      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-04-00318-CV



                                         Ben Florey, Appellant

                                                    v.

                                Estate of Linda McConnell, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 03-099-C368, HONORABLE BURT CARNES, JUDGE PRESIDING



                                             OPINION


                 In this appeal, we must decide the validity of a real property lien, an inquiry that turns

on a dispute regarding the property’s homestead status. Ben Florey represented Richard E.

McConnell (McConnell) in connection with charges for murdering his wife, Linda McConnell.1 To

secure payment of legal fees, McConnell executed a promissory note payable to Florey, secured by

a deed of trust on real property owned jointly by McConnell and the Estate of Linda McConnell.

The Estate2 brought a wrongful death suit against McConnell and obtained a judgment. The Estate

sued Florey to invalidate his deed of trust on the property and collect some of its wrongful death



       1
            Richard McConnell ultimately pled guilty, was convicted, and received a forty-year
sentence.
       2
        The McConnell’s four minor children; the minors’ maternal grandparents and next friends,
James and Annie Caulkins; and the minors’ attorney ad litem, Patricia J. Cummings.
judgment from the proceeds of the property’s sale.3 After a bench trial, the district court declared

Florey’s lien invalid, specifically finding that the property was a homestead; the court also awarded

attorney’s fees to the Estate. Florey appeals, contending that his lien is valid because McConnell

abandoned the homestead. We will affirm the district court’s judgment.


                                         BACKGROUND

               The record shows that on October 9, 2000, McConnell murdered his wife, Linda

McConnell, who died intestate. McConnell retained Florey to defend him on the murder charge,

agreeing to pay him $75,000. McConnell paid $11,000 of that fee and executed a $75,0004

promissory note to Florey, secured by a deed of trust on real property owned jointly by McConnell

and Linda McConnell.5 Florey recorded the deed of trust. After it was recorded, the Estate obtained

a child support lien and a $1,000,000 wrongful death judgment against McConnell. The Estate

recorded its lien and judgment.

               Planning to collect its judgment from the sale of the McConnells’ property,6 the Estate

brought a declaratory judgment action to quiet title in the property by invalidating Florey’s deed of



       3
       The probate court ordered the sale of the property as part of the administration of Linda
McConnell’s estate.
       4
         Although McConnell’s note was for the full amount of the fee, Florey contends that
$65,000 plus interest remains due.
       5
         The real property is located at 9850 State Highway 29 in Liberty Hill, Texas 78642 and is
described as 9.94 acres of land out of the Noah Smithwick Survey, Abstract Number 590,
Williamson County, Texas.
       6
       The probate court ordered the sale of the property as part of the administration of Linda
McConnell’s estate.

                                                 2
trust. The property sold for $135,262.68. Half of the proceeds were paid to the Estate and the

remaining half were deposited into the registry of the court pending final determination of the

Estate’s suit to quiet title. After a bench trial, the district court invalidated Florey’s lien and awarded

the Estate its attorney’s fees.

                The court entered findings of fact and conclusions of law.7 Among its findings and

conclusions, it determined that:


        •   McConnell was convicted of murdering Linda McConnell;

        •   McConnell attempted to transfer the real property to Florey to secure payment of
            attorney’s fees;

        •   The property in question was classified as homestead property from 1998-2001;8
            and

        •   McConnell “repeatedly testified” that the property he intended to convey was his
            homestead.

        •   The property was the homestead of Richard McConnell, Linda McConnell, and
            the McConnell children when the deed of trust was executed and when it was
            recorded;

        •   McConnell did not abandon the homestead property before signing the note and
            deed of trust;

        •   The property was exempt from creditors’ claims, including Florey’s;

        •   There is not an exception to the homestead exemption permitting transfer of
            homestead property for attorney’s fees;

        7
          To the extent that any of the district court’s conclusions regarding homestead and
abandonment are properly findings of fact, we treat them as such. See Ray v. Farmers’ State Bank
of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).
        8
         McConnell and his wife filed for a homestead exemption in 1999 and their property was
designated as a homestead with the Williamson County Appraisal District from 1999-2001.

                                                    3
        •   The deed of trust transfer from McConnell to Florey was an invalid transfer of
            “homesteaded property”; and

        •   The deed of trust filed by Florey placing a lien on the homestead property is
            invalid and unenforceable.


