                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-18-00900-CV

                        IN THE ESTATE OF Marjorie A. CHILDS, Deceased

                          From the Probate Court No. 2, Bexar County, Texas
                                     Trial Court No. 2014PC0056
                              Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Irene Rios, Justice
                  Beth Watkins, Justice

Delivered and Filed: April 22, 2020

AFFIRMED

           Mollie Allen Childs appeals a judgment declaring an agreement between Mollie and her

two sisters regarding the ownership of two brokerage accounts to be valid and enforceable based

on a jury’s findings. The jury found the agreement was supported by consideration and Mollie’s

failure to comply with the agreement was not excused by a mutual mistake. On appeal, Mollie

challenges the legal and factual sufficiency of the evidence to support the jury’s findings. Mollie

also challenges the award of attorney’s fees. We affirm the probate court’s judgment.

                                              BACKGROUND

           This is the second appeal to this court from the underlying probate case. In the first appeal,

this court reversed a summary judgment in Mollie’s favor holding “Mollie did not conclusively

establish either the lack of consideration or a mutual mistake of material fact.” In re Estate of
                                                                                    04-18-00900-CV


Childs, No. 04-15-00623-CV, 2016 WL 3452624, at *4 (Tex. App.—San Antonio June 22, 2016,

no pet.) (mem. op.) (Childs I). We then remanded the cause for further proceedings. Id.

       Mollie, Susan Addison, and Pamela McCaskill are the three daughters of Marjorie Allen

Childs. Marjorie was the only daughter of Bertha Allen.

       Bertha’s friend, Alma Fehr, bequeathed Bertha some shares of stock in Fehr Baking

Company. By the time Bertha executed her will in 1980, the shares of stock in Fehr Baking

Company had been converted into shares of stock in Campbell Taggart Associated Bakeries, Inc.

Bertha’s will devised those shares of stock under the following provision of her will:

                                                II.
           I give all shares of stock owned by me in Campbell Taggart Associated
       Bakeries, Inc. at the time of my death to my daughter, Marjorie Allen Childs, with
       the request that she use only the income in cash dividends from said shares during
       her lifetime and that on her death she make provision for said shares to be divided
       equally among her daughters, or the issue of any deceased daughter. Should it
       become wise at any time to sell these shares, it is my desire that the proceeds, or
       any reinvestment of the proceeds, be held and disposed of by my daughter at her
       death in the same manner.

Bertha passed away in 1981. At some point, Campbell Taggart was acquired by Anheuser Busch

Companies, and the Campbell Taggart shares then held by Marjorie were converted into shares of

stock in Anheuser Busch.

       In 1992 or 1993, Marjorie placed some of the Anheuser Busch shares into a joint brokerage

account which she and Mollie could use as leverage to borrow and invest in other stock. Mollie

testified the purpose of opening the brokerage account was to diversify Marjorie’s assets. While

the shares were held in the brokerage account, Marjorie continued to receive the income from the

dividends paid on the shares while Mollie received all other income generated by the brokerage

account. At some point, the brokerage account was closed. Some of the shares transferred to the

brokerage account were sold to pay the brokerage account debt that was owed, and the remaining




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shares were placed into an account held by a revocable trust. Marjorie and Mollie were the co-

trustees of the trust, and Mollie, Pamela, and Susan were the beneficiaries.

        On November 20, 2008, Marjorie executed a will containing the following provision

regarding the shares of stock she was bequeathed by Bertha:

             Pursuant to the requirements of the life estate created for my benefit under
        Section II of the Will of Bertha Allen, the Anheuser Busch stock, which is derived
        from the Campbell Taggart Associated, Inc., stock addressed in the aforementioned
        Section II of Bertha Allen’s Will, shall be distributed to my daughters and their
        descendants, per stirpes. Furthermore, and also pursuant to the requirement of the
        life estate created for my benefit under Section II of Bertha Allen’s Will, if at the
        time of my death I no longer own the Anheuser Busch stock, then the proceeds or
        reinvestment of the proceeds shall be distributed to my daughters and their
        descendants, per stirpes.

