                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00243-CV


PAMELA KAY CARPENTER AND                             APPELLANTS
JEFFREY SCOTT CARPENTER                            AND APPELLEES

                                    V.

ROBERT JOSEPH CARPENTER,                               APPELLEES
DAVID TRENT DEATON, JAMES                         AND APPELLANTS
EARL WARD, EDMOND WAYNE
CARPENTER, FRANKIE MARIE
CARPENTER PERRY, MICHAEL D.
HARRIS, EDMOND POWELL
CARPENTER, JO BETH ROSS,
LAVERNE WARD WILLMOND,
GARY DON CARPENTER, SAMMY
HARRIS, GARY DON MOSLEY,
AND DONALD HOWARD MALLORY

                                 ----------

         FROM PROBATE COURT NO. 1 OF TARRANT COUNTY

                                 ----------

                      MEMORANDUM OPINION1

                                 ----------



    1
     See Tex. R. App. P. 47.4.
      Pamela Kay Carpenter (Pam) and Jeffrey Scott Carpenter (Scott) appeal

the trial court‘s judgment ordering that they take nothing on their claim to a share

of the assets of an inter vivos trust. On cross-appeal, Robert Joseph Carpenter,

David Trent Deaton, James Earl Ward, Edmond Wayne Carpenter, Frankie Marie

Carpenter Perry, Michael D. Harris, Edmond Powell Carpenter, Jo Beth Ross,

Laverne Ward Willmond, Gary Don Carpenter, Sammy Harris, Gary Don Mosley,

and Donald Howard Mallory (collectively, Robert) appeal from the trial court‘s

judgment awarding Pam and Scott attorney‘s fees. Because we hold that the

trial court did not err by granting summary judgment for Robert and by denying

summary judgment for Pam and Scott, and because we hold that the trial court

did not abuse its discretion by awarding attorney‘s fees to Pam and Scott, we

affirm.

                                   Background

      On August 7, 1970, Maggie Spain executed a trust agreement which

created the Maggie Spain Trust No. One, an irrevocable inter vivos trust. The

net income from the trust was to be divided into two equal halves, one half

benefitting Jim McKinnon (Maggie‘s brother-in-law) and the other half benefitting

J.M. McKinnon (Maggie‘s nephew). Upon the death of the survivor of Jim and

J.M., the remaining corpus and any undistributed income were to be distributed

to seven beneficiaries who were named in the trust agreement. If any of these

seven beneficiaries had not survived the termination of the trust, then that

person‘s share would vest in that person‘s descendants.           If the deceased


                                         2
beneficiary had no descendants, then that person‘s share would vest in the

remaining beneficiaries or their descendants.

      J.M., who had survived Jim, died on November 24, 2006, at which point

the trust terminated by its terms. At that time, only one of the seven named

beneficiaries (Appellee Jo Beth Ross) was still alive. Chase Bank, as substitute

trustee, was therefore required to determine the identity of any descendants of

the six deceased beneficiaries.

      On July 2, 2007, Chase Bank filed a declaratory judgment action against

Pam, Scott, Robert, and the unknown descendants of the deceased

beneficiaries. In its petition, Chase Bank stated that one of the seven named

beneficiaries, Jess Carpenter, was deceased, and that his son Charles Carpenter

was also deceased. Chase Bank stated that Charles had two step-children, Pam

and Scott, whom Charles sometimes referred to as his ―children,‖ although, to the

best of Chase Bank‘s knowledge, Charles had never formally adopted them.

Chase Bank sought a declaration regarding (1) the identities of the descendants

of the six deceased beneficiaries; (2) whether Pam and Scott are descendants of

Jess; and (3) the proper percentage share to be distributed to each beneficiary.

Pam and Scott filed an answer asserting that they were entitled to be designated

as Jess‘s descendants because Charles had adopted them ―by estoppel and

equitable estoppel.‖

      Chase Bank filed a motion for summary judgment in which it identified

certain individuals as ―undisputed beneficiaries‖ of the trust, including Robert. In


                                         3
its motion, Chase Bank identified Pam and Scott as ―disputed beneficiaries‖ and

asserted that Charles had died in 1983, that Charles had no natural children, and

that Charles had never formally adopted Pam or Scott but had sometimes

referred to them as his children, including in his will. Chase Bank asked the trial

court to make a declaration as to whether or not Pam and Scott were Jess‘s

descendants. Robert filed a cross-action for a declaratory judgment that Pam

and Scott were not descendants of Jess and therefore were not entitled to any

trust assets.

