GRAYSON DOUGLAS GILL, ELLEN EVES DENNIS, EMILY SCANLON CRUMP, ROBERT BLAIR SCANLON
AND CALLOWAY, NORRIS & BURDETTE v. JANICE L. MATTOX, ATTORNEY AD LITEM FOR THE
UNKNOWN HEIRS OF HARRISON DOUGLAS FENDLEY, DECEASED; from Dallas County; 5th district
(05‑07‑00429‑CV, ___ SW3d ___, 06‑23‑08)request for expenses and attorney's fees pursuant to the
“common fund doctrine.” That doctrine is an equitable doctrine designed to prevent unjust enrichment
ARBIE MACKEY FENDLEY, VICKIE QUINN AND MARTHA DERSTINE, AS CO- TRUSTEES OF THE
FENDLEY FAMILY TRUST, GRAYSON DOUGLAS GILL, ELLEN EVES DENNIS, EMILY SCANLON CRUMP,
ROBERT BLAIR SCANLON, AND CALLOWAY, NORRIS & BURDETTE, Appellants
JANICE L. MATTOX, ATTORNEY AD LITEM FOR THE UNKNOWN HEIRS OF HARRIS DOUGLAS
FENDLEY, DECEASED, Appellee
On Appeal from the Probate Court
Dallas County, Texas
Trial Court Cause No. 99-3081-P
MEMORANDUM OPINION ON REHEARING
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Wright
We withdraw the Court's opinion and judgment of May 22, 2008. The following is now the opinion of the
Arbie Mackey Fendley (Mackey), Vickie Quinn, and Martha Derstine, as co-trustees of the Fendley
Family Trust, appeal the portion of the trial court's order granting attorney's fees to Janice L. Mattox.
Grayson Douglas Gill, Ellen Eves Dennis, Emily Scanlon Crump, Robert Blair Scanlon, and Calloway,
Norris & Burdette (CNB) appeal the portion of the trial court's order denying their request for expenses
and attorney's fees under the “common fund doctrine.” For reasons that follow, we dismiss Mackey,
Quinn, and Derstine's appeal for want of prosecution. See Footnote 1 In three issues, appellants
generally contend the trial court abused its discretion by denying their request for expenses and
attorney's fees, and that one-third of the paternal heirs' portion of the settlement fund is a fair and
reasonable fee. We conclude the trial court did not abuse its discretion by denying appellants' request
and affirm the trial court's judgment.
After Harris Douglas Fendley died intestate, Arbie Mackey filed suit claiming to be his common-law wife
and seeking to be declared the sole heir at law of Fendley's estate. The trial court appointed Janice L.
Mattox as attorney ad litem for any unknown heirs. Mattox identified Gill, Dennis, Crump, and Scanlon as
Fendley's maternal heirs who then hired CNB to represent them. The maternal heirs filed an answer,
denying Mackey was Fendley's common-law wife and denying that Fendley died without heirs. The
maternal heirs did not request injunctive relief. Mackey identified the assets of the estate and of the
Fendley Family Trust in response to the maternal heirs' interrogatories. The trust included an annuity
worth approximately $900,000. After learning the size of the estate and trust, the maternal heirs filed an
application for appointment of a temporary administrator of the estate to “protect and administer” the
assets of the estate and trust. In the application they stated they had no objection to appointing Mattox as
temporary administrator. Mackey objected, claiming there was no need for a temporary administrator.
Before the trial court ruled on the request, Mackey, the maternal heirs, and Mattox, acting on behalf of the
paternal heirs, agreed to a temporary injunction “freezing” the assets of the estate and the trust. CNB
proceeded with the defense of Mackey's common-law wife claim, and contested the validity of the power of
attorney and the Fendley Family trust that was set up by Mackey pursuant to the power of attorney.
Mattox attended certain depositions and hearings on behalf of the still unidentified paternal heirs.
Later, Mackey, the maternal heirs, and Mattox on behalf of the paternal heirs, attended mediation and
reached a settlement. As part of the settlement, the parties agreed to deposit $750,000 from the annuity
into the registry of the court in an interest bearing account (the fund) for the benefit of those determined
to constitute Fendley's heirs at law if he died single and to pay CNB's attorney's fees. A short time later,
the maternal heirs received half of that amount, and pursuant to a contingency fee agreement, paid CNB
one-third of their recovery for attorney's fees. Thereafter, CNB did not render any services purported to
benefit the paternal heirs. Four years later and after extensive research, 1006 paternal heirs were
identified by Mattox. After an evidentiary hearing, the trial court declared the paternal heirs, awarded
attorney's fees to Mattox for her representation of the paternal heirs (to be paid by Mackey pursuant to
the settlement agreement), and denied appellants' request for one-third of the paternal heirs' portion of
the fund as additional attorney's fees. This appeal followed.
Both appellants and Mackey, Quinn, and Derstine filed notices of appeal. After filing a notice of appeal,
docketing statement, and filing fees, Mackey, Quinn, and Derstine failed to file a brief and have not sought
an extension of time to file a brief. On July 16, 2007, we notified Mackey, Quinn, and Derstine's attorney
that their brief was due, and that if they failed to file a brief and proper extension motion, their appeal
would be dismissed. To date, Mackey, Quinn, and Derstine have not filed a brief nor had further
correspondence with the Court. Therefore, we dismiss Mackey, Quinn, and Derstine's appeal for want of
prosecution. See Tex. R. App. P. 42.3(b). Having dismissed Mackey, Quinn, and Derstine's appeal, we
turn to the remaining appellants' complaints.
In their first and second issues, appellants contend the trial court abused its discretion by denying their
request for expenses and attorney's fees pursuant to the “common fund doctrine.” That doctrine is an
equitable doctrine designed to prevent unjust enrichment. See Knebel v. Capital Nat'l Bank in Austin, 518
S.W.2d 795, 799 (Tex. 1974). It is founded on the principle that “one who preserves or protects a common
fund works for others as well as for himself, and the others so benefitted should bear their just share of
the expenses, including a reasonable attorney's fee; and that the most equitable way of securing such
contribution is to make such expenses a charge on the fund so protected or recovered.” Id. We review the
trial court's decision regarding an award of attorney's fees under the common fund doctrine for an abuse
of discretion. Crouch v. Tenneco, Inc., 853 S.W.2d 643, 646 (Tex. App.-Waco 1993, writ denied).
The record reflects that the efforts of both CNB and Mattox were necessary for the successful
completion of this case. CNB received one-third of the maternal heirs $375,000 recovery for
representation of the maternal heirs in this case. Mattox was awarded $115,306 in attorney's fees and
costs for her representation of the 1006 paternal heirs. Although Mattox's fees and costs were to be paid
by Mackey rather than from the fund, that condition was set forth in the settlement agreement negotiated
by appellants, Mackey, and Mattox. The trial court was familiar with the facts of the case, the efforts made
by the attorneys, the source of the funds, the extent of the estate, and the results achieved on behalf of
everyone involved. Examining the record as a whole, we cannot conclude the trial court abused its
discretion by denying appellants' request for one-third of the paternal heirs' portion of the fund in addition
to the amount it received from the maternal heirs' portion of the fund. We overrule appellants' first and
second issues. Having done so, we need not address appellants' third issue.
Accordingly, we affirm the trial court's order denying appellants' request for expenses and attorney's
fees under the common fund doctrine.
Footnote 1 Thus, when referring to “appellants,” the Court is referring to Gill, Dennis, Crump, Scanlon,
and CNB collectively.