        In late 2008, Anheuser Busch was acquired by another company, and the Anheuser Busch

shares held by Marjorie were redeemed by the acquiring company for approximately $5.8 million.

The Anheuser Bush shares then held by the trust were apparently redeemed in a separate

transaction than the shares that were never transferred to the brokerage account. The money paid

for the shares held by the trust, approximately $1 million, was used to open a transfer on death

brokerage account with Raymond James & Associates, Inc. The money paid for the other shares,

approximately $4.8 million, was used to open a transfer on death brokerage account with RBC

Correspondent Services which the parties generally refer to as the Federated Securities account. 1

        Mollie testified she prepared the account applications for both accounts which Marjorie

then signed. The Raymond James account listed Mollie as the only beneficiary. The Federated

Securities account listed Mollie, Pamela, and Susan as beneficiaries. Although Pamela and Susan

received statements for the Federated Securities account and were able to request trades in that

account, they did not receive any information regarding the Raymond James account.


1
 The account application refers to RBC Correspondent Services while the account statements refer to Federated
Securities.


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       After the Anheuser Busch stock redemption, Pamela, Susan, and Mollie began exchanging

e-mails regarding the transfer on death accounts and the terms of Bertha’s and Marjorie’s wills.

Pamela, Susan, and Mollie all initially believed Bertha’s will gave Marjorie a life estate in the

shares of stock she received under Bertha’s will with Pamela, Susan, and Mollie as equal

remaindermen. In the e-mails, Pamela and Mollie discussed whether the transfer on death accounts

altered that disposition in the wills. Although Susan was not as involved in the discussion, she

was copied on several e-mails, and sent at least one e-mail asking about the Raymond James

account. As a result of their discussions, Pamela, Mollie, and Susan entered into an agreement in

2012 which provided, in pertinent part as follows:

                           Agreement Regarding Remainder Interests
                                 Of Bertha Allen Life Estate

           Pamela Ann Childs McCaskill (Pam), Susan Kaye Childs Addison (Susan), and
       Mollie Allen Childs (Mollie) are the three daughters and only children of Marjorie
       A. Childs. For value received and hereby acknowledged Pam, Susan and Mollie
       hereby agree as follows:
           The entire assets subject to the life estate created by the will of Bertha Allen
       and referenced in the will of Marjorie A. Childs signed November 20, 2008, are
       contained within 2 brokerage accounts styled “Mollie Childs POA U/W Bertha
       Allen DTD 12/5/2008 FBO Marjorie Childs Life Tenant”. One brokerage account
       is held under account [number] at Federated Securities, the other under account
       [number] at Raymond James & Associates. In the event Pamela, Susan and Mollie
       are living at the time of death of Marjorie A. Childs, the accounts are to be divided
       and distributed as follows:
          The Federated Securities account to be split equally and distributed between
       Pam and Susan; the Raymond James account to be distributed in its entirety to
       Mollie.
           In the event one or two of the distributees predeceases Marjorie A. Childs, that
       portion of the assets subject to the life estate that would have been distributed to
       the heir/heirs shall be distributed in equal parts to the surviving heir/heirs named
       under the wills of Bertha Allen and Marjorie A. Childs.

       Marjorie died on December 17, 2013. After Marjorie’s will was admitted to probate,

Mollie filed a lawsuit seeking a declaratory judgment that the 2012 agreement was unenforceable




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based on mutual mistake or lack of consideration. Pamela and Susan filed various counterclaims

including counterclaims seeking to declare the 2012 agreement was valid and enforceable. As

previously noted, the probate court initially granted summary judgment in Mollie’s favor;

however, this court reversed the judgment and remanded the cause to the probate court for further

proceedings. See id.

       Prior to trial, Pamela and Mollie settled their claims against each other. After three days

of evidence was presented to the jury, the jury was charged with answering the following questions

on the issues of consideration and mutual mistake:

       QUESTION NO. 1:

           With respect to the 2012 Agreement [PX26], do you find that Mollie did receive
       a benefit or Susan did incur a detriment?

       Answer “Yes” or “No.”

