                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00355-CV
                               __________________

                     AMY ANNE SHOULDICE, Appellant

                                         V.

     CHRISTINE ELIZABETH VAN HAMERSVELD AND JOHN D.
                     THOMPSON JR., Appellees
__________________________________________________________________

             On Appeal from the County Court at Law No. 2
                     Montgomery County, Texas
                     Trial Cause No. 17-35611-P
__________________________________________________________________

                          MEMORANDUM OPINION

      This is an appeal from a final judgment admitting a will to probate. In five

issues, Amy Anne Shouldice contends the trial court erred by: (1) imposing

sanctions on Shouldice for her attorney’s misconduct; (2) finding that the will

contest was filed in bad faith, waiving trial by jury, and imposing case-determinative

sanctions against Shouldice; (3) awarding over $227,000 in attorney fees on legally

and factually insufficient evidence; (4) failing to grant Shouldice’s motion for new
                                          1
trial and in striking her supporting exhibits for the motion for new trial; and (5)

holding Shouldice in contempt for failing to obey a previous sanctions order caused

by her attorney’s misconduct.

                                   Background

      In 2009, Mary E. Thompson amended a trust agreement and executed a new

will. The new will contained a will contest clause. After Thompson’s death in 2017,

Shouldice filed a will contest in the probate proceedings initiated by Shouldice’s

siblings, Christine Elizabeth Van Hamersveld and John D. Thompson Jr. During the

pendency of the case, Shouldice’s failure to timely comply with discovery requests

resulted in deemed admissions and sanctions.

      The trial court granted a traditional motion for summary judgment against

Shouldice’s claims on testamentary capacity and a no-evidence motion for summary

judgment on her claims of undue influence to defeat the no contest clause. The trial

court granted Shouldice’s motion to reconsider her claims of undue influence but

then granted the motion for summary judgment after Shouldice filed a summary

judgment response with no evidence attached.

      In a hearing held on July 5, 2018, the trial court ordered Shouldice to submit

to a deposition and turn over to the opposing party information about unidentified



                                         2
persons Shouldice used as a basis for obtaining a continuance. 1 The trial court

reduced the order to writing on July 9, 2018.

      The trial court held a contempt hearing four days before the date set for trial.

The parties agreed to drop criminal contempt charges in exchange for an agreement

to hear the motion for civil contempt that day and have the trial on July 30. Opposing

counsel testified at the hearing that Shouldice failed to disclose to him the Jane Doe

information ordered by the court. Shouldice testified that she was present for the

entire July 5, 2018 hearing. She admitted she was at that time aware of the identities

of the Jane Does but on advice from counsel, she refused to provide that information

when she was deposed later that same day. Additionally, Shouldice could not recall

why she failed to appear for previous court-ordered depositions. The trial court

found Shouldice in contempt of court for failing to comply with the court’s order

and ordered Shouldice to pay $9,505 by 5:00 p.m. on July 30, 2018, to reimburse

some of the opposing party’s attorney’s fees. The trial court ruled that except for




      1
         Shouldice’s lawyer requested a continuance in part because she claimed to
have recently learned that Shouldice and the unidentified persons, referred to as Jane
Doe number one and Jane Doe number two, had just come forward with allegations
of past victimization by Thompson. Although counsel suggested that the allegations
could be relevant to the decedent’s state of mind, Shouldice testified that her parents
were unaware of Thompson’s conduct.
                                           3
Shouldice herself, any witnesses or legal theories not fully disclosed in her response

to request for disclosures would be inadmissible in the trial.

      Neither Shouldice nor her attorney appeared for the trial at 8:30 a.m. on July

30, 2018. The trial court waited until 10:30 a.m. before granting Van Hamersveld’s

and Thompson’s motion to waive a jury trial and proceeding with the trial without

Shouldice or her attorney present.2 Van Hamersveld and Thompson proved up the

will based on affidavits and deemed admissions. They submitted invoices and their

attorney testified that the fees in the invoices were the usual, customary, and

reasonable fees charged in Montgomery County for this type of work. He attributed

the extensive attorney’s fees in the case to Shouldice’s lawyer’s poor behavior,

which he testified included failing to fully answer discovery, failing to appear for

depositions, and failing to honor a Rule 11 agreement to disclose information. He

also testified that he was precluded from taking other employment during the case.

