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Click here for the full text of this decision FACTS:For many years Imperial Tank Company (ITC), a steel tank fabrication business, was owned by the Arreguin family and managed by Clark Andrew Arreguin. In 1991, Clark became the full owner. For the next 10 years, ITC leased approximately 10 acres of land owned by Aleta B. Arreguin Lowe Roy (Aleta) for its business operations. In 2004, Aleta died leaving a will that divided the real property between Clark and her other three children, Steve Arreguin, Eileen Arreguin and Liza Rena Hunt (the siblings). The will was admitted to probate, and Clark was appointed sole independent executor. Shortly before her death, Aleta had prepared a renewal lease agreement for the property leased by ITC. The new lease was identical to ITC’s previous lease agreements, which set the rent at $10,000 per month. The new lease was, however, never signed by Clark for ITC, and shortly after Aleta died, the lease then in effect entered into its “holdover” period. Before renewing the lease, Clark obtained an independent appraisal of the real property, which valued it at $610,000. Based on this valuation, he determined that the appropriate rental value for the real property was $5,085 a month. Without notifying his siblings, Clark executed annual one-year-term leases in 2004, 2005 and 2006 that changed ITC’s rent from $10,000 to $5,085. After learning of the rent reduction, the siblings called a family meeting with Clark to discuss their concerns about the rent reduction and his administration of the estate. They demanded an accounting from Clark, which he submitted a month later. The siblings expressed several concerns about Clark’s accounting; they felt it was inadequate and requested additional information to determine the exact condition of the estate. Among the concerns listed by the siblings was Clark’s failure to provide them with a closing statement for the sale of Aleta’s residence. That closing statement revealed that Clark received $2,500 as a service fee and $2,500 in administrative expenses as payment for the sale of the home, none of which were included in the accounting. The siblings also complained that the accounting failed to include two cranes � substantial assets of the estate � and that Clark failed to sue Leo Roy for misconduct in damaging one of the beneficiary’s property interests under the will. The siblings sued to remove Clark as independent executor and for the appointment of Steve Arreguin as successor independent executor. At a bench trial, only Clark presented expert testimony regarding his administration of the estate. The court found that the siblings failed to meet their burden of proof that Clark misapplied or embezzled funds of the estate, failed to make an accounting, or was guilty of gross misconduct or mismanagement. The siblings filed a motion for new trial that was granted, and at a second bench trial, they presented expert testimony rebutting Clark’s expert on the fair rental value of the real property. The trial court issued findings of fact and conclusions of law, found Clark to have engaged in self-dealing by executing the three reduced-rent leases, entered an order removing Clark as independent executor and appointed Steve as successor independent executor. The trial court declared the three leases to be void and unenforceable. The 10th Court of Appeals submitted the case on Nov. 28, 2007. Clark filed an untimely reply brief, which the court did not accept, because he did not seek leave of the court before filing it. HOLDING:Affirmed. In his first issue, Clark contended that legally and factually sufficient evidence to support his removal as independent executor. The trial court found several grounds for removal, including: 1. Clark misapplied property committed to his care; 2. he failed to make an accounting; 3. he was guilty of gross misconduct in the performance of his duties; and 4. his gross mismanagement caused him to violate his fiduciary duties as independent executor. Texas Probate Code �149C, the court stated, sets out the grounds for removal of an independent executor, and any one of the statute’s enumerated grounds is sufficient for removal. Therefore, the court stated that if sufficient evidence supported at least one ground for removal, the removal order should be affirmed. Clark’s positions as a beneficiary, the independent executor and president of ITC created a conflict of interest, the court stated. Although that conflict of interest alone may not disqualify him as an independent executor, Clark’s fiduciary duty required him to disclose information regarding the estate to the siblings. It is well recognized, the court stated, that a fiduciary relationship creates a duty to disclose. It was uncontroverted at trial, the court stated, that Clark took a fee for the sale of the residence without disclosing this in the accounting and that he reduced the rent by almost 50 percent without initially notifying the siblings. When Clark sought to decrease the rent, his interest as president and owner of ITC became adverse to the estate. The court held that this “uncontroverted” evidence was legally and factually sufficient to establish the trial court’s findings that Clark exercised gross mismanagement by violating his fiduciary duties. Therefore, the court found that the trial court acted within its discretion to remove Clark as independent executor. In his second point, Clark claimed that the trial court erred in denying his request for attorneys’ fees and granting the siblings’ request for attorneys’ fees under the Texas Probate Code. Under �149C(d), an independent executor is entitled to reasonable attorneys’ fees, whether he is successful or not, if he defends his removal action in good faith. In addition, the court noted that the costs and expenses incurred by a party seeking removal of an independent executor appointed without bond, including reasonable attorneys’ fees and expenses, may be paid out of the estate. The court noted that the trial court found that Clark breached his fiduciary duty to the estate, and ample evidence supported that finding. The court thus found no abuse of discretion in the court’s refusal to award attorneys’ fees to Clark and its award of attorneys’ fees to the siblings. OPINION:Vance, J.; Gray, C.J., and Vance and Reyna, JJ.

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