      The trial court granted partial summary judgment for Chase Bank,

declaring the identities and percentage shares as to the undisputed beneficiaries.

This order left open the determination of whether Pam and Scott were

descendants of Jess and made no determination as to who was entitled to

receive his share of the trust assets.

      Robert filed an amended cross-action and a traditional motion for summary

judgment, asserting that the doctrine of adoption by estoppel did not apply; that,

because Charles had died in 1983, the statute of limitations barred Pam and

Scott‘s claim; and that Pam and Scott could not prove adoption by estoppel

because their mother had refused to consent to any such adoption.

      Pam and Scott filed an answer to Robert‘s cross-action, asserting the

discovery rule. They claimed that the facts and allegations giving rise to their

assertion of their rights as Charles‘s equitably adopted children were not known




                                         4
and could not have been known to them prior to Chase Bank‘s initiation of the

lawsuit.

      Additionally, Pam and Scott filed a no-evidence motion for summary

judgment, asserting that Robert had no evidence that their claim was barred by

the statute of limitations. They also filed a traditional summary judgment motion,

asserting that they were equitably adopted by Charles and were therefore Jess‘s

descendants and entitled to his share of the trust assets.

      After a hearing, the trial court denied the motions for summary judgment.

But the trial court later sent a letter to the parties stating that the court had

reconsidered and was granting Robert‘s motion for summary judgment. The trial

court then held a bench trial on the question of attorney‘s fees. Pam and Scott‘s

attorney testified that his reasonable and necessary fees were $69,775 and that

he had incurred expenses of $3,536. He testified that if the case were appealed,

$15,000 would be a reasonable and necessary fee for the appeal, plus another

$15,000 if the case were appealed to the Texas Supreme Court.

      The trial court signed a partial summary judgment for Robert, stating that

the court ―finds that the doctrine of adoption by estoppel is unavailable to [Pam

and Scott] to establish that they are entitled to take as ‗descendants‘ of Charles.‖

The trial court therefore ordered that Pam and Scott were not descendants of

Jess for purposes of the trust. A few weeks later, the trial court entered a final

judgment finding that Pam and Scott had been properly joined in the declaratory

judgment action by the trustee and that an award of attorney‘s fees to them was


                                         5
equitable and just. The trial court awarded Pam and Scott $69,775 in attorney‘s

fees, $697.15 in deposition costs, and $7 in court costs.      Pam and Scott

appealed, and Robert filed a cross-appeal.

                              Pam and Scott’s Appeal

        In their first issue, Pam and Scott argue that the trial court erred by

granting Robert‘s motion for summary judgment.      In their second issue, they

argue that the trial court erred by denying their motion for summary judgment

because they proved adoption by estoppel and because the statute of limitations

did not bar their claim.

        In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law.2       We review a summary judgment de novo, taking as true all evidence

favorable to the nonmovant and indulging every reasonable inference and

resolving any doubts in the nonmovant‘s favor.3     We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could and disregarding evidence



        2
       Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
        3
       Mann Frankfort, 289 S.W.3d at 848; 20801, Inc. v. Parker, 249 S.W.3d
392, 399 (Tex. 2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002).


                                        6
contrary to the nonmovant unless reasonable jurors could not. 4            We must

consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented.5 When both parties move

for summary judgment and the trial court grants one motion and denies the other,

the reviewing court should review both parties‘ summary judgment evidence and

determine all questions presented.6       The reviewing court should render the

judgment that the trial court should have rendered.7

      To determine whether Pam and Scott are entitled to a share of the trust

assets, we must look to the trust instrument itself and the law in effect at the time

the trust became effective.8 We construe a trust instrument in the same manner

as a contract.9 We construe the trust to ascertain the intent of the maker, as


      4
       Mann Frankfort, 289 S.W.3d at 848.
      5
        See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006);
City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
      6
       Mann Frankfort, 289 S.W.3d at 848.
      7
       Id.
      8
        See Cutrer v. Cutrer, 162 Tex. 166, 174, 345 S.W.2d 513, 519 (1961)
(interpreting the trust instrument to determine the intent of the settlor at the time
that the trust was created); Nail v. Thompson, 806 S.W.2d 599, 600 (Tex. App.—
Fort Worth 1991, no writ) (stating that to determine who should take under a
testamentary trust, a court looks to the state of the law at the time the settlor died
in conjunction with the language of the trust instrument).
      9
        See Mabrey v. SandStream, Inc., 124 S.W.3d 302, 314 (Tex. App.—Fort
Worth 2003, no pet.) (―In interpreting contract language, we ascertain the true
intentions of the parties as expressed in the entire contract in an effort to
harmonize and give effect to all provisions so that none will be rendered