He asked for $207,906.30 for pre-trial, $15,000 for trial, $50,000 in the event of an

appeal, and $10,000 in the event of a motion for new trial. The $207,906.30 figure



      2
         At some point on July 30, 2018, Shouldice’s lawyer filed a motion for
continuance in which she claimed to have been in the hospital on July 27 and 28,
2018. In her appeal, Shouldice does not argue that the trial court abused its discretion
by failing to grant the motion for continuance, but her trial counsel’s medical
emergency was presented as a ground for relief in Shouldice’s motion for new trial
and is addressed in her appellate brief under issue four.
                                          4
on the invoices included $35,000 for the trial, fees for work regarding the contempt

motions, fees for travel billed at a full hourly rate, expenses awarded elsewhere in

the case, fees for secretarial work, and fees for work by associates and a legal

assistant about which there was no supporting testimony.

      In the final judgment, the trial court found Shouldice did not file her will

contest in good faith and with just cause. The trial court rendered judgment finding

no merit to Shouldice’s claims regarding undue influence and lack of testamentary

capacity and intent and ordered that she take nothing of her claims. The final

judgment included findings that Shouldice and her attorney acted in bad faith when

they failed to comply with court-ordered discovery and failed to appear for trial. The

trial court found Van Hamersveld and Thompson opposed Shouldice’s contest with

just cause and in good faith. The trial court rendered a judgment declaring that the

decedent possessed the requisite mental capacity to execute her will and the amended

trust, that Shouldice violated the will’s no-contest clause, and awarded attorney’s

fees in the amount of $222,906.30 pursuant to Sections 353.051–.053 of the Texas

Estates Code and Section 37.009 of the Civil Practice and Remedies Code, plus

$10,000 for any unsuccessful motion for new trial as to the declaratory relief, and

$50,000 for any unsuccessful appeal.



                                          5
      On September 4, 2018, Shouldice filed a motion for new trial. The motion

alleged that counsel left messages explaining her dire medical situation and her

delayed flight and filed the emergency motion for continuance upon arrival. She

requested a new trial because her failure to appear for the trial was unintentional.

Additionally, Shouldice alleged that she believed the motion for contempt had been

filed in retaliation for her filing for a protective order against her brother John. She

complained that requiring her to sit for a deposition the day before trial was an abuse

of discretion that served no valid purpose other than to prevent her from preparing

for trial. She complained that the judge ruled on the no-evidence motions for

summary judgment when there had not been adequate time for discovery. Shouldice

attached no documentation to her motion.

      On September 7, 2018, Van Hamersveld and Thompson requested Rule 13

sanctions. On September 13, 2018, the trial court found that Shouldice’s counsel

filed groundless submission notices without also filing the corresponding motions,

held seven submission notices were groundless and filed with no basis in law or fact,

ordered Shouldice and her lawyer to e-file the actual motion before obtaining

submission or hearing dates, and required them to provide at least ten days’ notice

of any submission or hearing date.



                                           6
      On September 13, 2018, Shouldice filed a notice of submission of the motion

for new trial for October 4, 2018. Shouldice attempted to e-file supporting

documentation on the day of submission, but the trial court struck the filing as a

violation of the trial court’s Rule 13 order to file ten days before submission.

      The trial court also ordered Shouldice to personally appear on October 4, 2018

and show cause why she should not be held in contempt for failing to comply with

the trial court’s order to make a pre-trial tender of $9,505.00 to opposing counsel.

On that date, while an attorney appeared for Shouldice’s lawyer, he did not explain

why Shouldice failed to pay $9,505.00 as ordered. Shouldice failed to attend. The

trial court issued a writ of attachment and ordered Shouldice to pay an additional

$2,950.00 to the opposing parties’ counsel.

      After perfecting her appeal, Shouldice retained new counsel. In her appellate

brief, Shouldice insists she brought a will contest in good faith because she had

reason to believe that Van Hamersveld and Thompson exercised undue influence

over their mother, but she concedes that her response to the no-evidence motion for

summary judgment failed to raise a fact issue.

                                   Partial Record

      Van Hamersveld and Thompson argue that Shouldice requested a partial

record and they are entitled to a presumption that the omitted record supports the

                                          7
judgment because Shouldice failed to file a statement of points. See Tex. R. App. P.

34.6(c). We find no request for a partial record by Shouldice. It appears, however,

that exhibits were omitted from the reporter’s record when it was filed in the Court

of Appeals. We requested the exhibits that we determined were necessary to resolve

the issues presented in the appeal. See Tex. R. App. P. 34.6(d).