       Answer: ___________

       QUESTION NO. 2:

          Was Mollie Child’s failure to comply with the 2012 Agreement [PX26]
       excused?

       Failure to comply with an agreement is excused if the agreement was made as the
       result of a mutual mistake.

       A mutual mistake results from a mistake of fact common to both parties if both
       parties had the same misconception concerning the fact in question. A mistake by
       one party but not the other is not a mutual mistake.

       A mistake of persons as to their private legal rights and interests is a mistake of
       fact.

       Answer “Yes” or “No.”

       Answer: ___________




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The jury answered the first question “yes” and the second question “no.” 2 After denying Mollie’s

motion for a judgment notwithstanding the verdict, the probate court entered judgment declaring

the 2012 agreement to be valid and enforceable and awarding Susan attorney’s fees. The probate

court subsequently denied Mollie’s motion for new trial. Mollie appeals.

                                                  SUFFICIENCY

         In her first two issues, Mollie challenges the legal and factual sufficiency of the evidence

to support the jury’s findings.

A.       Burden of Proof

         Mutual mistake is an affirmative defense. Santos v. Mid-Continent Refrigerator Co., 471

S.W.2d 568, 569 (Tex. 1971) (per curiam); Garza v. Villarreal, 345 S.W.3d 473, 483 (Tex. App.—

San Antonio 2011, pet. denied). “‘The hallmark characteristic’ of an affirmative defense ‘is that

the burden of proof is on the defendant to present sufficient evidence to establish the defense and

obtain the requisite [jury] findings.’” Teal Trading & Dev., LP v. Champee Springs Ranches Prop.

Owners Ass’n, 593 S.W.3d 324, 333 (Tex. 2020) (quoting Zorrilla v. Aypco Constr. II, LLC, 469

S.W.3d 143, 156 (Tex. 2015)).

         “The existence of a written contract . . . presumes consideration for its execution.” TLC

Hosp., LLC v. Pillar Income Asset Mgmt., Inc., 570 S.W.3d 749, 761 (Tex. App.—Tyler 2018, pet.

denied); accord Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.—San Antonio 2005, no

pet.).   “[T]he party alleging lack of consideration has the burden of proof to rebut th[e]

presumption.” 3 TLC Hosp., LLC, 570 S.W.3d at 761; accord Doncaster, 161 S.W.3d at 603.


2
  Because the jury answered “no” to the second question, the jury did not answer the following additional question
because it was premised on a “yes” answer to the second question: “Did Susan Addison substantially rely to her
detriment on Mollie Childs’ promise, if any, and was this reliance foreseeable by Mollie Childs?”
3
  We disagree with Mollie’s contention that the jury charge altered this burden of proof. We also note this court has
generally stated “what constitutes consideration is a question of law.” Phila. Indem. Ins. Co. v. White, No. 04-12-
00721-CV, 2017 WL 32899, at *4 (Tex. App.—San Antonio Jan. 4, 2017, no pet.) (mem. op.). But see Hous. Med.
Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, 696 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“As an initial


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                                                                                                      04-18-00900-CV


B.       Standard of Review

         “The test for legal sufficiency is ‘whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review.’ We credit evidence favoring the finding

if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder

could not.” Teal Trading & Dev., LP, 593 S.W.3d at 333 (quoting City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005)). “A legal sufficiency challenge fails if more than a scintilla of

evidence supports the finding.” Tex. Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex.

2019).

         In reviewing a factual sufficiency issue, we consider all the evidence supporting and

contradicting the finding. Plas–Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

“When a party attacks the factual sufficiency of an adverse finding on an issue on which she has

the burden of proof, she must demonstrate on appeal that the adverse finding is against the great

weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001). In our review, we “must consider and weigh all of the evidence, and can set aside a verdict

only if the evidence is so weak or if the finding is so against the great weight and preponderance

of the evidence that it is clearly wrong and unjust.” Id.

