estioned about w hy he did not more di li gently pursue the removal petition during th at near decade , Avera explained that t he tr ial court “ didn ’ t want to rule on any other issues until the appeal of our origin al firs t motion for sum mary judgment was ruled on by the
Su prem e Court as to w he ther or not the will revoked the trust. ” 10 When queri ed about why he
defended a gainst a pe tition f or writ of mandamus that John ’ s counsel filed to challenge the trial

court ’ s r efusal t o rule on other issues pending appeal of the t ru st

- revo ca tion issue an d h ow that
proce eding p ertained to r emoving John , Avera replied that J ohn “ has not been agre e ing w it h the rulings of the Court ” and that John “ refused to acknowledge the fact tha t

— becaus e the will did not revoke the trust, it wou ld also not re voke non - pro b ate asset de signations , which I felt like we
needed in order to resolv e the case. ” Avera co ntinue d to litigate the issue of whether the will
revoked the non - probate beneficiary desi gnat ions be cause th e trial court “ did not want to put on

10 The supreme court denied review of that case on September 23, 2016

.25 ev id ence of the f ull trial of all issue s , including removal, ” until some of t he legal d eterminations
had been made , w hich he stated delayed trial of the removal issue.
Avera testified that it was not his delay , but John ’ s pursuit of un successful and

“ fri vo lou s ” claims , that caused his fees to accrue in his representation of Diane

. However ,

a lthough Avera bel ieved that Diane incurred all her expenses because she needed to defend against John ’ s many claim s a nd mo tions , and that the prosecution of such un su cc essfu l claims
was further evidence of John ’ s gross mi sconduct and mismanagement , at n o time during th e near decade of litigation did Avera oppose any of Jo hn ’ s filings as fri vo lous or seek an y sanctions
th erefo r. Although Avera previously testified that s ome o f the is sues were “ novel” and req uired an appeal

— e.g., the issue of whether the will r evoked the trust

— on cros s - examination he clarified that it was only “ novel ” in the sense that no lit igant ha d ever appe aled the issue because
it w as s uch a “ straig ht forwa rd ” and “ basic tenet of wills ” la w. Having revi ewed the record, we cannot co nc lude that all th e fees outline d in the

ex hibits attached to Avera ’ s affidavit were incurred in removing Jo hn as execut or or w ere inex tricably inter twined with removing h im

. Se e Tex. E st

. Code § 351.0 03 ; Chapa , 212 S.W.3d
at 31 3

– 14

. Although we ag re e with Diane that s ome of those bill ings encompass tasks that are not directly r elated to obta ining John ’ s re mova l but are nonet heless inextricably inter twined with

ta sks that w ere p erformed in furtherance of removi ng him, we cannot say that is the case for all

t he billings , and the billings re flect some fees incurred solely for claims other than removing
John. 11 However, it is not our province to make such determinations in th e first in stanc e. See

11 As representative examples, some of tasks listed in the billings ’ d es crip ti on s included reviewing , drafting, and r esp onding to disc overy ; researchin g and drafting summary

- j u dgmen t motions an d respons e s; re searching and responding to motions to compel and attending hearings t herefor; and reviewing and responding to motions t o in te rv ene filed b y other beneficiaries

.26 Brazoria Cnty. Im aging Center, LLC v. Celes te Inv. Grp. Angleton , LLC , N o
. 14

- 21

- 00485

- CV , 202 3 WL 4570482, at * 5 (Tex. App.

— Houston [14 th Dist.] July 18, 2023, no pet

. ) (mem. op.) (reve rsi ng and remanding issue of attorney ’ s fees fo r party ’ s failu re to segregate, despite

couns el ’ s co nclusory testimony that unrecoverab le claims wer e “ so inter twined with all the
others , ” for party ’ s f ailure to meet burden to show that se gregation was not r equired) ; Clearview Props. , 287 S.W.3d at 144

– 4 5 (reve rsing an d remanding issue of atto rney ’ s fees award a fter concluding that party d id not meet b u rden of showing that fees were segregable by either party or
claim to allow party to prop erly prove attorney ’ s fees ) ; s ee also Metal Bldg. Components, LP v

. Raley , No. 03

- 05

- 00823

- CV , 2007 WL 743 16 , at *18 (Tex. App.

— Austin Jan. 10, 2007, no pet. ) (mem. o p .) ( reversing an d remanding attorney ’ s fees issue , in part, where record did not reveal
h ow trial court perf ormed its segregation analysis). Accordingly, we sust ain this portion of
John ’ s tenth issue. We also agree with John with respect t o his third a rgument contendin g that the
trial court ’ s award of con ditional appellate attorney ’ s fees is unsupported by l egally sufficient

ev idence

. To recover conditi on al ap p ella te at t orney ’ s fees, a claim a n t needs to p ro vide opi nion testimony ab out the s ervices it r easonably believe s will be necessary to defen d the appeal and a
reasonable ho urly rate fo r those services. Yowell v. Grani te Op er ating Co. , 620 S.W.3d 335 , 35 5 ( T ex. 202 0)

. Avera ’ s affidavit and testimony do not provi de detail ab out any such tasks f or a n appeal before th is Court or for any proceedi ngs before the supreme court ; in stead, Diane ’ s attorney testifi ed as to two lu mp su ms (one for an appeal to th is Cour t and on e for an appeal to the sup reme court) based on his experience and in his opin ion. Cf

. id

. ; Jimmie Luec ke Chi ldren

Each of these billin g s entries might reasonably relate solely to r e moving John, sole ly to other iss ues, or might be inextricably intertwined with removing John an d with other issues

.27 P ’ ship, Ltd. v. Droemer , N o. 0 3

- 20

- 000 9 6

- CV , 2022 WL 243162, at * 8 (Tex. A pp.

— A ustin
Ja n. 27, 2022, pet. denied ) (mem. op.)

. Th e aw a r ds of c onditional appellate fees are therefore

not supported by legally sufficie nt evide nce a nd must be revers ed and remanded for

re determination , and we sustain this p ort ion of John ’ s t enth i ssue
. See Droemer , 202 2 WL 243162, at *8 (re ver sing aw a rd of c ontingen t appellate a ttorney ’ s fee s for legally ins ufficient
evid ence due to s imi l ar deficiency as here and rem anding issu e fo r redetermination).

C ONCLUSION
We revers e the po rtion of the trial court ’ s judgment awa rding trial and app ellate

attorne y ’ s fee s to Dia ne and remand the cause to the trial court for r edetermination of atto rney ’ s fees. We affirm the trial c ourt ’ s ju dg me nt in all othe r respects.

_______ ______ _____ _

____________________ ___ Thomas J. Baker , Justice
B e fore Justices B aker, Kelly, an d Smith
Affir med in Part ; R e versed and R em anded in Part
Fil ed: May 2 3 , 2024