William Alford v. Simon Marino, Administratrix of the Estate of Mathew Alford

Affirmed as Modified and Memorandum Opinion filed December 8, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00912-CV ____________ WILLIAM ALFORD, Appellant V. SIMONE MARINO, ADMINISTRATRIX OF THE ESTATE OF MATHEW ALFORD, DECEASED, Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 02-06251 M E M O R A N D U M   O P I N I O N Simone Marino, daughter and administratrix of her father=s estate, sued her uncle, William Alford, for depleting her father=s estate while William was her father=s guardian. The parties tried the case to the court, which entered a judgment for Ms. Marino as administratrix. William Alford now complains the evidence is legally and factually insufficient to support the trial court=s judgment awarding damages and attorney=s fees to Ms. Marino. For the reasons stated below, we affirm the judgment as modified. Factual Background William Alford is one of eleven children born to C.D. and Willie Mae Alford, and the brother of Mathew Alford, the deceased ward. Appellee Simone Marino is one of Mathew=s three children. Mathew worked as a pipe fitter at Champion Paper Company for approximately twenty years before he sustained a chemical burn which forced him to retire in 1985 or 1986. He then began receiving $310 per month in disability benefits. At the time, Mathew lived alone in his home at 4201 Leffingwell Street in Houston. Mathew=s physical health and cognitive abilities began to deteriorate, and in 1988, he moved in with William and his wife, Lee, in Houston. The next year, William was appointed guardian of Mathew=s person and estate. The court required an $8,000 bond, which William posted through Fidelity & Deposit Company. Mathew began receiving social security benefits of approximately $1,059 per month, and he also received a lump sum payment of $10,000 for past benefits. William deposited the lump sum payment into a certificate of deposit (CD) account at Capital Bank in Houston. In the latter part of 1989, Mathew moved to Louisiana to live with his mother, Willie Mae Alford. Because of Mathew=s change of residence, in March of 1992, the Social Security Administration sent a letter to his mother informing her that she had been designated the Arepresentative payee@ of Mathew=s social security checks, and further informing her that each year she would be asked to account to the Social Security Administration for how she used the money. In January of 1997, the Social Security Administration sent a similar letter to William, informing him that he was now the representative payee of Mathew=s checks and informing him of his duty to account for his use of the money. It also reflected an increase in the amount of the check to $1,215 per month. Although the date is unclear, some time in 1996, Mathew returned to Houston by ambulance. In February of 1997, Mathew was placed in a nursing home. Approximately one month later, on March 7, 1997, Mathew died. Procedural Background Shortly before Mathew=s death, Mathew=s son filed a complaint in probate court to require William to file an annual and final accounting. At the same time, Simone filed an application to be appointed as her father=s guardian. In August of 1998, the probate court removed William as Mathew=s guardian and appointed Tim Weaver successor guardian of Mathew=s estate. Weaver filed an inventory and list of claims identifying $8,201.50 in Mathew=s estate, and the probate court approved it without objection. Eventually, the probate court approved the final settlement, discharged Weaver as successor guardian, and closed the guardianship. In February of 2002, Simone, as administratrix of Mathew=s estate, filed this action in district court, alleging, among other things, that William breached his fiduciary duty as Mathew=s guardian and failed to account for Mathew=s funds. She also sued Fidelity on the bond and sought attorney=s fees under section 38.001 of the Texas Civil Practice and Remedies Code based on the bond. In October of 2003, the case was tried to the bench. On June 30, 2004, the court entered a judgment awarding Simone damages of $105,922.01, and additional damages of $7,415.82 as a penalty under section 758 of the Probate Code for William=s failure to timely turn over the money in Mathew=s estate to Tim Weaver, the successor guardian. The court also entered judgment against William and Fidelity, jointly and severally, for $8,000, representing the amount of the bond. The court further awarded Simone attorney=s fees of $12,200 through trial, $2,500 if there is an unsuccessful appeal by and of the defendants, $1,500 if a petition for review is filed at the Texas Supreme Court, and $2,500 if the petition is granted and there is an appeal to the Texas Supreme Court. Findings of fact and conclusions of law were requested and filed. This