         When reviewing the sufficiency of the evidence supporting a jury’s findings, “we do not

serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of

the trier of fact, even if there is conflicting evidence upon which a different conclusion could be


matter, it was unnecessary for the jury to find that consideration supported the parties’ agreement because the question
of consideration, while sometimes based upon ultimate facts found by the jury, is generally a question of law.”); Sibley
v. Lawson, No. 11-12-00235-CV, 2014 WL 4347837, at *5 (Tex. App.—Eastland Aug. 29, 2014, no pet.) (mem. op)
(“The parties’ dispute regarding the consideration supporting the 2006 note is a genuine issue of material fact that
precludes summary judgment.”). However, both the Texas Supreme Court and this court in Childs I have reversed
summary judgments, holding the absence of consideration was not conclusively established, and, in its decision, the
Texas Supreme Court remanded the cause for “a trial on the merits.” Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d
492, 496 (Tex. 1991); In re Estate of Childs, 2016 WL 3452624, at *4. On appeal, neither party raises a challenge to
the submission of the issue to the jury.


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supported.” Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App.—San Antonio 2006, no pet.).

“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.

They may choose to believe one witness and disbelieve another.” City of Keller, 168 S.W.3d at

819 (footnote omitted).

C.      Consideration

        As this court asserted in Childs I:

        “Consideration is a bargained-for exchange of promises or return performance and
        consists of benefits and detriments to the contracting parties. . . . The surrender of
        a legal right constitutes valid consideration to support a contract.” Marx v. FDP,
        LP, 474 S.W.3d 368, 378 (Tex. App.—San Antonio 2015, pet. denied). “The
        compromise of doubtful and conflicting claims is good and sufficient consideration
        to uphold a settlement agreement.” Garza v. Villarreal, 345 S.W.3d 473, 483 (Tex.
        App.—San Antonio 2011, pet. denied). “To constitute valid consideration,
        forbearance to sue must be upon a right asserted in good faith, and as to a contention
        which the party relying on the forbearance had reasonable grounds for believing
        would be upheld.” S.A. Dome, L.L.C. v. Maloney Dev. P’ship, Ltd., No. 04-04-
        00586-CV, 2005 WL 1398106, at *3 (Tex. App.—San Antonio June 15, 2005, no
        pet.) (mem. op.).

2016 WL 3452624, at *3.

        Under the facts of this case, we find the Eastland court’s decision in Iden v. Ackerman, 280

S.W.2d 643 (Tex. App.—Eastland 1955, writ ref’d), instructive. In Iden, Ellis and Dorothy Iden

filed a suit against Mildred Ackerman and Helen Clanton seeking to rescind and cancel a mineral

deed which conveyed to Mildred and Helen a mineral interest in an eighty-acre tract of land. Id.

at 644–45. Mildred and Helen were the daughters of Clyde and Effie McKee, and Dorothy was

the sister of either Clyde or Effie. Id.

        In 1934, Clyde and Effie purchased an eighty-acre tract of land, executing two vendor’s

lien notes as part of the consideration for the purchase which notes constituted community debt.

Id. After Effie died intestate in 1935, Clyde was unable to pay the vendor’s lien notes, so he




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conveyed the eighty-acre tract of land to Ellis who assumed the debt as partial consideration for

the conveyance. Id. at 645. Ellis subsequently paid the vendor’s lien notes in full. Id.

       In 1954, Mildred filed an affidavit in the deed records reciting that she and Helen owned

and claimed an interest in the eighty-acre tract of land as Effie’s heirs. Iden, 280 S.W.2d at 645.

A few days later, Ellis and Dorothy executed a mineral deed conveying a mineral interest in the

land to Mildred and Helen, and, in exchange, Mildred and Helen executed a quitclaim deed

conveying to Ellis and Dorothy any interest they had in the surface estate of the land. Id. In their

subsequent suit, Ellis and Dorothy asserted the quitclaim deed did not convey any interest to them

because Mildred and Helen did not have any interest in the land. Id. Therefore, Ellis and Dorothy

alleged the mineral deed and the quitclaim deed lacked consideration. Id.

       After a bench trial, the trial court entered judgment in favor of Mildred and Helen, finding

the parties entered into a settlement agreement which they made effective by executing the deeds.

