In the Estate of Charlene Butts v. the State of Texas

                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               ________________

                               NO. 09-21-00269-CV
                               ________________

                   IN THE ESTATE OF CHARLENE BUTTS

________________________________________________________________________

                    On Appeal from the Probate Court No. 1 1
                         Montgomery County, Texas
                         Trial Cause No. 20-40347-P
________________________________________________________________________


                                      OPINION

      Appellant Tommy Lynn Cooper appeals the trial court’s Judgment and Order

Admitting Copy of Will to Probate as Muniment of Title wherein the trial court

admitted a copy of his mother’s will to probate as a muniment of title. Appellee

Susan Bolster filed a cross appeal regarding the trial court’s decision not to award

her attorneys’ fees. Finding no reversible error, we affirm the trial court’s judgment.




      1
       This case has been transferred from the former Montgomery County Court
at Law No. 2 to the newly created Montgomery County Probate Court No. 1.
                                        1
                                  I. Background

      While decedent Charlene Butts was married to her first husband, she gave

birth to Tommy, her only biological child.2 Charlene divorced her first husband, and

when Tommy was thirteen years old, Charlene married Billy Ray Butts, who had

three children of his own, including Susan Butts Bolster, Appellee. 3 Charlene and

Billy Ray remained married until Charlene died on March 26, 2008.

      In April 2005, Charlene and Billy Ray executed wills with similar inheritance

provisions. Each will bequeathed everything to the other, and named the other

spouse as executor. Each will also named the four children and stepchildren as

contingent beneficiaries, and named alternate executors; Charlene’s will named

Tommy and Susan, respectively, as alternate executors, and Billy Ray’s will also

named Susan and Tommy as alternate executors.

      Neither Billy Ray nor either of the alternate executors took any steps to

probate Charlene’s will within four years after Charlene died. Eight months before

Billy Ray died on May 25, 2018, he executed a transfer on death deed in favor of

Susan. This deed had the effect of transferring Billy Ray’s real property to Susan at

the time of Billy Ray’s death.



      2
          For ease of reference, we identify the parties and their family members by
their first names.
        3
          Billy Ray also had two adopted children who are expressly excluded from
inheriting under the terms of both Charlene’s and Billy Ray’s wills.
                                           2
      After Billy Ray’s death, Susan probated his will. In 2020, Susan also filed a

copy of Charlene’s will for probate as a muniment of title, in the attempt to show

that Billy Ray had inherited all of Charlene’s real estate when Charlene died, and

further that the real property identified in the transfer on death deed then passed to

Susan after Billy Ray’s death. Tommy contested Susan’s attempt to probate

Charlene’s will, alleging that the copy of Charlene’s Will could not be admitted to

probate more than four years after Charlene’s death, and that the lack of the original

will was evidence of Charlene’s revocation of her will during her lifetime. Tommy

argued that Charlene had died intestate, and that he accordingly inherited Charlene’s

community half of the real estate in question. Tommy also sought partition of the

land and the trial court severed the partition claim.4

      The trial court granted interlocutory partial summary judgment in favor of

Susan holding that Susan was not in default for failing to file the application to

probate Charlene Butts’ will as a muniment of title within four years of Charlene’s

death and granted a no-evidence summary judgment in favor of Susan on Tommy’s

claim to invalidate Billy Ray’s transfer on death deed. The case was then submitted

to the jury on a single issue: whether Charlene did or did not revoke her will. 5 The


      4
        The partition claim is also on appeal as case no. 09-22-00045-CV, and we
have entered a separate memorandum opinion on the partition.
      5
        The jury question, instructions, and response are as follows:
Was the document identified as Exhibit A-1 not revoked by decedent?
      “Decedent” or “Testator” means Charlene Butts.
                                          3
jury decided that Charlene did not revoke her will, and the trial court then entered a

Judgment and Order Admitting Copy of Will to Probate as Muniment of Title.