                                      Sanctions

      In issue one, Shouldice contends the trial court abused its discretion by

imposing sanctions on her for misconduct attributable solely to her attorney. Before

imposing sanctions for discovery abuse, a trial court must at least attempt to

determine whether the offensive conduct is attributable to counsel only, the party

only, or both. TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991). Shouldice argues that the record shows none of the conduct resulting in

sanctions is attributable directly to her, but Shouldice was personally present for the

July 5, 2018 hearing that resulted in her being ordered to disclose information about

the Jane Does. Later that day she refused to disclose the information in her

deposition. The trial court could reasonably have attributed some of the discovery

abuse directly to Shouldice. See id. We overrule issue one.




                                          8
                                 Trial Proceedings

      In issue two, Shouldice complains that the trial court erred by not conducting

a jury trial, in granting case-determinative sanctions, and in rendering judgment that

she filed her will contest in bad faith. Neither Shouldice nor her attorney appeared

when the case was called to trial. The docket sheet indicates an emergency motion

for continuance may have been filed before the trial court rendered judgment but the

record does not show that an emergency motion for a continuance was brought to

the trial court’s attention. As a prerequisite to complaining about the denial of a

motion, the record must show that the motion was brought to the trial court’s

attention and that the trial court either denied the motion or refused to rule on the

motion and the complaining party objected to the refusal. Quintana v. CrossFit

Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.); see also

Tex. R. App. P. 33.1(a).

      Van Hamersveld and Thompson moved to waive a jury without an objection

from Shouldice. A party who has properly requested a jury trial but fails to appear

at trial waives the right to a jury trial. Bradley Motors, Inc. v. Mackey, 878 S.W.2d

140, 141 (Tex. 1994). “Failure of a party to appear for trial shall be deemed a waiver

by him of the right to trial by jury.” Tex. R. Civ. P. 220. Consequently, Shouldice



                                          9
has not shown that the trial court erred by granting the motion to waive a jury trial

and proceeding with a bench trial.

      Shouldice argues the trial court erred by granting a default judgment, which

she contends functioned as a death penalty sanction. Van Hamersveld and Thompson

proved up the will in part based on deemed admissions.3 See Tex. R. Civ. P. 198.2(c)

(“If a response is not timely served, the request is considered admitted without the

necessity of a court order.”). A deemed admission is conclusively established as to

the party making the admission unless the court permits the party to withdraw or

amend the admission. Tex. R. Civ. P. 198.3. In this case, the trial court did not err in

rendering judgment based on deemed admissions because Shouldice did not file a

motion to withdraw the deemed admissions. See id.

      To support her argument on appeal that she filed her will contest in good faith,

Shouldice relies on her response to Van Hamersveld’s and Thompson’s pre-trial no-

evidence motion for summary judgment on her claims of undue influence. The trial

court granted Shouldice’s motion to reconsider the summary judgment and

considered her subsequent response before granting summary judgment on that issue



      3
        In addition to relying on the deemed admissions, Van Hamersveld testified
in support of her probate application and the trial court considered deposition
testimony in which Shouldice admitted she was unaware of any point in her mother’s
life when her mother could not understand that she was making a will or trust.
                                         10
on July 24, 2018, six days before the trial. The summary judgment response

mentions the decedent’s medical records, but no records were properly attached to

the response to the no-evidence motion for summary judgment to be considered as

summary judgment evidence in support of her claims. We cannot consider the

records because neither the summary judgment response nor the documents

referenced in the response were admitted in evidence in the trial. Noble Expl., Inc.

v. Nixon Drilling, Co., 794 S.W.2d 589, 592 (Tex. App.—Austin 1990, no writ)

(holding that documents attached to a reply to a motion for partial summary

judgment but not introduced into evidence in the bench trial may not be considered

on appeal). We overrule issue two.

                               Motion for New Trial

      In issue four, Shouldice contends the trial court abused its discretion by

striking the exhibits supporting her motion for new trial, which she argues establish

that her failure to appear for trial was not due to conscious indifference. Shouldice

further contends it was an abuse of discretion to deny her motion for new trial. In

the final judgment, the trial court found that the failure of Shouldice and her attorney

to appear for the trial “was not the result of excusable neglect, accident, or mistake,

but instead was the result of conscious indifference and contumacious conduct



                                          11
exhibited by Shouldice and her [attorney].” Shouldice maintains the record does not

support the trial court’s findings.