                                          7
determined from the language used within the four corners of the instrument. 10

We must harmonize all of the instrument‘s terms to properly give effect to all

parts so that none are rendered meaningless.11

      The trust stated that upon dissolution, its assets would be distributed to the

seven beneficiaries named in the trust, or, if any of those people were deceased,

―the descendants of such deceased [beneficiaries], per stirpes.‖ The question

here is what the term ―descendants‖ means.12 The term ―descendant‖ means

―‗one who follows in lineage, in direct (not collateral) descent from a person.‘‖13

The term includes children and grandchildren.14 Thus, if Pam and Scott are,

under the law, Jess‘s grandchildren, then they are his descendants, and under

the terms of the trust, they are entitled to Jess‘s share.




meaningless.‖); Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort Worth
2003, pet. denied) (applying the same rule to the interpretation of a trust
instrument).
      10
        See Mabrey, 124 S.W.3d at 314; Eckels, 111 S.W.3d at 694.
      11
        See Eckels, 111 S.W.3d at 694.
      12
         Reilly v. Huff, 335 S.W.2d 275, 279 (Tex. Civ. App.—San Antonio 1960,
no writ).
      13
        In re Ray Ellison Grandchildren Trust, 261 S.W.3d 111, 120 (Tex. App.—
San Antonio 2008, pet. denied) (quoting Black‘s Law Dictionary 476 (8th ed.
2004)).
      14
        Id.


                                          8
      No one contends that Pam and Scott were legally adopted. But Pam and

Scott contend that they are Jess‘s grandchildren by application of the doctrine of

equitable adoption, also known as adoption by estoppel.

      The Supreme Court of Texas first began applying what became known as

equitable adoption when it held that if the parties in good faith executed and

acknowledged an instrument of adoption but failed to record the instrument, and

the parties to the adoption ―lived in a relationship wholly consistent with that of

parent and child,‖ then ―those claiming under the adoptive parents were estopped

to deny the validity of the instrument of adoption and its recordation.‖15 The court

also applied the doctrine in cases when no instrument of adoption had been

executed but the adoptive parent had received from the child the benefits of the

adoption and the child had provided those benefits under the belief that the child

had been adopted.16 Historically, a person who had been adopted in accordance

with the statutory requirements could inherit from an adoptive parent, but that

person could not inherit through an adoptive parent.17 Thus, under the prior law,

neither a person whose adoption was upheld on estoppel grounds nor a person




      15
        Cavanaugh v. Davis, 149 Tex. 573, 576, 235 S.W.2d 972, 973–74
(1951); see also Cubley v. Barbee, 123 Tex. 411, 432, 73 S.W.2d 72, 83 (1934).
      16
        Jones v. Guy, 135 Tex. 398, 402, 143 S.W.2d 906, 908 (1940).
      17
        In re Ray Ellison Grandchildren Trust, 261 S.W.3d at 122.


                                         9
adopted through the statutory adoption procedure could inherit from a stranger to

the adoption (that is, someone other than his or her adoptive parents).18

       When the trust in this case became effective, however, the legislature had

changed the law so that legally adopted children stand in the same position as

biological children.19 Accordingly, legally adopted children can inherit through

their adoptive parents.20 Thus, if Pam and Scott had been adopted under the

statutory procedures, at the time the trust became effective, they would have

been included within the word ―descendants.‖21

       The Texas Supreme Court has consistently declined, however, to give

equitable adoption the same status as legal adoption. That court has expressly

held that equitable adoption does not have all of the same legal consequences of

a statutory adoption and, importantly for this case, does not create a legal status

of parent and child.22 And the court expressly rejected the argument that under




       18
        See id.
       19
        Id. at 123.
       20
        Id.
       21
        See Cutrer, 162 Tex. at 174, 345 S.W.2d at 519; Nail, 806 S.W.2d at
600.
       22
       Moran v. Adler, 570 S.W.2d 883, 888 (Tex. 1978); Heien v. Crabtree, 369
S.W.2d 28, 29–30 (Tex. 1963); Asbeck v. Asbeck, 369 S.W.2d 915, 916 (Tex.
1963).