      We summarize the evidence before the trial court:

      A. Susan Bolster’s Testimony

      Susan testified that her stepmother Charlene died at the age of seventy on

March 26, 2008, in Montgomery County, Texas. At the time of Charlene’s death,

she had been married to Billy Ray for approximately thirty years. Susan identified

the copy of Charlene’s will admitted into evidence, and noted that the will named

Susan’s father, Billy Ray, as the executor. Charlene’s will also names Tommy and

Susan as alternate executors in the event that Billy Ray was unable or unwilling to

serve in that capacity. Billy Ray died in 2018. When probating Billy Ray’s will,

Susan realized that the real property was in both Charlene’s and Billy Ray’s name,


        “Contestant” means Tommy Cooper.
        A person may revoke a will by destroying or canceling the will, or by causing
it to be destroyed or canceled in her presence.
        You are instructed that when the original will cannot be produced, and it is
shown that when last seen it was in the possession of Testator or in a place to which
she had ready access, it is presumed that she has destroyed it with intent to revoke
it; however, no such presumption of revocation exists when the original will has
been traced to the hands of another than the Testator in which case it is presumed
the will has not been revoked unless the Contestant provides substantial evidence
that the Testator revoked her will.
Answer “It was not revoked” or “It was revoked.”
        The answer “It was not revoked” must be based on a preponderance of the
evidence. If you do not find that a preponderance of the evidence supports that
answer, then answer “It was revoked.”
        Answer: IT WAS NOT REVOKED
                                           4
and that Charlene’s will therefore needed to be probated. Susan testified that when

she found Charlene’s and Billy Ray’s wills after Billy Ray’s death, she gave Billy

Ray’s will to her attorney so that it could be probated, and she gave Charlene’s will

to Tommy. When Tommy could not produce Charlene’s original will, and denied

having it, Susan and her attorney filed a copy of Charlene’s will to be probated as a

muniment of title.

      Although Susan knew where the wills were kept, she did not look for them

until after her father died. She testified that she gave no thought to probating

Charlene’s will or to the joint ownership of the property until that time.

      B. Tommy Cooper’s Testimony

      Tommy, Charlene’s son, testified to the property that Charlene and Billy Ray

owned at the time of Charlene’s death. Tommy also recalled that Billy Ray worked

as a mechanic, and Charlene was an accountant for HW Daily, Inc. for thirty-five

years. In Tommy’s opinion, Charlene’s efforts and investment decisions were half

responsible for the size of Billy Ray’s estate, and she would have wanted Tommy to

benefit from her efforts. Tommy did not know what happened to Charlene’s original

will and testified that Susan did not give it to him.

      C. Tamara Paul’s Testimony

      Tamara Paul is the attorney who prepared Charlene’s and Billy Ray’s wills in

2005. She described the usual procedure for drafting and signing a will, noting that

                                           5
the witnesses to these wills were employees of her law firm, and that they knew what

they were witnessing. Paul testified that Charlene signed her will voluntarily,

appeared to be of sound mind at the time, and that the signing went according to the

usual procedure. According to the custom of her office, Paul gave Charlene the

original and one copy of the will.

      D. Vicki Hensarling’s Testimony

      Hensarling testified that she was Paul’s paralegal and sister-in-law at the time

Charlene signed her will. She confirmed Paul’s testimony regarding the usual

procedures involved in drafting and signing a will, and confirmed the exhibit as an

accurate copy of Charlene’s will.

      E. James Stilwell’s Testimony

      In an offer of proof, Stilwell, Susan’s attorney, testified to the reasonable and

necessary attorneys’ fees incurred in representing Susan. The trial court, however,

denied Susan’s request for attorneys’ fees to be awarded to her.

      F. Documentary Evidence

      A copy of Charlene’s will, dated April 21, 2005, was admitted into evidence,

as were copies of the inventory of Billy Ray’s estate, Susan’s affidavit, and the

transfer on death deed that Billy Ray executed on September 25, 2017.




                                          6
                            II. Issues Raised On Appeal

      Tommy raises two issues on appeal. First Tommy argues Susan lacked

standing. Second, Tommy contends the trial court erred in granting summary

judgment for Susan.

                              III. Standard of Review

      Because standing is a component of subject matter jurisdiction, we review it

de novo. See Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 

, 240 (Tex.

2020) (citations omitted). We also review the trial court’s ruling on a summary

judgment de novo. See SeaBright Ins. Co. v. Lopez, 

 (Tex.

2015) (citation omitted). Here, the motion for summary judgment was filed as a

traditional motion for partial summary judgment. When filing a motion for summary

judgment, the moving party has the burden to prove no genuine issue of material fact

exists, and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 

 (Tex.

2009). We review the evidence in the light most favorable to the party against whom

the summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not. See Mann Frankfort, 

 (citing City of Keller v. Wilson,

 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 

 (Tex. 2002)). When a movant provides evidence establishing its

                                           7
entitlement to summary judgment, the burden shifts to the nonmovant to present

evidence raising a genuine issue of material fact. Walker v. Harris, 

 (Tex. 1996).