      We find inadequate support in the record for Shouldice’s arguments.

Shouldice attached no supporting affidavits or documentation to her motion for new

trial. Shouldice’s notice of submission stated that no hearing would be conducted on

the motion for new trial unless a hearing was requested. On September 13, 2018, the

trial court ordered Shouldice to file the actual motion with the notice of submission

and provide at least ten days’ notice of any submission date. Shouldice had more

than ten days to seek leave of court to amend the motion for new trial but failed to

do so. See generally Tex. R. Civ. P. 329b(b). The trial court sustained Van

Hamersveld’s and Thompson’s objection to Shouldice’s “untimely filed exhibits”

with regard to the motion for new trial because they were filed on the submission

date. Shouldice did not make a bill of exception or offer of proof and the documents

she claims would contradict the trial court’s findings do not appear in the appellate

record. See generally Tex. R. App. P. 33.

      Given the lack of evidentiary support, the trial court did not abuse its

discretion by denying the motion for new trial. Estate of Pollack v. McMurrey, 858

S.W.2d 388, 392 (Tex. 1993) (holding that a motion for new trial following a default



                                         12
judgment must allege facts which in law would constitute a defense and must be

supported by affidavits or other prima facie evidence). We overrule issue four.

                                     Contempt

      In issue five, Shouldice complains that she has been held in contempt for

failing to obey a previous sanctions order caused by her attorney’s misconduct. In a

July 26, 2018 hearing, the trial court found Shouldice to be in contempt of the trial

court’s discovery orders and ordered her to pay $9,505 to opposing counsel by July

30, 2018. Contempt judgments are not subject to ordinary appeal. Metzger v. Sebek,

892 S.W.2d 20, 55 (Tex. App.—Houston [1st Dist.] 1994, writ denied). However,

an order to pay attorney’s fees to opposing counsel as a sanction for discovery abuse

can be addressed in a final appeal if payment is delayed until final judgment. See

Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (orig. proceeding).

      Usually, a contempt order requiring payment of money before judgment is

subject to mandamus. See In re Casey, No. 18-0289, 2019 WL 6223227, at * 4 (Tex.

Nov. 22, 2019) (orig. proceeding) (not yet reported). In this case, however,

Shouldice neither sought pre-judgment mandamus relief nor complains in the appeal

from the final judgment that the trial court required her to pay the fees before trial.

In resolving this issue, we determine that the record supports the trial court’s



                                          13
conclusion that Shouldice shared responsibility for the discovery abuse. We overrule

issue five.

                                 Attorney’s Fees

      Under the Declaratory Judgments Act, the trial court rendered judgment

against Shouldice and in favor of Van Hamersveld and Thompson for $222,906.30

in attorney’s fees through the trial, $10,000 for a motion for new trial, and $50,000

for appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009. 4 In issue three,

Shouldice challenges the legal and factual sufficiency of the evidence supporting the

judgment for attorney’s fees.

      “When fee-shifting is authorized, whether by statute or contract, the party

seeking a fee award must prove the reasonableness and necessity of the requested

attorney’s fees.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d

469, 484 (Tex. 2019). A client’s agreement to a certain fee arrangement or obligation

to pay a particular amount does not necessarily establish that fee as reasonable and

necessary. Id at 488–89.




      4
        The trial court also awarded attorney’s fees under sections of the Estates
Code that allow fees to be recovered from an estate. See Tex. Est. Code Ann. §
352.051–.053. In this appeal, we consider only the award of fees against Shouldice.
Counsel did not attempt to segregate attorney’s fees incurred in the probate action
from attorney’s fees incurred pursuing the declaratory judgment.
                                         14
      The lodestar analysis applies to any situation in which an objective calculation

of reasonable hours worked times a reasonable rate can be employed. Id. at 498.

“Sufficient evidence includes, at a minimum, evidence of (1) particular services

performed, (2) who performed those services, (3) approximately when the services

were performed, (4) the reasonable amount of time required to perform the services,

and (5) the reasonable hourly rate for each person performing such services.” Id. at

498. The presumptive reasonableness of the base figure calculated under the lodestar

method is subject to adjustment if the presumption is overcome by other factors not

accounted for in the base lodestar figure. Id. at 496. The non-exclusive factors the

trial court may consider include:

      (1) the time and labor required, the novelty and difficulty of the
      questions involved, and the skill required to perform the legal service
      properly;
      (2) the likelihood . . . that the acceptance of the particular employment
      will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers
      performing the services; and
      (8) whether the fee is fixed or contingent on results obtained or
      uncertainty of collection before the legal services have been rendered.