                                        10
section 3(b) and section 40 of the probate code23 (the sections of the probate

code on which Pam and Scott rely), an equitably adopted child has all of the

same rights under the laws of descent and distribution as would a biological

child.24 The court noted that the language of section 3(b) ―indicates a legislative

assumption that our courts had held that a child may be adopted by acts of

estoppel, and thus that a legal status of parent and child is created by acts of

estoppel. Not so.‖25 The court held that notwithstanding the language of those

sections of the probate code, under the law, a person cannot be adopted by

estoppel, and estoppel cannot create the legal status of parent and child.26

      Pam and Scott attempt to distinguish Heien and Asbeck on the facts, but

although those cases did not address the exact factual situation at issue in this

case, the Texas Supreme Court‘s statement of the law in those cases does

apply,27 and the legislature has not amended the statutory language since that

      23
        Tex. Prob. Code Ann. § 3(b) (defining ―child‖ to include a child adopted
―by acts of estoppel‖), § 40 (allowing for inheritance through an adoptive parent)
(West 2003).
      24
        Asbeck, 369 S.W.2d at 916.
      25
        Heien, 369 S.W.2d at 29–30.
      26
        Id.
      27
         See Lubbock Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d
580, 585 (Tex. 2002) (stating that once the Supreme Court announces a
proposition of law, the decision becomes binding precedent, and ―it is not the
function of a court of appeals to abrogate or modify established precedent‖);
Curry v. Williman, 834 S.W.2d 443, 445 (Tex. App.—Dallas 1992, writ denied)
(noting that the legislature had not amended the statutory language since Heien).


                                        11
court‘s decision in Heien and Asbeck. We are bound to follow the law as set out

by that court.28 If equitable adoption does not create the legal status of parent

and child, then even if Charles (and those claiming through him) would have

been estopped from denying that he had adopted Pam and Scott, this does not

cause Pam and Scott to be Charles‘s children under the law. We conclude

therefore that, as a matter of law, the term ―descendant‖ does not include

equitably adopted children and that Maggie did not intend to include equitably

adopted children.29     Consequently, we do not address Pam and Scott‘s

arguments with respect to the statute of limitations.     We overrule Pam and

Scott‘s first and second issues.

      In their third issue, Pam and Scott argue that the trial court erred by

reducing the award of costs to them and by refusing to award uncontroverted

attorney‘s fees for appeals of this case. We disagree.

      Chase Bank sued Pam and Scott under the trust code and under the

Declaratory Judgment Act. For actions brought under either of these statutory

provisions, the trial court has discretion to award or deny attorney‘s fees,

including the discretion to award fees to the prevailing or nonprevailing party. 30


      28
        Lubbock Cnty., 80 S.W.3d at 585.
      29
        See Cutrer, 162 Tex. at 174, 345 S.W.2d at 519 (determining the settlor‘s
intent at the time that the trust was created); In re Ray Ellison Grandchildren
Trust, 261 S.W.3d at 120 (considering the term ―descendents‖).
      30
      Tex. Prop. Code Ann. § 114.064 (West 2007); Tex. Civ. Prac. & Rem.
Code Ann. § 37.009 (West 2008); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.

                                        12
Under both statutory provisions, an award of fees must be reasonable and

necessary, which are fact questions, as well as equitable and just, which are

questions of law left to the trial court‘s discretion.31

      Pam and Scott complain about the trial court‘s refusal to award them what

they contend were uncontroverted appellate fees and its decision to reduce their

―uncontroverted trial expenses.‖       But this court has held that with respect to

attorney‘s fees in declaratory judgment actions, the trial court has the discretion

to award less than the amount determined to be reasonable and necessary or to

not award any fees at all.32

      Furthermore, the case that Pam and Scott primarily rely upon, Ragsdale v.

Progressive Voters League,33 is distinguishable because the statute in that case

did not require the trial court to consider whether an award of fees and costs was

equitable and just. The statutes at issue here, however, expressly require the




1998); Smith v. Huston, 251 S.W.3d 808, 830 (Tex. App.—Fort Worth 2008, pet.
denied); Lesikar v. Moon, 237 S.W.3d 361, 375 (Tex. App.—Houston [14th Dist.]
2007, pet. denied).
      31
        Bocquet, 972 S.W.2d at 21; Lesikar, 237 S.W.3d at 375.
      32
       NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 468 (Tex.
App.—Fort Worth 2007, no pet.); see also Bocquet, 972 S.W.2d at 21 (noting
that a ―court may conclude that it is not equitable or just to award even
reasonable and necessary fees‖).
      33
        801 S.W.2d 880, 882 (Tex. 1990).