      We review the denial of attorneys’ fees under an abuse of discretion standard.

See Shayn v. City of Houston, 

 (Tex. App.—Houston [14th Dist.]

2016, no pet.). A trial court abuses its discretion when it “acts without regard for any

guiding rules.” Caffe Ribs, Inc. v. State, 

 (Tex. 2016).

                                     IV. Analysis

      A. Standing

      The essence of Tommy’s standing argument is that because Billy Ray

survived Charlene by more than thirty days, Susan “had no interest under Charlene’s

will[,]” and therefore was not an “interested person” as defined in the Texas Estates

Code. See Tex. Est. Code. Ann. § 22.018(1).6 We disagree.

      The Estates Code expressly permits an “interested person” to “file an

application with the court for an order admitting a will to probate,” and defines

“interested person” as “an heir, devisee, . . . or any other [person] having a property

right in or claim against an estate being administered[.]” 

(1), 256.051(a). Our Supreme Court has broadly interpreted the statutory



      6
       Charlene’s will provided that any beneficiary not surviving her by thirty days
is deemed to have predeceased her.
                                         8
definition of “interested person” to include any person “‘possess[ing] a pecuniary

interest to be benefitted and affected by the probate of the will and one which would

. . . be[] materially impaired in the absence of its probate.’” Ferreira v. Butler, 

 (Tex. 2019) (quoting Logan v. Thomason, 

(Tex. 1947). Under this definition of “interested person,” Susan has a “pecuniary

interest to be benefitted” by the probate of Charlene’s will, and the probate of

Charlene’s will affects Susan’s pecuniary interest in the real estate in question. We

therefore hold that Susan has standing to apply to probate Charlene’s will. We

overrule Tommy’s first appellate point.

      B. Summary Judgment

      It is undisputed that neither Susan nor anyone else filed Charlene’s will for

probate within four years of Charlene’s death in 2008. Despite this delay, Susan

contended that she was not in default in applying to probate Charlene’s will because

she had no legal interest in Charlene’s will until Billy Ray died in 2018. See 

(a). Susan moved for a traditional summary judgment

relying on the holding in Ferreira. 

. In Ferreira, the Texas

Supreme Court applied the standard of § 256.003(a) of the Estates Code to an

untimely-filed application to probate a will as a muniment of title. The court held

that if the applicant was not in default, then any other person’s default was irrelevant,

and the will could be admitted to probate. Id. at 338 (emphasis original); Tex. Est.

                                           9
Code Ann. § 256.003(a). Because Susan applied to probate Charlene’s will in her

individual capacity, rather than as Billy Ray’s executor, and because Susan acted

within four years after Billy Ray’s death, Ferreira dictates that Susan “was not in

default in failing to present the will for probate on or before the fourth anniversary

of [Charlene’s] death.” 

; 

(a).

      Tommy argues that § 257.054 of the Estates Code governs the application as

a muniment of title and that provision contains different language than 256.003(a),

and there is a strict four-year limitation with no express exception for an applicant

who is “not in default.” Tommy also contends that this case is not governed by

Ferreira.

      We conclude that this case is governed by Ferreira. Like the instant case,

Ferreira dealt with an applicant filing a will for probate as a muniment of title. In

the intermediate court of appeals, the Houston Fourteenth Court found that the trial

court properly granted the no evidence motion for summary judgment in favor of

Patricia’s children because the court of appeals followed, Faris v. Faris, 

 (Tex. Civ. App.—Dallas 1940, writ ref’d), and Norman’s fault in failing to

probate Patricia’s will was attributed to Linda, and Linda failed to present any

summary judgment evidence raising a genuine issue of material fact that Norman

was not in default in failing to probate Patricia’s will within the four year limitations.

See Ferreira v. Butler, 

 (Tex. App.--Houston [14th Dist.]

                                           10
2017), vacated by 

 (Tex. 2019). Notably, the court of appeals did

not reach the question of whether the “not in default” exception language in Section

256.003(a) is available under Section 257.054. See 

. The

Texas Supreme Court expressly overruled Faris, and the Court reversed and

remanded the case back to the trial court to give Linda an opportunity to amend her

pleadings to pursue probate of Patricia’s will in her individual capacity. In doing so,

the Texas Supreme Court expressly construed the “not in default” language in

Section 256.003(a). 

. The Texas Supreme Court held that under

Section 256.003(a), “when an applicant seeks late-probate of a will in her individual

capacity, only the applicant’s conduct is relevant to determining whether she ‘was

not in default.’” 