Id. at 646. On appeal, Ellis and Dorothy asserted no evidence existed of a dispute between the

parties at the time the settlement was purportedly consummated. Id. Iden rejected the assertion:

           We cannot agree with the contention that the contract of compromise and
       settlement was without consideration. Generally, a mutual agreement to
       compromise a dispute is of itself a valuable consideration sufficient to support the
       contract. It was found by the court and appellants concede that Mildred Ackerman
       and Helen Clanton, in good faith, believed that they, as heirs of their mother, owned
       an interest in the land. The evidence shows that appellees were pressing their claim.
       Under such circumstances there was a valuable consideration for a contract of
       compromise in compliance with which deeds were exchanged vesting in the parties
       agreed interests in the land.

Id. (citations omitted). The court further noted the disputed claim was sufficient consideration

even though Mildred and Helen’s claim was in fact “unfounded.”              Id. (quoting 15 C.J.S.

Compromise & Settlement § 11); see also Burgamy v. Davis, 313 S.W.2d 365, 367 (Tex. App.—

Fort Worth 1958, no writ) (“The test is not whether the debtor was correct in his contention, in

that he really had a legal or equitable defense to the claim in whole or in part, but consists in the


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                                                                                                 04-18-00900-CV


fact that he in good faith urged or asserted a defense which he really believed was substantial.”);

In re Swift, 198 B.R. 927, 939 (Bankr. W.D. Tex. 1996) (“It is settled law that an agreement to

release a claim held in good faith, even if the claim in fact turns out to be without merit, is sufficient

consideration to support a compromise and settlement.”). Therefore, having found “there was

evidence of a dispute between the parties at the time of the compromise agreement,” the court held

the agreement was supported by consideration. Iden, 280 S.W.2d at 646. After further rejecting

Ellis and Dorothy’s argument regarding a mutual mistake, the court stated the law and equity favor

settlements among family members:

        Voluntary compromise settlements, . . . among members of the same family . . .
        where a claim is asserted in good faith by one or more of the parties and they
        intentionally put an end to all controversy by a voluntary transaction in the way of
        a compromise, are highly favored by courts of equity. They will not be disturbed
        for any ordinary mistake either of law or fact. Where all parties have the same
        knowledge, or means of obtaining knowledge, in respect to the circumstances
        concerning their rights, and there is no fraud, misrepresentation, concealment or
        conduct otherwise inequitable on the part of the other party, voluntary settlements
        entered into should be upheld, although the final issue may be different from that
        which was anticipated, and although the disposition made by the parties in their
        agreement may not be that which the court would have decreed had the dispute
        been brought before it for decision.

Id. at 647 (quoting Wedegartner v. Reichert, 218 S.W.2d 304, 309 (Tex. App.—Waco 1948, writ

ref’d n.r.e.)).

        In the instant case, the e-mails exchanged between Mollie, Pamela, and Susan are evidence

of a dispute between them regarding their respective rights under the wills and the effect of the

transfer on death accounts on those rights. Although Susan may have been less vocal in the

dispute, there is sufficient evidence that she had the same dispute and concern as evidenced by her

specific request for information regarding the Raymond James account. 4 We recognize that the


4
  We note the evidence included Pamela’s response to an e-mail from Mollie dated March 4, 2012. In Mollie’s e-
mail, she pleads with Pamela not to “do this” in response to Pamela’s e-mail informing Mollie she would be hearing
from her “directly” after she had spoken with Susan “or you and mother will be hearing from someone representing


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probate court subsequently entered a partial summary judgment concluding that the bequeath of

the Campbell Taggert stock in Bertha’s will conveyed the stock “outright to her daughter, Marjorie

Childs, and did not create a life estate.” But the fact that the dispute was unfounded under the law

does not affect the jury’s finding that consideration existed. See Iden, 280 S.W.2d at 646. Just as

Mildred and Helen were “pressing their claim” that they owned an interest in the land in Iden, see

id., the jury could find from the evidence in the instant case that Susan was also “pressing [her]

claim” that she was entitled to one-half of the Federated Securities account. Susan based her claim

on the life estate she believed was created by Bertha’s will and the prior conveyance of stock into

the joint brokerage account—from which Mollie received income of an undisclosed amount and

which resulted in the sale of some shares of stock to pay off the account debt at the time the account

was closed. 5

         In her reply brief, Mollie asserts the 2012 agreement was not a family settlement agreement

as that term is used in the probate context. We agree. See In re Estate of Lee, 551 S.W.3d 802,

