                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-412-CV


ESTATE OF ALBERTA REESE CONNALLY,
DECEASED

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              FROM PROBATE COURT NO.1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Murphy Ward a/k/a Mervin Leon Reese, 2 a beneficiary under

both the will and a trust signed by decedent Alberta Reese Connally (Alberta),

appeals from two orders entered by the probate court denying his motion for

declaratory judgment and denying his motion for summary judgment. In seven

issues, Appellant argues that the appointed judge abused his discretion by



      1
          … See Tex. R. App. P. 47.4.
      2
       … Appellant is currently incarcerated and is proceeding pro se on appeal,
just as he did in the probate court.
denying Appellant’s motion to recuse Judge King and that the probate court

abused its discretion by declaring that trust at issue had not been funded, by

denying his motion for constructive trust, by overruling his objections to the

amended inventory, and by denying his motion for sanctions. We will affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

                    A. The Will and the Unfunded Trust

      In her will, Alberta appointed Willie B. Scott Jones as independent

executrix and bequeathed to her all of Alberta’s personal property, as well as

the residuary. The will bequeathed Alberta’s home and all related policies or

proceeds of insurance to Lura W. Reese, Appellant, and Nersis Reese Ferguson,

per capita.

      Alberta thereafter signed a “Revocable One-Party Living Trust,” naming

Willie B. Jones as trustee. The trust instructed the trustee to sell Alberta’s

home and the adjoining lot and to distribute the proceeds one-half to Appellant

and one-half to Marie Connally and the trustee. The trust also instructed the

trustee to sell a 2001 Honda owned by Alberta, to place the proceeds into an

account named for Appellant, along with his part from the sale of the house and

lot, and to distribute a monthly check to him in the amount of $100.

Additionally, the trust document instructed the trustee to sell Longview

property owned by Alberta and to give one-third of the proceeds to Marie

                                      2
Connally, one-third to the trustee, and one-third to the account for Appellant to

be distributed monthly. The trust also named Appellant as the beneficiary of

all of the royalty rights owned by Alberta. Thus, Appellant stood to gain more

under the trust than under the will.

      After Alberta’s death, Jones applied for probate of the will and for the

issuance of letters testamentary. Jones also filed an application to determine

the effect of the revocable trust, arguing that it had never been funded.

      Based on her belief that the trust had never been funded, Jones gave

Appellant a document entitled “Consent To Probate Of The W ill Of Alberta

Reese Connally And Waiver Of Any Claim Under A Revocable Trust,” which he

signed. The document states that Appellant is a beneficiary under both the will

and the trust, that the trust was never funded, that he joins in the petition for

probate of Alberta’s will, and that he disclaims any and all interest in the trust.

Beneficiary Marie Connally signed a similar document, disclaiming her interest

in the trust.

      Thereafter, the probate court signed an order admitting the will to

probate.   Jones subsequently filed an inventory, appraisement, and list of

claims, which the probate court approved.




                                        3
            B. Appellant’s Request for Declaratory Judgment and
                     Complaints Regarding the Inventory

      Approximately fourteen months after the probate court approved the

inventory Appellant filed a request for a declaratory judgment, requesting that

the probate court make eight declarations regarding the trust. Appellant also

filed a “Complaint For Additional Inventory,” complaining that the inventory

filed by Jones failed to include the name listed on a Bank One account, the

name of the company issuing the oil royalty checks, and information about the

listed property in California.

      The probate court held a telephonic hearing on Appellant’s complaint for

additional inventory.3 Approximately a month later, on March 22, 2007, the

probate court sent a letter to the parties stating that “[a]s I indicate[d] during

our telephonic hearing, I am granting the complaint for additional inventory, but

I am declining to find the trust was ever funded.” The probate court instructed

Jones that the inventory should reflect more specific information on the bank

accounts and royalty interests and that the reference to the California property

should be deleted because the probate court did not have jurisdiction over




      3
       … The appellate record does not contain a copy of the transcript from
this hearing, and it is unknown whether the hearing was recorded.

                                        4
property located outside Texas. Jones thereafter complied with the probate

court’s instructions and filed an amended inventory.

                             C. Recusal Refused

      Before the probate court could sign a written order memorializing his

rulings concerning the telephonic conference, Appellant filed a motion to recuse

Judge King. Judge Joe Loving was assigned to hear Appellant’s motion to

recuse and denied it.