.

      Here, Susan, in her individual capacity, sought to probate Charlene’s will as

a muniment of title, and she did so as an interested person. Susan averred that she

was not in default in reliance upon the reasoning in Ferreira. That is, Susan has

pleaded that she is an interested person whose interest in the estate did not arise until

the date of the death of Billy Ray. Her filing, therefore, was within the four-year

limitation period.

      Tommy argues that the “not in default” exception in Section 256.003(a) does

not apply to a muniment of title probate under Section 257.054. He also argues that

even if the “not in default” exception applies, Ferreira does not control because it is

                                           11
factually distinguishable from this case, and the trial court erred in granting a

summary judgment because there is a fact issue as to whether Susan was in default.

Tommy contends Susan knew the location of Charlene’s will, and the contents of

the will stating Charlene left everything to Billy Ray, and Susan knew that Susan

was named as a co-executor, and she failed to apply for probate within four years of

Charlene’s death. Susan argued she had no individual interest in Charlene’s will until

Billy Ray died because Charlene’s will bequeathed everything to Billy Ray. And it

was only after Billy Ray’s death that Susan acquired an interest in the property

conveyed to Billy Ray under Charlene’s will.

      The record established that Susan sought to probate Charlene’s will within a

reasonable time after Billy Ray died and after she became an “interested person” in

Charlene’s estate. See 

(1), 256.051(a). Under the

rationale of Ferreira, Billy Ray’s default cannot work against Susan to prevent her

from submitting the will for probate within four years after Charlene’s death. 

.

      Tommy contends that 256.003(a) does not apply to the application to probate

a will as a muniment of title. In order to probate a will as a muniment of title under

257.054, the applicant must first establish that there is a valid will. There are several

ways to apply to probate a will, but they all begin with Section 256.003 of the Estates

Code. See 

. Subsequent provisions of the Estates Code

                                           12
deal with what the procedural types of probate or purposes thereof: Section 257, et

seq., probates a will as a muniment only; Section 301, et seq., seeks the issuance of

Letters Testamentary or of Administration for either an independent, or dependent,

administration of the estate; and Section 501, et seq., seeks to have a will admitted

to probate in an out-of-state court to be accepted by the Texas court for subsequent

actions. 

 §§ 257.001-257.152; 301.001-310.006; 501.001-505.103.

      We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro

Plus, Inc., 

 (Tex. 2014). Our goal is to determine and give effect

to the Legislature’s intent. Tex. Mut. Ins. Co. v. Ruttiger, 

 (Tex.

2012). We look to and rely on the plain meaning of a statute’s words as expressing

legislative intent unless a different meaning is supplied, is apparent from the context,

or the plain meaning of the words leads to absurd or nonsensical results. Crosstex

Energy Servs., L.P., 

. We read words and phrases in a statute

“in context and construed according to the rules of grammar and common usage.”

Tex. Gov’t Code Ann. § 311.011. We construe the language of a statute so that each

part has meaning and no part is left out. Columbia Med. Ctr. of Las Colinas, Inc. v.

Hogue, 

 (Tex. 2008) (“The Court must not interpret the statute

in a manner that renders any part of the statute meaningless or superfluous.”). We

presume “the Legislature chooses a statute’s language with care, including each

word chosen for a purpose, while purposefully omitting words not chosen.” TGS-

                                          13
NOPEC Geophysical Co. v. Combs, 

 (Tex. 2011). A court must

take a statute as it finds it, and it must refrain from rewriting the Legislature’s chosen

text. Entergy Gulf States, Inc. v. Summers, 

 (Tex. 2009);

Pedernal Energy, LLC v. Bruington Eng’g, LTD., 

, 491-92 (Tex.

2017).

         The meaning of the word “will” in the Estates Code does not change from

one provision to the others in the Estates Code and there is no intention by the

Legislature to treat a will differently because it is admitted for the purposes of

opening an independent or dependent administration as opposed to being admitted

solely as a muniment of title. Ross v. St. Luke’s Episcopal Hosp., 

 (Tex. 2015) (“Determining legislative intent requires that we consider the statute

as a whole, reading all its language in context, and not reading individual provisions

in isolation.”). We find it significant that Ferreira was a muniment of title case. 7

And, there the Texas Supreme Court construed Section 256.003(a) and the “not in

default” exception and remanded the case to the trial court to allow the applicant to

replead her case and establish her entitlement to probate Patricia’s will as a

muniment of title more than four years after Patricia’s death.