appeal followed. Issues on Appeal William Alford raises two issues: (1) the evidence is legally and factually insufficient to support the trial court=s findings of fact and conclusions of law and the judgment; and (2) the evidence is legally and factually insufficient to support the award of attorney=s fees to Simone Marino. We address each in turn. I. Standards of Review Findings of fact in a bench trial have the same force and dignity as a jury=s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.CHouston [14th Dist.] 1977, writ ref=d n.r.e.). When challenged on appeal, the findings are not conclusive if there is a complete reporter=s record, as there is here. In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.CHouston [14th Dist.] 2002, no pet.). The trial court=s findings will not be disturbed if there is evidence of probative force to support them. Id. A trial court=s findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury=s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review the trial court=s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143B44 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Under a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.CHouston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id. II. The Evidence is Not Legally and Factually Sufficient to Support the Trial Court=s Findings of Fact and Conclusions of Law and Judgment In his first issue concerning the legal and factual sufficiency of the evidence, William raises three sub-issues: (1) whether the evidence supports the findings that he failed to comply with the Probate Code because he did not account for Mathew=s social security benefits; (2) whether the evidence supports the damages award; and (3) whether the trial court improperly shifted the burden of proof to William as guardian. We will first address sub-issue 3 concerning the burden of proof. We will then address sub-issues 1 and 2 together, because they both go to William=s contention that the evidence does not support the damages award of $105,922.01.[1] Although we conclude that the trial court did not err in shifting the burden of proof to William to account for his use of William=s money, we agree with William that he was not required to account for Mathew=s social security benefits during the time Mathew=s mother was designated the representative payee of the benefits; as we discuss below, no evidence showed that William received benefits during that period. A. The Trial Court Did Not Err in Shifting the Burden of Proof to William to Account for Mathew=s Money. 1. The burden-shifting process As Mathew=s guardian, William owed fiduciary duties to Mathew. However, William contends that the trial court erroneously shifted the burden to him to prove he properly and fairly used Mathew=s money. He alleges that a presumption of unfairness does not arise until after it has been shown that the fiduciary profited from the transaction, and no evidence shows that he did so. At most, William urges, the evidence shows he was a poor bookkeeper, not that he misappropriated Mathew=s income. In connection with this argument, William challenges the trial court=s following findings of fact (as summarized): William Alford was in a fiduciary position and so bore the burden to explain all expenditures and income received by Mathew; he could not account for Mathew=s income and expenses and so did not sustain his burden; William was liable to Mathew=s estate for $105,922.01; and William failed to comply with the requirements of Probate Code sections 668 and 741. William also challenges the corresponding conclusions of law: William breached fiduciary duties to Mathew; the burden shifted to him to prove the fairness of the transactions; he did not sustain this burden; he failed to fulfill his obligations under the law; and he was liable to Mathew=s estate for $105,922.01. We find, however, that under the facts of this case the trial court properly placed the burden on William to account for Mathew=s money. As Mathew=s guardian, William owed fiduciary duties to Mathew. When a fiduciary benefits from transactions with the principal, the burden shifts to the fiduciary to show the transactions are fair and reasonable. See, e.g., Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508B09 (Tex. 1980); Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex. 1974). Even in the case of a gift between parties with a fiduciary relationship, A>equity indulges the presumption of unfairness and invalidity, and requires proof at the hand of the party claiming validity . . . of the transaction that it is fair and reasonable.