Courts Hold That Fiduciaries Waived Complaints About Trial Court Orders

by Winstead PC

In In re Estate of Roach, a trial court removed an executor for multiple grounds, including: (1) Texas Estates Code Section 404.0035(b)(5), which authorizes removal when an independent executor becomes incapable of properly performing his fiduciary duties due to a material conflict of interest, and (2) Section 404.0035(b)(3), which authorizes removal when an independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of his duties. No. 07-16-00315-CV, 2017 Tex. App. LEXIS 4028 (Tex. App.—Amarillo May 3, 2017, no pet. history). The executor appealed but only expressly challenged the conflict-of-interest ground.

The court of appeals noted that an appellant must challenge all independent bases or grounds that fully support a complained of ruling or judgment. It stated that “[i]f an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground, and thus any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment.” Id. The court of appeals affirmed because the executor waived his appeal by not challenging one of the grounds that supported the trial court’s order. The court held that where one of the independent grounds that fully supports a trial court’s order has not been challenged, the appellate court need not address the evidence supporting this unchallenged ground:

Removal of an independent executor of an estate may be ordered by a court if the independent executor, inter alia, is proven to have been guilty of gross misconduct or gross mismanagement in performance of his duties, see section 404.0035(b)(3), or becomes incapable of properly performing his fiduciary duties due to a material conflict of interest, see section 404.0035(b)(5). The trial court’s finding that Tom engaged in gross misconduct and gross mismanagement by failing to pursue claims under the Roach Oil note and causing Ashtola to overcharge Rosemary and the estate is an independent ground that fully supports the trial court’s removal of Tom as independent executor. As such, any error resulting in the trial court’s finding of a material conflict of interest is harmless and we must affirm the trial court’s removal of Tom as independent executor on the unchallenged ground that he was guilty of gross misconduct or gross mismanagement.


In Barcroft v. Walton, a trustee and executor appealed a trial court’s turnover order. No. 02-16-00404-CV, 2017 Tex. App. LEXIS 4078 (Tex. App.—Fort Worth May 4, 2017, no pet. history). The fiduciary did not file a complete reporter’s record of the hearing on the motion for turnover order and otherwise did not comply with the rules of appellate procedure governing agreed or partial reporter’s records. The court of appeals held that it “must presume that the omitted portions of the reporter’s record support entry of the September 19, 2016 turnover order.” Id. The court concluded: “Presuming the omitted portions of the reporter’s record of the September 19, 2016 hearing support the trial court’s entry of the September 19, 2016 turnover order, Barcroft has failed to show an abuse of discretion in any of his three issues. We therefore overrule them and affirm the trial court’s order.” Id.

Interesting Note: Attorneys specialize in numerous areas of the law. One type of specialization is appellate law. For example, there is a Texas Board of Legal Specialization certification in appellate law. The procedural requirements for an appeal are very complex, and clients should make sure that their trial attorneys enlist the assistance of qualified appellate lawyers when they engage in an appeal. The ramifications for not doing so can be seen in these cases. The parties attempted to appeal orders on substantive arguments, but the court of appeals did not have to address the merits of the appellants’ arguments due to their trial counsels’ failure to properly brief the appeals, obtain an adequate record, and challenge all potential grounds upon which the order could have been sustained.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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