                                           13
trial court to make that consideration.34 In other words, in the case relied on by

Pam and Scott, whether the fees were reasonable and necessary was the only

relevant consideration, whereas in this case, the trial court had to consider

whether the fees were reasonable and necessary as well as whether an award of

fees was equitable and just. And the other cases relied upon by Pam and Scott

discussed the reasonableness of attorney‘s fees, a fact issue on which

uncontradicted evidence of such fees would have relevance. Those cases did

not hold that when evidence of fees is uncontroverted, the failure to award them

is, as a matter of law, not equitable and just.35

      Furthermore, Ragsdale and all of the other cases relied upon by Pam and

Scott discuss the reasonableness of an award of attorney‘s fees to the prevailing

party.36   Not one of the cases discusses whether the denial of an award of

attorney‘s fees to a nonprevailing party is not equitable and just merely because

the evidence of the fees is uncontroverted.         And although the trial court‘s

      34
      Compare Tex. Elec. Code Ann. § 253.131(e) (West 2003) with Tex. Prop.
Code Ann. § 114.064 and Tex. Civ. Prac. & Rem. Code Ann. § 37.009.
      35
       See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 548 (Tex. 2009);
Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning Contractors, Inc., 300
S.W.3d 738, 739 (Tex. 2009).
      36
        See Smith, 296 S.W.3d at 548; Midland W. Bldg., 300 S.W.3d at 739;
Innovative Mailing Solutions, Inc. v. Label Source, Inc., No. 02-09-00129-CV,
2010 WL 395219, at *5 (Tex. App.—Fort Worth Feb. 4, 2010, no pet.) (mem.
op.); AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 516 (Tex.
App.—Fort Worth 2009, no pet.); In re S.N.A., No. 02-07-00349-CV, 2008 WL
4938108, at *2 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.); Lee v.
Perez, 120 S.W.3d 463, 469 (Tex. App.—Houston [14th Dist.] 2003, no pet.).


                                          14
conclusion that an award was equitable and just was a prerequisite to Pam and

Scott‘s entitlement to an award of fees and costs, Pam and Scott make no

argument about why the denial in this case was not equitable or just.

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

the award of costs to them and by refusing to award uncontroverted attorney‘s

fees for appeals of this case. We overrule their third issue.

                             Robert’s Cross-Appeal

      In his brief, Robert does not separate his arguments by issue. Instead, he

makes arguments and then indicates parenthetically which issues each argument

supports. Accordingly, rather than addressing his issues in turn, we will address

his arguments one by one and then state our holding as to all of the issues at the

end of our analysis.

      All of Robert‘s arguments relate to two basic complaints: that the award of

attorney‘s fees was not equitable and just and that the evidence was insufficient

to support the award.

Sufficiency of the Evidence as to “Equitable and Just”

      Robert‘s first argument relates both to the sufficiency of the evidence and

to whether it was equitable and just. He argues that the trial court abused its

discretion by awarding attorney‘s fees to Pam and Scott because there was no

evidence that awarding such fees would be equitable or just.        He therefore

impliedly argues that whether an award is equitable and just is a fact question on

which Pam and Scott had the burden of proof.


                                        15
      But the question of whether an award of fees is equitable and just is not a

question of fact; it is a question of law, and a matter that is committed to the trial

court‘s sound discretion.37 Whether to award fees depends on the trial court‘s

conclusion about whether an award is equitable and just based on all the

circumstances of the case, not just on evidence presented by the party seeking

the award.38

      Pam and Scott did put on evidence regarding the reasonableness and

necessity of the fees, and the trial court was well aware of the circumstances of

the case, including the history of the proceedings in the case and the fact that

Pam and Scott asserted a claim to the trust assets only after being brought into

the suit by Chase Bank. Once they were brought into the suit, Pam and Scott

had the right to assert any claims or defenses that were not groundless and

brought in bad faith or for the purpose of harassment.39



      37
       See Bocquet, 972 S.W.2d at 21 (stating that on review, the court of
appeals must determine whether the trial court abused its discretion by awarding
fees when there was insufficient evidence that the fees were reasonable and
necessary or when the award was inequitable and just); Smith, 251 S.W.3d at
830.
      38
         See, e.g., In re Estate of Kuykendall, 206 S.W.3d 766, 772 (Tex. App.—
Texarkana 2006, no pet.) (―The trial court‘s decision whether to award attorney‘s
fees in a declaratory judgment case depends on the court‘s conclusion whether it
is just and equitable to do so under all the circumstances of the case, not on the
quantum of proof as to the amount incurred or the reasonableness and necessity
of such fees.‖).
      39
        See Tex. R. Civ. P. 13, 85, 97.