      7
        The Supreme Court in Ferreria did not directly state the “not in default”
exception in section 256.003 applied to a will filed solely as a muniment of title
under 257.054, but it applied the Section 256.003(a) exception in a muniment of title
case. Ferreira v. Butler, 

 (Tex. 2019).
                                          14
      Some of the courts of appeals in recent years have acknowledged Section

256.003’s “not in default” exception does not expressly appear in Section 257.054,

but those courts either did not reach the issue and used only a Section 256.003

analysis, or generally found that Texas courts have been “liberal in permitting a will

to be offered as a muniment of title after the four-year limitation period has

expired.”8 See Matter of Estate of Masters, 

 (Tex. App.—El Paso

2022, no pet.) (affirming denying admission of will because of default under

256.003); In re Estate of Allen, 

 (Tex. App.—Eastland 2013, no pet.)

(affirming applicant’s admission of will under the exception in 256.003); Castillo v.

Castillo-Wall, No. 03-21-00081-CV, 

 *1 (Tex. App.—Austin,

May 6, 2022, no pet.) (mem. op.); Ramirez v. Galvan, No. 03-17-00101-CV, 

, * 2 (Tex. App.—Austin Jan. 10, 2018, no pet.) (mem. op.) (citation

omitted) (“Texas case law is quite liberal in permitting a will to be offered as a

muniment of title after the four-year limitation period has expired.”); Estate of Simo,

No. 13-16-00211-CV, 

, at *3 (Tex. App.—Corpus Christi-

Edinburg, Oct. 26, 2017, no pet.) (mem. op.). Based on the Texas Supreme Court’s



      8
         In the Matter of Estate of Masters, our sister court noted that each party on
appeal treats the default exception in section 256.003 as applying to section 257.054,
but explaining that “[w]hether the statute allows for an exception after four years for
wills filed as a muniment of title has not been raised by the parties, and we assume,
without deciding that the exception could apply.” 

, 151 n.3 (Tex.
App.—El Paso 2022, no pet.).
                                           15
decision in Ferreira and the overall structure of the Estates Code, we conclude that

the language in Section 256.003(a) also applies to the admission of a will for probate

as a muniment of title under Section 257.054.

      Having found that the “not in default” exception of Section 256.003(a) applies

to this matter, we must still address Tommy’s argument that there was a genuine

issue of material fact about whether Susan was “not in default.” Our review of the

motion for partial summary judgment is limited to the issues presented to the trial

court in the motion for partial summary judgment. Tex. R. Civ. P. 166a(c). While

the movant has the burden of showing there is no genuine issue of material fact, and

it is entitled to judgment as a matter of law, when a movant provides evidence

establishing its entitlement to summary judgment, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact. See Walker,

.

      Susan contends that the will was properly admitted as a muniment of title. The

muniment of title statute provides that “[a] court may admit a will to probate as a

muniment of title if the court is satisfied that the will should be admitted to probate

and the court: (1) it is satisfied that the testator’s estate does not owe any unpaid

debt, other than any debt secured by a lien on real estate; or (2) finds for another

reason that there is no necessity for administration of the estate.” See Tex. Est. Code

§ 257.001. “Probating a will as a muniment of title provides a means to probate a

                                          16
will quickly and cost-efficiently when there is no need for administration of the

estate.” In re Estate of Jackson, No. 14-16-00519-CV, 

, at *4

(Tex. App.—Houston [14th Dist.] Aug. 22, 2017, no pet.) (mem. op.); Kuhr v.

Smith, Nos. 03-20-00416-CV, 03-20-00425-CV, 03-20-00583-CV, 03-21-00114-

CV, 

, at *13 (Tex. App.—Austin Apr. 29, 2022) (no pet. (mem.

op). Susan attached evidence to her second motion for partial summary judgment

which consisted of Charlene’s will, Billy Ray’s Transfer on Death Deed, and an

Affidavit by Susan setting forth testimonial facts to support her contention that she

was not in default for failing to file Charlene’s will sooner. Susan avers that she

believed she had no interest in Charlene’s real property because she left everything

to Billy Ray. She stated she had no reason to probate Charlene’s will during the time

that Billy Ray was alive. Susan further swore that Billy Ray had an attorney prepare

a Transfer on Death Deed the year before his death which, upon his death, conveyed

an interest in what was previously Charlene’s community property interest. In light

of Ferreira, Susan has set forth sufficient evidence to support her claim that she is

not in default in filing Charlene’s will for probate.