                             D. Dueling Motions

      Appellant thereafter filed a motion to impose a constructive trust, arguing

that the probate court should impose a constructive trust over “all the property

listed and unlisted within the inventory because fraud was committed against

the Trust Estate and its beneficiaries.” Specifically, Appellant contended that

the trust had been funded and that the trustee and her attorney fraudulently

obtained the waiver of Appellant’s interest in the trust.

      In response, Jones filed a motion for summary judgment and objection to

Appellant’s motion for constructive trust. Jones argued that Appellant’s motion

for constructive trust was without merit and that the relief he sought was

barred by the doctrine of res judicata because the probate court had already

ruled that the trust was never funded. Jones also asked that the probate court




                                       5
consider appointing an attorney ad litem to represent Appellant because he

continued to file allegedly meritless motions.

      Appellant filed a response to Jones’s res judicata motion for summary

judgment, arguing that Jones could not show that the trial court had ruled on

the issue of whether the trust had been funded. Appellant also claimed that he

was entitled to summary judgment as a matter of law on his motion to impose

a constructive trust because the executrix committed had fraud against the

trust estate.

      Jones thereafter filed a motion for sanctions. In the sanctions motion,

Jones again urged the probate court to appoint an attorney ad litem for

Appellant because of the allegedly meritless pro se motions Appellant had filed.

Appellant responded to the sanctions motion and filed a cross-motion for

sanctions.

                      E. Rulings on the Dueling Motions

      On October 9, 2007, the probate court held a telephonic hearing on the

motions it had before it, including both parties’ motions for summary judgment,

Appellant’s motion for constructive trust, and both parties’ motions for

sanctions. At the outset of the hearing, the probate court announced that it

was not going to grant either party’s motion for sanctions. Appellant argued

in support of his motion for summary judgment that he was misled by Jones

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and her attorney into waiving his rights under the trust. Appellant admitted

that he was not initially aware that both the will and the trust had been filed

with the probate court but that he had received a copy of both documents.

Appellant also stated that he was not aware that the probate court had ruled

against him on the trust and that he had not received a final judgment.

      The probate court stated on the record,

            [Appellant] in the March 22nd communication from the Court
      to you, as well to [Jones’s counsel], there was a rendition of
      judgment. A formal judgment has not been signed because of your
      motion to recuse the Court. Until that was resolved, I was unable
      to act on anything pending before the Court.
            Based on review of the pleadings and the evidence
      submitted, I’m going to decline to grant your motion for summary
      judgment on the basis that the Court has previously ruled and
      rendered judgment following the March – I believe it was the
      hearing on the declaratory judgment where you indicated that the
      trust had not been funded and therefore was not in existence or
      active and that the will was the dispositive document for
      [Alberta’s] estate.

      Appellant asked the probate court to rule that the waiver was invalid or

void. The probate court, however, denied his request, stating that such relief

had not been prayed for and that the matter had already been determined at the

last telephonic hearing. The probate court explained to Appellant that “res

judicata says that everything that was ruled upon or that could have been ruled

upon is now foreclosed.”




                                      7
      The next day, on October 10, 2007, the probate court signed two orders.

One order denied Appellant’s motion for summary judgment, denied the motions

for sanctions filed by both parties, and denied the motion for the appointment

of an ad litem for Appellant. The second order denied Appellant’s motion for

declaratory judgment, stating “that the inter vivos trust of the Decedent herein

dated December 23, 2004, was never funded”; ordered that the inventory

should be amended; and stated that “[a]ll other relief sought by either party

herein and not granted hereby is expressly denied.” 4 Appellant appeals the two

orders signed on October 10, 2007.




      4
       … The record includes a letter dated October 10, 2007, from the probate
court to the parties, which stated in pertinent part:

             As I indicated during our telephonic hearing, I am denying the
      Motion for Summary Judgment filed by [Appellant], principally on
      the ground that the issues raised have previously been ruled upon
      and are therefore res judicata.
             Following the telephonic hearing of February 13, 2007, the
      court made a rendition of judgment which it forwarded to all parties
      by mail. By the time [Jones’s counsel] forwarded an order to me
      for signature, a motion to recuse had been filed by [Appellant] and,
      consequently, the court could not act until the motion to recuse
      had been resolved.
             Further, I am denying the motions of both parties for
      sanctions.
             The Motion for Appointment of an Ad Litem is not well taken
      and has no basis in law. Therefore, it will also be denied.
             Enclosed with this letter are copies of orders on: 1) the
      February 13, 2007 hearing and 2) yesterday’s hearing.