Id. at 494; see also Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,

818 (Tex. 1997).

                                          15
      Shouldice argues that the testimony regarding attorney’s fees was too general

to support a lodestar analysis. At trial, counsel stated, “The fees stated in the invoices

and the summary are usual, customary, and reasonable in and around Montgomery

County for this time of work, considering the type of case that is involved.” He did

not state the reasonable hourly rate for legal work but the summary sheet indicates

that from October 6, 2017, through July 16, 2018, he charged his clients $350 per

hour for a total of 271.9 hours for his services, $250 per hour for a total of 111.9

hours for two associates’ services, $200 per hour for 203.6 hours of two additional

associates’ services, and $125 per hour for 59 hours of a legal assistant’s services.

He provided no information about the legal experience of any of the persons in the

invoice. In addition to charging $160,907.50 for legal services, counsel charged

$11,998.80 in expenses for a total of $172,906.30 before trial. The invoice summary

admitted at trial estimated $35,000 for trial, for a total of $207,906.30. But in his

trial testimony, trial counsel asked for $15,000 for legal services for the trial. The

trial court awarded $207,906.30 plus an additional $15,000 for a total of $222,906.30

through the trial. The trial court thereby awarded $50,000 for the trial of a default

judgment, which involved two hours of waiting and a few minutes of presenting

evidence, for the services of an attorney whose invoices showed charged an hourly

rate of $350.00. The summary sheet included $50,000 for all levels of appeal, but

                                           16
neither testimony nor documentary evidence concerning the number of hours

required or the reasonable hourly rate can be found in the record, which also lacks

any description of the work required to respond to an appeal.

      Evidence is legally insufficient when (1) there is a complete absence of

evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively

establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810

(Tex. 2005). Here, there is no evidence that $50,000 was a reasonable and necessary

fee for the trial, and the evidence conclusively established that $50,000 exceeded the

reasonable and necessary fee for the trial. Similarly, there is no evidence that

$50,000 is a reasonable and necessary fee for an appeal. We conclude the evidence

is legally insufficient to support the judgment on attorney’s fees.

      Evidence is factually insufficient if, after considering all of the evidence in

the record pertinent to the challenged finding, we determine that the credible

evidence supporting that finding is so weak, or contrary to the overwhelming weight

of the evidence, that the judgment should be set aside and a new trial ordered. Pool

v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g). Here, the

evidence contrary to the attorney’s fee award greatly outweighs the evidence

                                           17
supporting the award because the summary sheet estimated the fee for the trial to be

$35,000, counsel asked for $15,000, and the trial court awarded $50,000. The

evidence supporting the amount of the entire fee awarded, $232,906.30 with a

conditional appeal award of $50,000, is so weak that we conclude the evidence

supporting the judgment for attorney’s fees is factually insufficient.

      “The trial court abuses its discretion if it awards expenses without legally and

factually sufficient evidence that the attorney’s fees awarded were reasonable.”

Betancourt v. Ohmer, No. 09-18-00121-CV, 2019 WL 237333, at *4 (Tex. App.—

Beaumont Jan. 17, 2019, no pet.) (mem. op.). An appellate court will find an abuse

of discretion occurred if the evidence that is in the record fails to support the award

of attorney’s fees. Toledo v. KBMT Operating Co., 581 S.W.3d 324, 330 (Tex.

App—Beaumont 2019, pet. filed). We conclude the trial court abused its discretion

be awarding attorney’s fees on legally and factually insufficient evidence that fees

in that amount were reasonable and necessary. We sustain issue three.

                                     Conclusion

      We conclude the trial court failed to apply the lodestar method properly and

that it abused its discretion by failing to apply the guiding rules and principles to

determine the reasonableness of the amount it awarded to Van Hamersveld and

Thompson for their attorney’s fees. We reverse the judgment as to the award of

                                          18
attorney’s fees and remand the case to the trial court for a new trial solely on the

amount Van Hamersveld and Thompson should recover for reasonable and

necessary attorney’s fees. The remainder of the judgment is affirmed.

      AFFIRMED IN PART; REVERSED IN PART AND REMANDED.



                                                   _________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on November 14, 2019
Opinion Delivered January 23, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                        19