      In response, Tommy answered the second motion for partial summary

judgment with the following evidence: Billy Ray’s Transfer on Death Deed to Susan,

Susan’s Affidavit of Death of Billy Ray, and Tommy averred that Charlene sold her

property so that she and Billy Ray could purchase their home, and eventually other

                                          17
lots around it. Tommy stated that he had received a copy of the will but he never

sought to probate Charlene’s will. Tommy claimed that Billy Ray was diagnosed

with dementia in late 2015 or 2016. He stated Susan moved in with Billy Ray in

2017 in order to care for him and make sure he took prescribed medicines. Tommy

stated that he assumed he and Susan would get together after Billy Ray’s death and

divide up the properties. In sum, Tommy produced some of the same evidence in

response to the second summary judgment that was produced by Susan and

described both of their relationships to Billy Ray after Billy Ray’s death. Tommy

produced no deposition testimony, nor any other admissible documents, or

testimony, to impeach Susan’s contention that she had no reason to probate

Charlene’s will until after Billy Ray’s death. Evidence does not create an issue of

material fact if it is “‘so weak as to do no more than create a mere surmise or

suspicion’” that the fact exists. See Kia Motors Corp. v. Ruiz, 

(Tex. 2014)). Tommy’s argument that his mother would not have wanted her interest

in the property to go, ultimately, to Susan are mere speculation (Charlene’s will

states she wanted everything to go to Billy Ray) and have no bearing on Susan’s

failure to probate Charlene’s will. His contentions do not raise a material fact issue

as to whether Susan was in default for the delay in filing Charlene’s will for probate

until after Billy Ray’s death. See Kuhr, 

, at *11 (applicant

mistakenly believed that a probate had already been done); In re Estate of Calvillo,

                                         18
No. 05-16-00661-CV, 

, at *6-7 (Tex. App.—Dallas Jan. 26, 2017,

no pet.) (mem. op.) (finding that proponent was not in default when she relied on

attorney who failed to promptly tend to her legal matter; proponent was not bound

by acts and omissions of her attorneys); and see In re Estate of Jackson, 2017, WL

3611920, at *4.

      We overrule Tommy’s second appellate issue.

      C. Attorneys’ Fees

      In her cross-appeal, Susan claims that the trial court erred in excluding

evidence of her attorneys’ fees and in declining to grant her request to be awarded

her attorneys’ fees under the Uniform Declaratory Judgment Act (UDJA). See 

. We review an award or denial of attorney’s

fees under the Declaratory Judgments Act for an abuse of discretion. See Preston

State Bank v. Willis, 

 (Tex. App.—Dallas 2014, pet.

denied) (citation omitted). The trial court has broad discretion in determining

whether to award attorney’s fees in a declaratory judgment action, and we will not

reverse a trial court’s decision absent a clear showing of an abuse of

discretion. See Oake v. Collin Cty., 

 (Tex. 1985) (citations

omitted).

      Although Susan prevailed in the trial court, and prevails in this court, she was

not entitled to attorneys’ fees as a matter of law. See Mahmood v. Fanasch, No. 09-

                                         19
05-134-CV, 

, at *8 (Tex. App.—Beaumont Nov. 17,

2005, no pet.) (mem. op.). Instead, under the declaratory judgment statute an

attorneys’ fee award is committed to the trial court’s sound discretion. 

 More

specifically, the section provides that “the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” (Emphasis added) 

. A court may determine that even fees shown to

be reasonable and necessary should not be awarded if such an award would not be

equitable and just. Bocquet v. Herring, 

 (Tex. 1998); Kings River

Trail Ass’n, Inc. v. Pinehurst Trail Holdings, L.L.C., 

 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied) (citations omitted). Based on this

record, we cannot say the trial court committed a clear abuse of discretion in denying

Susan an award of her attorneys’ fees.

      We overrule Susan’s sole point in her cross-appeal.

                                     V. Conclusion

      Susan was a person interested in Charlene’s estate, and we conclude that the

trial court did not err in granting a summary judgment regarding Susan’s timely

application to probate a copy of Charlene’s will as a muniment of title. We also

conclude that Susan has shown no entitlement to attorneys’ fees. Accordingly, we

affirm the trial court’s judgment.




                                          20
      AFFIRMED.


                                                JAY WRIGHT
                                                   Justice

Submitted on March 3, 2023
Opinion Delivered December 14, 2023

Before Golemon, C.J., Johnson and Wright, JJ.




                                      21