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                              III. M OTION TO R ECUSE

      In his sixth issue, Appellant contends that the appointed judge, Judge Joe

Loving, should have granted Appellant’s motion to recuse the judge of the

probate court, Judge King.        Specifically, Appellant argues that he was

mistreated by the court clerk, whom Judge King should have required to be

courteous to litigants under Code of Judicial Conduct Canon 3B(4), and that

Judge King refused to make determinations regarding alleged wrongdoing by

Jones’s counsel. See Tex. Code Jud. Conduct, Canon 3B(4), reprinted in Tex.

Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 1997). Jones responds that

Appellant offered no evidence during the telephonic hearing to question the

integrity of Judge King or to indicate that he was biased.

      The denial of a motion to recuse is reviewed under an abuse of discretion

standard on appeal. See Tex. R. Civ. P. 18a(f). The Texas Supreme Court has

stated,

      ‘[J]udicial rulings alone almost never constitute a valid basis for a
      bias or partiality motion,’ and opinions the judge forms during a trial
      do not necessitate recusal ‘unless they display a deep-seated
      favoritism or antagonism that would make fair judgment impossible.
      Thus, judicial remarks during the course of a trial that are critical or
      disapproving of, or even hostile to, counsel, the parties, or their
      cases, ordinarily do not support a bias or partiality challenge.’

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001) (quoting

Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)).

                                         9
Furthermore, expressions of impatience, dissatisfaction, annoyance, and even

anger do not establish bias or partiality. Id. at 240. “A judge’s ordinary efforts

at courtroom administration—even a stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain immune.” Id. (quoting Liteky, 510

U.S. at 556, 114 S. Ct. at 1157).

      Here, we have no record from the telephonic conference held by Judge

Loving. The record, however, that we do have before us does not support

recusal. As noted above, any remarks made by the court clerk to Appellant

would not support a bias challenge. Moreover, the record reveals that Judge

King made every effort to accommodate Appellant, who is in prison, by holding

telephonic hearings on the motions he filed and that he granted Appellant’s

motion to have Jones amend the inventory. Having reviewed the record, we

hold that Judge King did not demonstrate a bias that would support recusal.

See In re K.M.K., No. 04-02-00144-CV, 2002 WL 31760938, at *1 (Tex.

App.—San Antonio Dec. 11, 2002, pet. denied) (holding that, after reviewing

the record, neither judge demonstrated a bias that would support recusal), cert.

denied, 540 U.S. 1127 (2004). We overrule Appellant’s sixth issue.




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                          IV. D ECLARATORY J UDGMENT

             A. Alleged Failure to Enter a Declaratory Judgment

      In his first issue, Appellant argues that the probate court abused its

discretion when it allegedly refused to render or enter a declaratory judgment

in the case. Specifically, Appellant interprets the probate court’s statement at

the February 13, 2007 telephonic hearing that it was “declining to find the trust

was ever funded” as a refusal to enter a declaratory judgment.         However,

Appellant’s first issue does not comport with his other issues on appeal in

which he complains that the probate court abused its discretion “when it

rend[ered] judgment against the appellant’s delcaratory judgment” and “when

it denied the appellant’s motion for declaratory judgment relief.” Because the

record   demonstrates      that   the    trial   court   entered   a   negative

declaration—declaring that the trust was never funded—on Appellant’s motion

for declaratory judgment, we overrule Appellant’s first issue. See Tex. Civ.

Prac. & Rem. Code Ann. § 37.003(b) (Vernon 2008) (permitting the declaration

to be either affirmative or negative in form and effect).

                      B. Effect of Declaratory Judgment

      In his second through fourth issues, Appellant argues that the probate

court abused its discretion by rendering judgment against his motion for

declaratory judgment; by granting Jones’s res judicata defense, thereby denying

                                        11
his motion for the imposition of a constructive trust; and by denying his motion

for summary judgment.      Because all three of Appellant’s arguments center

around the probate court’s declaration that the trust was never funded, we

begin with the declaratory judgment.

      We review declaratory judgments under the same standards as other

judgments and decrees. See Tex. Civ. Prac. & Rem. Code Ann. § 37.010

(Vernon 2008). The trial court’s decision, being one of law, will be upheld on

appeal if it can be sustained on any legal theory supported by the evidence. In

re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Truck Ins. Exch. v. Musick, 902

S.W.2d 68, 69–70 (Tex. App.—Fort Worth 1995, writ denied).