=@ Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex. App.CHouston [14th Dist.] 1993, writ denied) (quoting Sorrell v. Elsey, 748 S.W.2d 584, 585 (Tex. App.CSan Antonio 1988, writ denied)). We hold that the facts recited belowCwhich show that William could not explain how much of Mathew=s money he spent or where he spent most of itCsufficiently undermined William=s claim of fairness that the trial court rightly shifted the burden to William to affirmatively prove his actions were beneficial to Mathew. At trial, William acknowledged that, while he was Mathew=s guardian, Mathew received $310 per month in disability benefits, at least $1000 per month in social security benefits, and interest on the CD and his other accounts. William also acknowledged that he did not file annual accountings as required under Probate Code section 741. See Tex. Prob. Code ' 741. In fact, during his eight-plus years as Mathew=s guardian, William filed only one accounting with the probate court: the final accounting in May of 1997, which he filed only after Mathew=s son filed a complaint to require him to do so. This final accounting, which Simone placed in evidence, showed that in 1997, Mathew had a savings account containing $6,678.61 and a checking account containing $1,453.71. It also showed rental income of $800 for Mathew=s house on Leffingwell, which was apparently all that was earned during the entire period William was guardian. For each year of the guardianship, William had provided a handwritten statement reflecting the balance in each of Mathew=s bank accounts, minus an amount reflecting money withdrawn that year. William provided very few bank statements, and he did not identify any of Mathew=s monthly income. The withdrawals were supported by a few copies of checks or receipts. Checks were sometimes made out to cash, and some were made out to merchants or others with little or no description of the reason for the payment.[2] Numerous receipts were included reflecting monthly payments of $200 to Lee Alford (William=s wife) for Acaretaking,@ even during the time Mathew lived in Louisiana, and a rental car for Lee Alford was paid for with Mathew=s money. Many checks were out of sequence or missing.[3] There were withdrawals for money spent on Mathew=s truck, although he was not driving it, and repairs to his house, although he was not living in it. William also paid for improvements to his mother=s home in Louisiana, including septic tank repairs, new wiring, and roofing. Some of the expenses were counted more than once or there were mathematical errors in the total amount of withdrawals. Additionally, although interest income reported in the first month of the guardianship was $464.69, William reported income interest of much less in the following years. 2. William=s lack of records and Mathew=s loss of money William could not explain why he had not accounted for any of Mathew=s income, nor could he explain why the interest income was so much less after the first year of his guardianship. Regarding the missing and out-of-sequence checks, he claimed he voided many checks, and sometimes wrote checks from different books. He also testified that he had no idea where many of the checks went, but insisted that the money was spent Afor Mathew.@ William testified he would send $500B600 per month to his mother in Louisiana for Mathew=s care, but he often sent cash, and did not get receipts. He also acknowledged that his wife, Lee, was paid for Acaretaking@ even when Mathew was living in Louisiana, and explained that the rental car was so that she could take Mathew to and from doctor=s appointments at the VA hospital in Houston. Concerning repairs to Mathew=s house, William explained at one point that he made repairs so the house would comply with city requirements, and later he testified he had fixed it up while his sister lived in it for a couple of months, and she paid rent during that time. When questioned about what happened to the CD, which was not listed in the final accounting, William stated that he did not know what happened to it.[4] 3. What the trial court could properly have concluded On these facts, we find that Simone presented sufficient evidence that William withdrew money from Mathew=s accounts over the years and could not account for the majority of it. Thus, the trial court could have determined that William benefitted personally from that money, and so correctly placed the burden on William to rebut the presumption of unfairness of the transactions. See Townes, 867 S.W.2d at 417B18 (holding that when parties stipulated son owned fiduciary duties to mother and son withdrew funds from mother=s account, burden was on son=s estate to rebut presumption transactions were unfair). Based on William=s testimony and the other evidence, the trial court found that Mathew received an annual income of $17,320 per year, representing the total of his monthly disability payments, his monthly social security benefits, and the interest on his CD.