                                          16
      Robert contends that Pam and Scott‘s attorney admitted that ―this

particular issue is not one that we believe has much support or even discussion

in Texas case law.‖ But from the context of the attorney‘s statement (including

the remainder of that sentence—“so it is a novel situation which required

extensive research because of the facts necessary, in my opinion, to prove

adoption by estoppel, or equitable adoption‖—which Robert did not include in his

brief), it is clear that the attorney was saying that this area of law was not well-

developed and required him to conduct extensive research. Robert points to no

other evidence that Pam and Scott‘s claims were brought in bad faith or for

purposes of harassment. Thus, the trial court may have considered that Pam

and Scott pursued no claims against the trust until they were brought into the

case, that their claims were not asserted in bad faith or for purposes of

harassment, and that the law under these particular facts had not been

definitively established in this jurisdiction. And, despite Robert‘s assertion to the

contrary, after putting on evidence about the reasonableness and necessity of

attorney‘s fees, Pam and Scott were not required to put on separate, distinct

evidence on the question of law as to whether an award of fees was also

equitable and just. We therefore overrule Robert‘s argument that there was no

evidence that the award of such fees would be equitable and just and that the

trial court therefore abused its discretion by awarding such fees.




                                         17
Whether Guiding Principles Support The Award as Equitable and Just

      Robert further argues that no guiding principles support the trial court‘s

award of fees as just and equitable and that the award was arbitrary,

unreasonable, and an abuse of discretion. Robert asserts three subarguments.

First, he argues that the award of fees was not fair and right, and therefore was

not equitable and just, when the doctrine of equitable estoppel did not apply to

this case as a matter of law, Pam and Scott knew that their mother had refused

to let Charles adopt them, and their claim was barred by limitations.

      We disagree with Robert‘s contention that because under the law, Pam

and Scott‘s claim for equitable estoppel was ―insurmountably precluded,‖ an

award of attorney‘s fees to them could not be equitable and just. As stated, Pam

and Scott asserted a right to the trust assets only after they were brought into

court by Chase Bank. And we cannot say that the trial court abused its discretion

if it concluded that Pam and Scott did not pursue a claim while knowing that it

was ―insurmountably precluded‖ under the law when, as noted above, the law at

one time did treat legally adopted and equitably adopted children the same

regarding inheritance rights; the statutes governing inheritance of adopted

children, on their face, appear to support their claim; and neither the Texas

Supreme Court nor this court has directly addressed the question presented

here. We therefore reject Robert‘s argument that, on this ground, awarding Pam

and Scott their attorney‘s fees was not ―fair and right‖ and was therefore not

equitable and just.


                                        18
      Robert next argues that the award was not equitable and just because it

did not benefit the trust. In support of this argument, he states that section 799 of

the probate code allows a probate court to deny a claim against an estate if the

court is not convinced that the claim is just.40 He then points to a case in which

the Dallas Court of Appeals sustained an award of attorney‘s fees assessed

against an estate on the ground that it would be unjust for an estate to retain the

benefits of an attorney‘s services without paying for them when the evidence

proved that the services had been rendered under such circumstances as would

notify the estate‘s representative that the attorneys were expecting to be paid by

the representative.41

      Robert argues that here, unlike in Fortenberry, Pam and Scott‘s claim did

not benefit the trust. Thus, he appears to argue, because it is just to award

attorney‘s fees for a party whose claims benefit an estate, it is therefore unjust to

award attorney‘s fees against a trust to a party whose claims do not benefit the

trust. Neither section 799 nor Fortenberry supports this conclusion, and Robert

cites to no other authority in support of his argument.42          And, as Robert

      40
         See Tex. Prob. Code Ann. § 799(c) (West 2003) (―[I]f the court is not
satisfied that [a claim] is just, the court shall examine the claimant . . . and hear
other evidence necessary to determine the issue. If . . . the court is not
convinced that the claim is just, the court shall disapprove the claim.‖).
      41
      See In re Guardianship of Fortenberry, 261 S.W.3d 904, 914 (Tex.
App.—Dallas 2008, no pet.).
      42
      See Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise
arguments ―with appropriate citations to authorities‖).