      Here, the record contains waivers from two of the beneficiaries of the

trust, including Appellant.   The waiver specifically states that “[t]he Trust

created was never funded so far as I can determine” and that the beneficiary

“DISCLAIM[S] any and all interest in the ALBERTA REESE CONNALLY TRUST

instrument.” The record also contains a copy of the trust instrument and an

application to determine the effect of the revocable trust, stating that the trust

was never funded. Because the probate court had evidence before it to support

its declaration, we hold that the trial court did not abuse its discretion by

declaring that the trust at issue was never funded.




                                       12
      The trial court initially announced this declaration in a letter to the parties

on March 22, 2007.       Although Appellant did not believe that the probate

court’s letter of March 22, 2007, constituted a rendition of judgment, his belief

is not the measure we use to determine whether judgment was rendered.

      Rendition of judgment and entry of judgment are distinct actions. See

Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). Judgments usually go

through three stages: rendition, reduction to writing, and entry. Oak Creek

Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex. App.—Waco 1988, no writ).

A trial court renders judgment by oral pronouncement of its decision in open

court or by a signed, written memorandum filed with the clerk. S & A Rest.

Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995). To constitute rendition,

the court’s pronouncement “must clearly indicate the intent to render judgment

at the time the words are expressed.” Id. at 858. After rendition, the trial

court or the prevailing party prepares a written judgment that is signed by the

court. In re Ruiz, 16 S.W.3d 921, 924 n.3 (Tex. App.— W aco 2000, orig.

proceeding). After the court signs the judgment, the trial court clerk enters the

written judgment on the minutes of the court. Burrell, 570 S.W.2d at 384.

      Here, we do not have a record from the telephonic hearing that was held

on February 13, 2007, so we cannot determine what was said in open court.

However, the March 22, 2007 letter from the probate court to the parties

                                        13
clearly constitutes a rendition of judgment based on the statement, “As I

indicate[d] during our telephonic hearing, I am granting the complaint for

additional inventory, but I am declining to find the trust was ever funded.” The

probate court affirmed this in its October 10, 2007 letter to the parties,

explaining that judgment had been rendered but that a formal judgment had not

been signed due to the motion to recuse. We therefore hold that the probate

court rendered judgment on March 22, 2007, when it declared that the trust

had never been funded.

      Because the probate court rendered judgment on Appellant’s motion for

declaratory judgment on March 22, 2007, it properly granted Jones’s res

judicata defense when Appellant later filed a motion for constructive trust

arguing that he had been fraudulently induced into signing the waiver. As the

probate court noted, Appellant had never asked prior to the declaration for the

probate court to hold that the waiver he signed was invalid or void. Because

of Appellant’s failure to timely ask for such relief, that issue was foreclosed

after the probate court declared that the trust had never been funded. See

Welch v. Hrabar, 110 S.W.3d 601, 607 (Tex. App.— Houston [14th Dist.]

2003, pet. denied) (stating that res judicata prevents the relitigation of

adjudicated claims or claims that could have been raised). Moreover, the record

reveals that the property at issue had already been distributed to the heirs

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named in the will, making Appellant’s request for the imposition of a

constructive trust moot.     And because Appellant’s motion for summary

judgment was based on the alleged necessity of a constructive trust, the

probate court did not abuse its discretion by denying his motion for summary

judgment in light of its previous rulings that declared that the trust had never

been funded and that Appellant’s argument for a constructive trust was barred

by res judicata.

      We therefore hold that the probate court did not abuse its discretion by

making the declaration, granting Jones’s res judicata defense, and by denying

Appellant’s motion for summary judgment. W e overrule Appellant’s second

through fourth issues.

                    V. O BJECTIONS TO A MENDED INVENTORY

      In his fifth issue, Appellant argues that the probate court erred by

overruling his written objections to the amended inventory, appraisement, and

list of claims. Jones responds that the probate court entered an order that it

felt the law required and that she complied with the order.

      The time line of events related to the inventory follows:

October 12, 2005         Jones filed her initial Inventory.

October 21, 2005         The probate court signed an order approving the initial
                         inventory.


                                       15
December 20, 2006       Appellant filed a complaint for an additional inventory.

February 13, 2007       Jones filed a response to Appellant’s complaint for an
                        additional inventory, and the probate court held a
                        telephonic hearing on Appellant’s complaint for
                        additional inventory.

March 22, 2007          The probate court sent a letter to the parties granting
                        Appellant’s complaint for additional inventory and
                        specifying the changes Jones needed to make to the
                        inventory.