816 n.10 (Tex. App.—Texarkana 2018, no pet.) (“The Agreement is not properly classified as a

family settlement agreement because it does not dispose of all of the estate’s property.”); In re

Estate of Halbert, 172 S.W.3d 194, 200 n.11 (Tex. App.—Texarkana 2005, pet. denied) (noting

family settlement agreements “must contain both an agreement not to probate a will and an agreed

plan of distribution to replace the plan set forth in the will”). We disagree, however, that this

affects the jury’s finding. A settlement agreement is favored in law and equity in the probate

context even if the agreement is not considered a “family” settlement agreement.                                  See


us.” In Pamela’s response to Mollie’s plea, Pamela informed Mollie that Susan’s attorney told her she had a case
three years ago, and Susan had not spoken to Pamela since Pamela would not join her in a lawsuit. Pamela further
noted, “She said that you would probably continue to try and screw us—and based upon the last four years of doing
battle with you over almost everything to do with the RBC account and your last e[-]mail it is clear to me that perhaps
she was correct.”
5
  The jury could also have found from the evidence that one-third of the total number of shares of Anheuser Busch
stock then held by Marjorie had been transferred to the joint brokerage account.


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Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997) (“Texas law favors and

encourages voluntary settlements and orderly dispute resolution.”).

          We overrule Mollie’s first issue.

D.        Mutual Mistake

          Mollie next challenges the sufficiency of the evidence to support the jury’s finding that her

compliance with the 2012 agreement was not excused by a mutual mistake of fact. Specifically,

Mollie contends Pamela’s, Susan’s, and her belief—that Bertha’s will created a life estate—was a

mutual mistake of fact.

          The jury was properly instructed in the charge that “[a] mistake of persons as to their private

legal rights and interests is a mistake of fact.” 6 See Herrmann v. Lindsey, 136 S.W.3d 286, 292

(Tex. App.—San Antonio 2004, no pet.) (“[I]f the parties at issue enter into the contract based on

a mutual mistake about some legal right a party possesses or does not possess prior to the contract

at issue, the party may be entitled to rescission of the contract on equitable grounds.”); Furnace v.

Furnace, 783 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.] 1989, writ dism’d w.o.j.)

(quoting Columbian Nat’l Fire Ins. Co. v. Dixie Co-op, 276 S.W. 219, 221–22 (Tex. Comm’n App.

1925, judgm’t adopted)) (noting a contract may be set aside if it was based on a mutual mistake as

to private legal rights and interests). One of the factual issues the jury was required to consider in

answering this question was whether Mollie was actually mistaken about the existence of the life

estate.




6
  We note “it is the court’s charge, not some other unidentified law, that measures the sufficiency of the evidence
when the opposing party fails to object to the charge.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Although
we acknowledge this instruction was discussed during the jury charge conference, it is unclear whether Susan was
objecting to the instruction as not being a correct statement of the law as opposed to not being law applicable to the
facts of the case. On appeal, Susan contends the question regarding mutual mistake should not have been submitted,
not that the instruction was an erroneous statement of the law.


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        At trial, Mollie initially testified she first discovered Bertha’s will contained “precatory

language,” which resulted in an outright bequest of the stock to Marjorie as opposed to the creation

of a life estate, when the probate court judge made reference to that term during the hearing on

Susan’s contest to her appointment as independent executor. See Knopf v. Gray, 545 S.W.3d 542,

547 n.7 (Tex. 2018) (per curiam) (“Precatory language requests, recommends, or expresses a desire

rather than a command.”). Evidence was presented, however, that Mollie referenced that term in

an e-mail to Pamela on March 1, 2009, more than three years before the 2012 agreement was

signed. In that e-mail, Mollie referred to Marjorie choosing “to pass [the stock] on to us” and

asserted “you may or may not accept that she had a choice but the precatory language of the will

[Bertha] wrote did leave mom the choice.” In an earlier e-mail to Pamela dated February 28, 2009,

Mollie asserted “please understand that when mom revised her will this year, she decided to follow

grandmother’s will but she was not obligated to do so . . . . [I]t is and always has been mother’s

money.” Finally, in a subsequent e-mail to Pamela also dated February 28, 2009, Mollie quotes

an e-mail she sent to Susan which stated, “Please keep in mind the account is and always has been

mother’s property . . . .”