                                         19
acknowledges in his brief, section 799 is not applicable to this case. Both section

799 and Fortenberry relate to authenticated claims against a guardianship estate

and not to an award of attorney‘s fees in an action involving a trust. Accordingly,

we reject this part of Robert‘s argument regarding whether the award was

equitable and just.

      Finally under this argument, Robert asserts that the award was not

equitable and just because Pam and Scott did not prevail on their claim of

equitable adoption. He points out that some courts have expressly held that it is

not equitable and just to award attorney‘s fees to a party who does not prevail

and that this court has routinely linked a party‘s right to recover attorney‘s fees in

a declaratory judgment action to whether the party prevailed.

      Robert is correct that some courts have reversed awards for attorney‘s

fees as not equitable and just upon reversing a declaratory judgment upon which

the attorney‘s fees had been premised.43 But this court has never set a bright

line rule that it is never equitable and just to award attorney‘s fees to a

nonprevailing party. Instead, this court has repeatedly noted that a trial court has

the discretion in a declaratory judgment proceeding to award fees to the

nonprevailing party.44 Whether the party prevailed in the action is a factor for the


      43
       See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 143 (Tex. App.—
Waco 2005, pet. denied); Treetop Apartments Gen. P'ship v. Oyster, 800 S.W.2d
628, 630 (Tex. App.—Austin 1990, no writ).
      44
       See City of Willow Park v. Bryant, 763 S.W.2d 506, 511 (Tex. App.—Fort
Worth 1988, no writ); see also Rhino Real Estate Invs., Inc. v. City of Runaway

                                         20
trial court to consider and, in some cases, may be the most important factor, but

it is not alone determinative.    Accordingly, we reject Robert‘s argument that

because Pam and Scott did not prevail, an award of attorney‘s fees to them was

necessarily not equitable and just. We hold that the ―guiding principles‖ relied on

by Robert in his argument that an award was not equitable or just do not

demonstrate that the trial court abused its discretion in making the award. To the

extent that Robert‘s four issues rely on these arguments, we overrule that part of

each issue.

Sufficiency of the Evidence

      Robert‘s third issue asserts that the trial court abused its discretion in

allowing counsel for Pam and Scott to testify about attorney‘s fees over an

objection by Robert based on the failure of Pam and Scott to produce their

attorney‘s fee agreement in response to requests for disclosure.             Robert

contends that because they failed to produce their fee agreement in response to

a request for disclosure under civil procedure rule 194.1, then under rule 215.2 45


Bay, No. 02-08-00340-CV, 2009 WL 2196131, at *4 (Tex. App.—Fort Worth July
23, 2009, no pet.) (mem. op.); Baker Boulevard Partners, Ltd. v. Sparks, No. 02-
06-00302-CV, 2007 WL 2460362, at *1 n.4 (Tex. App.—Fort Worth Aug. 29,
2007, no pet.) (mem. op.); Noe v. McLendon, No. 02-06-00062-CV, 2007 WL
2067844, at *3 (Tex. App.—Fort Worth July 19, 2007, no pet.) (mem. op.).
      45
         We assume Robert intended to cite rule 193.6(a). Rule 193.6(a)
provides that a party who fails to make a discovery response in a timely manner
may not introduce evidence on the information that was not disclosed unless the
trial court finds that there was good cause for the failure to disclose and the other
parties will not be unfairly surprised or prejudiced by the disclosure. Tex. R. Civ.
P. 193.6(a). Rule 215.2 relates to discovery sanctions and merely gives a trial

                                         21
and this court‘s opinion in Texas Municipal League Intergovernmental Risk Pool

v. Burns,46 Pam and Scott were required to put on evidence that there was good

cause for their failure to timely disclose the fee agreement and that the failure to

disclose it would not unfairly surprise or prejudice Robert. Robert argues that

because Pam and Scott put on no such evidence, the trial court should have

refused to allow Pam and Scott to put on testimony about their attorney‘s fees.