[5] This annual income was reduced by William=s checks and receipts for expenses, and after an adjustment for mathematical inaccuracies in William=s accounting, the total amount unaccounted for was $105,922.01. Even though the trial court allowed William credit for all of the disbursements he supported with checks or receipts, this at most shows that William successfully rebutted the presumption of unfairness as to those amounts onlyCit does not demonstrate, as William suggests, that the trial court found no self-dealing or misappropriation of the rest of Mathew=s money.[6] Having determined that the trial court did not err in shifting the burden to William to account for his expenditures of Mathew=s money, we next consider William=s contention that he should not have been required to account for Mathew=s social security benefits during the time his mother was the designated representative payee for the benefits. B. The Evidence is Not Legally and Factually Sufficient to Support All of the Damages Awarded Against William. 1. The alleged fallacy with the court=s findings of fact and conclusions of law The trial court concluded that William failed to fulfill his statutory duty under section 741 of the Probate Code to annually account for Mathew=s money, and that William could not account for $105,922.01 of it. See Tex. Prob. Code ' 741. In reaching these conclusions, the trial court found, among other things, that William failed to adequately account for Mathew=s monthly social security benefits. These benefits constitute the largest component of the damages award. On appeal, William contends he was not required to account for Mathew=s social security benefits during the time the Social Security Administration had designated Mathew=s mother, Willie Mae Alford, the representative payee of the benefits, and there is no evidence that William received those benefits instead of Mrs. Alford. On this basis, William challenges the legal sufficiency of the evidence supporting the trial court=s judgment, its findings of fact 26, 28B31, and 38, and its conclusions of law 9B11 and 13B15. We agree with William=s contentions, and hold that he should not have been required to account for social security payments made to Mathew=s mother. 2. The evidence presented at trial William offered evidence that the Social Security Administration designated Mathew=s mother, Willie Mae Alford, as Mathew=s Arepresentative payee@ in a March 25, 1992 letter addressed to her. It recited in relevant part the following: We have chosen you to be MATHEW ALFORD=S representative payee. The rest of this letter will give you information about the checks you will receive while you are the payee. What We Will Pay And When You will receive $1059. for March 1992 around April 3, 1992. After that you will receive $1059.00 each month. It Is Important To Keep Track Of This Money You will need to keep track of how you use all of the money we send you for MR. ALFORD. Each year we will ask you to report on how you used the money. We call this a representative payee accounting. Mrs. Alford remained the representative payee through December 1996. In January of 1997, the Social Security Administration sent another letter in the same form advising William that he would be Mathew=s representative payee and that he would receive payments of $1,215.00 per month, beginning with the payment for January. Thus, for fifty-eight months (from March 1992 through December 1996), Ms. Alford received Mathew=s social security benefits as representative payee. Using the rounded figure applied to determine damages, the total amount of these benefits is as follows: $ 1,100 x 58 $63,800 Thus, William contends the trial court erred in including this amount in the damages award. 3. Case law establishes that payments sent to someone other than the guardian are not part of the guardianship Case law has established that these social security payments were not part of the guardianship. In Tharp v. Blackwell, the court determined that social security benefits paid to individual payees other than the guardian are not included in the ward=s estate; therefore, the guardian is not required to account for them. See 570 S.W.2d 154, 160B61 (Tex. Civ. App.CTexarkana 1978, no writ), superseded by statute on other grounds, Waguespack v. Halipoto, 633 S.W.2d 628 (Tex. App.CHouston [14th Dist.] 1982, writ dism=d w.o.j.). However, if the funds are paid to the guardianship or are commingled with guardianship estate funds, then they must be accounted for by the guardian. Id. at 161. This holding is consistent with language in the State Bar=s Guardianship Manual, which provides as follows: The power of a court-appointed guardian of the estate to receive and manage [social security] benefits is subordinate to that of a representative payee. The Social Security Administration may deny a court-appointed guardian of the state the right to receive the ward=s [benefits] and may appoint another individual