        Mollie’s brief cites to evidence the jury could consider in finding she believed Bertha’s

will created a life estate and that Marjorie’s will controlled over the transfer on death accounts,

including e-mails in which Mollie reassures Pamela and Susan that Marjorie’s will controls over

the transfer on death accounts. 7 The jury, however, was free to believe Mollie took actions and

made reassurances despite believing the “precatory” language in Bertha’s will did not create a life

estate and that the transfer on death accounts would control. See City of Keller, 168 S.W.3d at

819. Such a finding was particularly within the jury’s province given Mollie’s initial testimony


7
  In her reply brief, Mollie emphasizes the references to life estate in the 2012 agreement; however, the jury was
required to consider all the evidence.


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that she first heard the term “precatory” from the probate court judge. See id. Because we defer

to the jury’s assessment regarding the credibility of the witnesses and the weight to be given the

evidence, and because the jury may choose to believe some statements made by Mollie and to

disbelieve others, we conclude the evidence is legally and factually sufficient to support the jury’s

finding that Mollie was not excused from complying with the 2012 agreement. See id.

           We overrule Mollie’s second issue.

                                                 ATTORNEY’S FEES

           In her final issue, Mollie contends the probate court abused its discretion in awarding Susan

$184,319.20 in attorney’s fees because (1) the award was not just and equitable, 8 and (2) Susan

failed to segregate her fees among her various counterclaims.

           Because Susan sought a declaratory judgment, Mollie concedes the probate court was

statutorily authorized to award “reasonable and necessary attorney’s fees as are equitable and just.”

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. Under section 37.009, “[t]he decision of

whether to award attorney’s fees is within the discretion of the trial court, but the question of

whether attorney’s fees are equitable and just is a question of law.” City of Lorena v. BMTP

Holdings, L.P., 409 S.W.3d 634, 646 (Tex. 2013). “The determination of what fees are equitable

and just is ‘not susceptible to direct proof but is rather a matter of fairness in light of all the

circumstances.’” Minihan v. O’Neill, No. 04-18-00847-CV, 2020 WL 444381, at *9 (Tex. App.—

San Antonio Jan. 29, 2020, no pet.) (mem. op.) (quoting Ridge Oil Co. v. Guinn Invs., Inc., 148

S.W.3d 143, 162 (Tex. 2004)).




8
    The parties stipulated the fees were reasonable and necessary.


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                                                                                       04-18-00900-CV


A.     Equitable and Just Fees

       Here, Susan prevailed at a jury trial, and based on the jury’s findings, the probate court

declared the 2012 agreement to be valid and enforceable. Accordingly, we conclude the award of

attorney’s fees was equitable and just. See id.

B.     Segregating Fees

       “[A] claimant must segregate legal fees accrued for those claims for which attorney’s fees

are recoverable from those that are not.” Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017)

(citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006)). “[T]he need to

segregate fees is a question of law.” Tony Gullo Motors I, 212 S.W.3d at 312. However, “when

discrete legal services advance both a recoverable and unrecoverable claim [such] that they are so

intertwined [then] they need not be segregated.” Id. at 313–14.

       Here, all of Susan’s claims were based on the same facts regarding the 2012 agreement and

Mollie’s statements relating to that agreement, including her statements relating to the stock, the

wills, and the transfer on death accounts. Accordingly, we conclude segregation was not required.

       We overrule Mollie’s third issue.

                                           CONCLUSION

       Having concluded the evidence was legally and factually sufficient to support the jury’s

findings, and the probate court did not err in awarding attorney’s fees, we affirm the probate court’s

judgment.

                                                     Patricia O. Alvarez, Justice




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