June 5, 2007            Jones filed the amended inventory and a blank order
                        approving the inventory.

June 8, 2007            Appellant filed the motion to recuse Judge King.

June 19, 2007           Appellant filed a complaint alleging that the amended
                        inventory is erroneous.

July 6, 2007            Judge Joe Loving denied Appellant’s motion to recuse.

October 10, 2007        The probate court signed orders, including an order
                        related back to the February 13, 2007 telephonic
                        hearing, which specified how the inventory needed to
                        be amended.

      The record before us does not, however, contain a signed order approving

the amended inventory nor does it contain a ruling from the probate court on

Appellant’s complaint to the amended inventory. Although one of the probate

court’s orders from October 10, 2007, contains language that “[a]ll other relief

sought by either party herein and not granted hereby is expressly denied” and

would implicitly deny Appellant’s complaint, such language would not appear


                                      16
to encompass ruling on the amended inventory, which needs to be either

approved or disapproved—not denied. Such a ruling on the amended inventory

is a prerequisite for Appellant to bring his complaint on appeal. See Anderson

v. Anderson, 535 S.W.2d 943, 944 (Tex. Civ. App.—Waco 1976, no writ)

(stating that an order of the probate court approving or modifying the inventory

and appraisement has been held to be appealable). We therefore hold that

Appellant’s argument complaining about the amended inventory is not ripe

because there is no signed order approving the amended inventory.           We

overrule Appellant’s fifth issue.

                           VI. M OTION FOR S ANCTIONS

      In his seventh issue, Appellant argues that the probate court abused its

discretion by denying his motion for sanctions. Specifically, Appellant argues

that “to the extent that the court denied the motion because the appellant put

to its attention that it had not [given] fair notice, that was an abuse of

discretion, because the law require[s] fair notice” and that “to the extent that

the court . . . already had his mind made up to deny the sanctions without

taking judicial notice of the evidence and without ever hearing evidence—that

was an abuse of discretion.” Appellant contends that because the probate

court stated in its October 10, 2007 letter that “[t]he Motion for Appointment

of an Ad Litem is not well taken and has no basis in law,” the decision not to

                                      17
sanction Jones and her counsel was a clear abuse of discretion.           Jones

responds that Appellant’s arguments and the facts in the record fail to establish

legal bases for the imposition of sanctions.

      We review a ruling on a motion for sanctions under an abuse of discretion

standard. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). The test

under this standard “is not whether, in the opinion of the reviewing court, the

facts present an appropriate case for the trial court’s action, but ‘whether the

court acted without reference to any guiding rules and principles.’” Id. The

trial court’s ruling should be reversed only if it was arbitrary or unreasonable.

Id. Moreover, rule 13 requires courts to presume that pleadings are filed in

good faith. Tex. R. App. P. 13; GTE Commc’ns Sys. Corp. v. Tanner, 856

S.W.2d 725, 731 (Tex. 1993).         The burden is on the party moving for

sanctions to overcome this presumption. Tanner, 856 S.W.2d at 731.

      Here, although the probate court stated in its October 10, 2007 letter to

the parties that “[t]he Motion for Appointment of an Ad Litem is not well taken

and has no basis in law,” it had the discretion to choose whether to award

sanctions and chose not to. After reviewing the record, we cannot say that the

probate court’s decision was arbitrary or unreasonable. We therefore hold that

the trial court did not abuse its discretion by denying Appellant’s motion for

sanctions.   See Wilson v. W achsmann, No. 03-04-00504-CV, 2006 WL

                                       18
1865522, at *6 (Tex. App.—Austin July 7, 2006, no pet.) (mem. op.)

(concluding that district court did not abuse its discretion by denying the

Wilsons’ motion for sanctions, which was based on filing groundless pleadings);

Yamaha Suzuki of Tex., Inc. v. Martinez, No. 10-02-00239-CV, 2004 WL

1588258, at *1–2 (Tex. App.—Waco July 14, 2004, pet. denied) (mem. op.)

(holding that no abuse of discretion occurred in the denial of the motion for

sanctions even though the party moving for sanctions contended that the other

party had filed petitions and affidavits that contained false statements). We

overrule Appellant’s seventh issue.

                               VII. C ONCLUSION

      Having overruled Appellant’s seven issues, we affirm the two October 10,

2007 orders of the probate court that Appellant challenges in this appeal.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DELIVERED: October 9, 2008




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