as representative payee. State Bar of Tex., Texas Guardianship Manual, ' 3.3 (2d ed. 2003). No evidence in this case shows that William was still receiving Mathew=s social security benefits while Mrs. Alford was the designated recipient in the Social Security Administration=s records. Although we do not want to reward bad record-keeping, there simply is nothing more than mere suppositions that William continued receiving the social security benefits while Mrs. Alford was the designated recipient by the Social Security Administration. Even the trial court remarked that the Social Security Administration letter designating Mrs. Alford as recipient beginning April 1992 was uncontroverted. In addition, William testified that he was not receiving these funds. Although Simone argues that it is apparent A[f]rom William Alford=s testimony and the exhibits he offered in his Final Accounting that [Mrs.] Alford did not receive the Social Security checks,@ the part of the record she relies on for this involves the year 1990, two years before the Social Security Administration letter to Mrs. Alford. In addition, because of William=s abysmal records, very little in this record is apparent. Applying the standards of review for legal and factual sufficiency challenges by a party with the burden of proof on an issue, see Dow Chem. Co. v Francis, 46 S.W.3d 237, 241 (Tex. 2001), we find that William conclusively showed that his mother received Mathew=s social security benefits from January 1992 thorough December 1996, and the trial court=s findings to the contrary are so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. Therefore, we hold the trial court erred by finding that William failed to account for those benefits and the amount of the benefits should not have been included as damages against William. We therefore sustain this issue, reverse that portion of the judgment awarding $105,922.01 against William and reform the judgment to award $42,122.01. III. The Evidence is Legally and Factually Sufficient to Support the Award of Attorney=s Fees In his second issue, William contends the evidence is legally and factually insufficient to support the award of attorney=s fees. William also challenges the trial court=s findings of fact numbers 32, 33, and 37, and conclusions of law 12 and 19. These findings and conclusions reflect that the trial court awarded attorney=s fees to Simone under section 668 of the Probate Code because she filed suit to obtain compliance with the statutory duty to account. William replies with several arguments in support of his contention. First, he argues that Simone did not plead for a recovery of attorney=s fees under section 668 of the Probate Code. Second, he contends section 668 does not apply to Simone=s claims against him. Third, and last, he contends the evidence is legally and factually insufficient to support any finding that the fees were reasonable and necessary. We address each in turn. A. William Waived Any Claim of Pleading Defect. William first contends Simone did not plead for an award of attorney=s fees under the Probate Code, and therefore waived any claim for fees.[7] Simone responds with two arguments: (1) her pleading supports an award of attorney=s fees under section 668 of the Probate Code because she pleaded, and the trial court found, that William violated his statutory duty to account for Mathew=s money, and (2) in any event, the issue was tried by consent. William denies that the issue was tried by consent, claiming that he objected to Simone=s request for fees in a post-trial brief in opposition to the request, and filed proposed findings of fact and conclusions of law denying any fee recovery to Simone. However, we have reviewed William=s post-trial filings, and nowhere within them does he object to an award of attorney=s fees on the basis of a pleading defect. Therefore, William has waived the right to object to a failure to specifically plead for attorney=s fees under Probate Code section 668. See Tex. R. Civ. P. 90 (providing that pleading defects not specifically pointed out by exception in writing and brought to the trial court=s attention before the judgment is signed are deemed waived). Moreover, even if Simone did not expressly plead for attorney=s fees under section 668, she may be entitled to them if she pleaded facts which, if true, entitle her to the relief sought. See Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (petition authorized recovery of attorney=s fees even though party failed to plead for attorney=s fees under the proper statute given petition included a general prayer for attorney=s fees and a recitation of facts entitling him to the relief sought). Accordingly, we turn to William=s next contention, that section 668 does not apply to Simone=s claims. B. Section 668 Applies to Simone=s Claims. The trial court specifically