      Robert does not point this court to any place in the record showing that he

tendered to Pam and Scott a request for the production of the fee agreement with

their attorney.47 Pam and Scott point out that Robert did request the disclosure

of information, in accordance with rule 192.3(e),48 relating to any testifying

experts, including the expert‘s name and contact information, subject matter on

which the expert will testify, the general substance of the expert‘s mental

impressions and opinions, and ―[a]ll documents, tangible things, reports, models,

or data compilations that have been provided to, reviewed by, or prepared by or



court discretion to prohibit a party from introducing a matter into evidence when
the party failed to comply with discovery requests. Rule 193.6(a)‘s exclusion of
evidence, on the other hand, is mandatory. See Am. Flood Research, Inc. v.
Jones, 192 S.W.3d 581, 584 (Tex. 2006); Alvarado v. Farah Mfg. Co., 830
S.W.2d 911, 914 (Tex. 1992).
      46
        See 209 S.W.3d 806, 817 (Tex. App.—Fort Worth 2006, no pet.).
      47
        See Tex. R. Civ. P. 192.1(b) (providing that a party may request the
production and inspection of documents and tangible things).
      48
        See Tex. R. Civ. P. 192.3(e) (listing the information that is discoverable
with respect to a testifying expert).


                                        22
for the expert in anticipation of the expert’s testimony.‖ [Emphasis added.] And

Pam and Scott provided this information with respect to their attorney. They

disclosed the identity and contact information of their attorney, the fact that he

would testify regarding attorney‘s fees, and that he was ―expected to testify that

the attorneys‘ fees sought by [Pam and Scott] through trial . . . are reasonable

and necessary‖ and that ―[t]hose fees are expected to be at least $60,000

through trial.‖ The only request for the production of any documents under this

request for disclosure were for those documents that were provided to, reviewed

by, or prepared in anticipation of the expert‘s testimony. Robert does not argue

that the fee agreement between Pam and Scott and their attorney was prepared,

reviewed, or provided to the attorney in anticipation of the attorney‘s testimony.

Because Robert did not request the production of the fee agreement, Pam and

Scott were not required to produce it. Accordingly, they were not required to

show good cause for or the lack of surprise or prejudice resulting from the failure

to produce it.

      The cases cited by Robert are distinguishable. In Texas Municipal League

Intergovernmental Risk Pool, the appellants had made requests for disclosure

and for production of documents, and it was undisputed that they had requested

the case notes of appellee‘s attorneys and the billing records regarding their

fees.49 Similarly, Comerica Bank-Texas v. Hamilton is distinguishable in that it


      49
        209 S.W.3d at 816.


                                        23
was decided under former rule of procedure 215(5), and, in that case, Hamilton

had sought discovery of ―[a]ll reports of experts, and all documents that have

been reviewed and/or relied upon by any of [the Bank‘s] experts,‖ as well as ―[a]ll

documents evidencing or relating to [the Bank‘s] claims for attorney‘s fees . . . ,

including the attorney‘s fees statements and/or billings for which [the Bank] will

seek recovery of herein.‖50 In this case, Robert has not pointed out any evidence

in the record that he requested the production of Pam and Scott‘s agreement

with their attorney regarding fees. Thus, Pam and Scott could not be subject to

rule 193.6‘s mandatory penalty for failure to disclose the agreement and were not

required to establish the exception to the rule for good cause and a lack of

prejudice or surprise. We therefore hold that the trial court did not abuse its

discretion by allowing Pam and Scott‘s attorney to testify about his attorney‘s

fees.

        Robert‘s argument that there was no evidence to show that the award was

reasonable or necessary was premised on his argument that the trial court

should have excluded the testimony of Pam and Scott‘s attorney for failing to

disclose the fee agreement. He makes no other argument about the sufficiency

of the evidence regarding the reasonableness or necessity of the attorney‘s fees

and whether Pam and Scott‘s attorney should not have been allowed to testify.

Accordingly, we overrule Robert‘s third and fourth issues. Furthermore, because

        50
        No. 05-93-001804-CV, 1997 WL 421214, at *2 n.2 (Tex. App.—Dallas
July 28, 1997, no writ) (not designated for publication).


                                        24
we have overruled all of Robert‘s arguments about the sufficiency of the

evidence regarding whether the award was equitable and just, we overrule

Robert‘s first and second issues.

                                    Conclusion

      Having overruled Pam and Scott‘s three issues and Robert‘s four issues,

we affirm the trial court‘s judgment.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: October 27, 2011




                                        25