found that Simone, as administratrix of Mathew=s estate, filed this suit Ato obtain compliance@ with the statutory duties William, as guardian, neglected, and she was therefore entitled to recover reasonable and necessary attorney=s fees under Probate Code section 668. Section 668 provides as follows: When costs are incurred because a guardian neglects to perform a required duty or if a guardian is removed for cause, the guardian and the sureties on the guardian's bond are liable for: (1) costs of removal and other additional costs incurred that are not authorized expenditures under this chapter; and (2) reasonable attorney=s fees incurred in removing the guardian or in obtaining compliance regarding any statutory duty the guardian has neglected. Tex. Prob. Code ' 668. Among other things, the trial court found that William failed to comply with Probate Code section 741, because he failed to file annual accountings, and the final account he did file failed to comply with that section=s requirements. See Tex. Prob. Code ' 741(a)(3), (c)(1)B(c)(2). William contends section 668 does not apply to Simone=s suit because it was not a suit Ato remove a guardian or to force compliance with a statutory duty.@ William points out he had already been removed as guardian and the guardianship proceeding had been closed. Further, he characterizes Simone=s claim as Aat best@ one for breach of fiduciary duty, which ordinarily does not support an attorney=s fee award. See Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex. App.CSan Antonio 2004, pet. dism=d) (recognizing that attorney=s fees are generally not recoverable for breach of fiduciary duty claims). However, we do not read either Simone=s petition or the statute so narrowly. In her petition, Simone alleged that William was the guardian of Mathew=s estate, and it was necessary to file suit against him as a result of his Afraud and misappropriation@ of Mathew=s funds. She alleged that William failed and refused to file accountings of the funds Mathew received and how they were spent, and she also alleged that, as a result of William=s failure to perform his fiduciary duties, the probate court removed him as guardian. Simone further alleged that William wrongfully spent funds belonging to Mathew, and that she was therefore suing, as administratrix of the estate of Mathew Alford, both William and the bonding company for the dissipation of funds that rightfully belonged to Mathew=s estate. We find that Simone=s petition sufficiently set forth allegations to entitle her to an award of attorney=s fees under section 668, and we hold that the trial court=s findings support such an award. Section 668 provides that guardians and their sureties are liable for reasonable attorney=s fees incurred in two situations: (1) removing the guardian; or (2) in obtaining compliance regarding any statutory duty the guardian has neglected. See Tex. Prob. Code ' 668(2). Simone sought to force compliance with the statutory duties William neglected; clearly those claims fall under subsection (2) of section 668. Moreover, we are to liberally construe the Revised Statutes to achieve their purposes and promote justice. See Maley v. 7111 Southwest Freeway, Inc., 843 S.W.2d 229, 231 (Tex. App.CHouston [14th Dist.] 1992, writ denied); Tex. Gov=t Code ' 312.006. William=s narrow reading of the statute would prevent a beneficiary or an estate from recovering its costs and attorney=s fees against a neglectful guardian merely because the guardian has already been removed. Such an interpretation is inconsistent with the statute=s general purpose of requiring the neglectful guardian and his surety, not the estate, to bear any losses the guardian generated by his neglect of statutory duties. Therefore, we hold that the trial court did not err in awarding attorney=s fees to Simone under Probate Code section 668. C. The Evidence is Legally and Factually Sufficient to Support the Attorney=s Fees Awarded. Finally, William contends that the evidence is legally and factually insufficient to support any finding that the fees were reasonable and necessary. In support of his contention, William cites the general factors to be considered under Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 817B19 (Tex. 1997), and argues that Simone=s counsel did not provide a breakdown of the fees or details concerning the amount of time expended on specific tasks and whether all the tasks had to be performed by a licensed lawyer. We disagree. At trial, one of Simone=s attorneys, William McLeod, testified concerning the attorney=s fees incurred by the lead counsel for Simone, Harry Arthur. McLeod testified to (1) the reasonable rate for an attorney of Arthur=s experience, (2) when the representation began, and (3) the specific actions taken on Simone=s behalf. Based on Arthur=s rate and the activities Arthur undertook, McLeod testified that Arthur=s total time through mediation was 45 hours at $200 per hour for a total of $9,000. He further testified that Arthur had spent twelve hours in trial and four hours post-trial, which came to $3,200 for sixteen hours of work, making the total attorney=s fees incurred $12,200. McLeod also testified that an appeal to the court of appeals would be an additional $2,500, a petition for review to the Texas Supreme Court would be an additional $1,500, and appeal to the Texas Supreme Court would be $2,500.[8] In response to questions from the trial court, McLeod testified that he was familiar with the reasonable and necessary fees for the type of work performed, and in his opinion the fees were reasonable and necessary. We have reviewed the testimony and find that it is legally sufficient to support the trial court=s award. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005) (summarizing legal sufficiency standard of review). It is correct that, during cross-examination by Fidelity and Deposit Company=s counsel, McLeod could not provide a specific breakdown of the number of hours spent on each task and other details of the work, and he did not know if the agreement between Arthur and Simone was hourly or a contingent fee arrangement. However, reviewing all the evidence and applying the Arthur Andersen factors, we cannot say that the trial court=s award of attorney=s fees is so against the great weight and preponderance of the evidence as to render it factually insufficient. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761B62 (Tex. 2003) (summarizing factual sufficiency standard of review). We therefore hold that the trial court did not err in awarding reasonable and necessary attorney=s fees to Simone. William=s second issue is overruled. Conclusion We sustain William=s first issue to the extent that the trial court erred in concluding that William was required to account for social security benefits during the time that his mother, Willie Mae Alford, was designated the representative payee by the Social Security Administration, and hold that the trial court erred including the amount of those payments in the damages awarded to Simone Marino as administratrix of Mathew Alford=s estate. We therefore reverse that portion of the trial court=s judgment awarding damages of $105,922.01 and reform it to award damages of $42,122.01. We overrule Williams=s second issue and hold that the evidence was not legally or factually insufficient to support the award of reasonable and necessary attorney=s fees to Simone Marino under Probate Code section 668. We affirm the remainder of the trial court=s judgment. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed December 8, 2005. Panel consists of Justices Fowler, Edelman, and Guzman. [1] William does not complain about that portion of the judgment awarding Simone $7,415.82 as a penalty under section 758 of the Probate Code for William=s failure to timely turn over money from Mathew=s estate to the successor guardian, Tim Weaver. [2] The checks made out to cash often reflected they were for AMathew [sic] needs.@ [3] For example, the last check shown for 1990 was number 1094; the next check shown in 1991 was number 1276. William could not explain what happened to the over 180 checks in between, other than to say that he Apost-dated them, you know,@ and Awrote checks out of different books.@ [4] On direct examination by his counsel, William explained that he had cashed in the CD and that the money from it was included in the funds turned over to Tim Weaver. However, the trial judge, as the fact finder, was the sole judge of the credibility of the witness, and was free to believe or disbelieve this testimony. See Barrientos, 94 S.W.3d at 288. [5] Mathew=s annual income was based on the following: $310 (disability) x 12 months = $ 3,720 $1,100 (social security) x 12 months = $13,200 $400 (CD interest) = $ 400 Total Annual Income $17,320 [6] This is true even after an adjustment is made for certain social security benefits, as discussed in the next section. [7] Simone did plead for attorney=s fees under Texas Civil Practice and Remedies Code section 38.001, apparently relying on the existence of the surety bond contract, and argued this basis for fees at trial. See Tex. Civ. Prac. & Rem. Code ' 38.001(8) (providing a party may recover reasonable attorney=s fees if the claim is for an oral or written contract). However, because we find Simone was entitled to attorney=s fees under section 668 of the Probate Code, we do not address William=s argument that Simone is not entitled to attorney=s fees under section 38.001. [8] McLeod also testified that he personally spent 16 hours for Awork that [he had] performed on reviewing this file@ at a rate of $150 per hour for a total of $2,400. These attorney=s fees were apparently not awarded.