                Florey brings eight issues on appeal challenging the district court’s (1) subject matter

jurisdiction; (2) finding that McConnell did not abandon the homestead property before signing the

note and deed of trust; (3) finding that the property was the McConnell family’s homestead when

McConnell executed the deed of trust and when it was recorded; (4) refusal to find that McConnell

owned one-half interest in the property as his separate property, (5) determination that the minors

had standing to assert a homestead right superior to McConnell’s; (6) conclusion that the deed of

trust to Florey was invalid; (7) denial of Florey’s counterclaims and requests for relief, and (8) award

of attorney’s fees to the Estate.


                                           DISCUSSION

Homestead interests and abandonment

                Because Florey’s issues center on the homestead status of the property, we begin by

briefly surveying the legal principles governing homestead interests. The homestead interest is a

legal interest created by the constitution that protects property from all but the few types of

constitutionally permitted liens that may be imposed against a homestead. See Heggen v. Pemelton,

836 S.W.2d 145, 148 (Tex. 1992); see Tex. Const. art. XVI, § 50. Homesteads are protected from

forced sale for the payment of debts, except for those debts specifically enumerated in the

constitution, including debts incurred for purchase money on the homestead, taxes thereon, work or



                                                   4
services performed thereon, certain extensions of credit, and certain reverse mortgages. Tex. Const.

art. XVI, § 50(a); see Tex. Prop. Code Ann. § 41.001(b) (West 2000 & Supp. 2005). Constitutional

homestead rights protect citizens from losing their homes; accordingly, statutes relating to homestead

rights are liberally construed to protect the homestead. Kendall Builders, Inc. v. Chesson, 149

S.W.3d 796, 807 (Tex. App.—Austin 2004, pet. denied). Homestead rights have historically enjoyed

great protection in our jurisprudence. See id. (citing Mills v. Von Boskirk, 32 Tex. 360, 362 (1869)).

               Property that has been designated as a homestead will only lose that character through

abandonment, death, or alienation. Majeski v. Estate of Majeski, 163 S.W.3d 102, 107 (Tex.

App.—Austin 2005, no pet.). Evidence establishing the abandonment of a homestead “must be

undeniably clear” and must show “beyond almost the shadow, at least (of) all reasonable ground of

dispute, that there has been a total abandonment with an intention not to return and claim the

exemption.” Burkhardt v. Lieberman, 159 S.W.2d 847, 852 (Tex. 1942); Estate of Montague v.

Nat’l Loan Investors, L.P., 70 S.W.3d 242, 248 (Tex. App.—San Antonio 2001, pet. denied). To

be an abandonment that would subject the homestead property to seizure and sale, there must be a

voluntary leaving or quitting of the residence. King v. Harter, 8 S.W. 308, 309 (1888); McWilliams

v. Adoue, 51 S.W.2d 1104, 1107 (Tex. Civ. App.—El Paso 1932, writ ref’d); Flynn v. Hancock, 80

S.W. 245, 246 (Tex. Civ. App.—San Antonio 1904, no writ). Whether one has abandoned a

homestead is generally a fact question. Scott v. Estate of Scott, 973 S.W.2d 694, 695, 696 (Tex.

App.—El Paso 1998, no pet.); Exocet, Inc. v. Cordes, 815 S.W.2d 350, 355 (Tex. App.—Austin

1991, no writ); see Chesson, 149 S.W.3d at 808. If a lien that is not constitutionally permitted is

placed on property that has not lost its homestead character, the lien on the property is void. “A



                                                  5
mortgage or lien that is void because it was illegally levied against homestead property can never

have any effect, even after the property is no longer impressed with the homestead character.” Laster

v. First Huntsville Props. Co., 826 S.W.2d 125, 130 (Tex. 1991); see Tex. Const. art. XVI, § 50(a);

Inge v. Cain, 65 Tex. 75, 79 (1885); Estate of Montague, 70 S.W.3d at 248.


Subject matter jurisdiction

               In his first and fifth issues, Florey contends that the district court lacked subject

matter jurisdiction over the suit because the Estate lacked standing to assert McConnell’s homestead

right. Standing is a prerequisite to subject matter jurisdiction. M.D. Anderson Cancer Ctr. v. Novak,

52 S.W.3d 704, 708 (Tex. 2001). Whether a court has subject matter jurisdiction is a question of

law that we review de novo. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226,

228 (Tex. 2004).

               Florey urges that the Estate lacks standing to assert McConnell’s homestead right,

which is personal, unassignable, and only available to McConnell, his successor in interest, or one

whose rights are affected by the owner or holder of that right. See Williamson v. Kelly, 444 S.W.2d

311, 314 (Tex. Civ. App.—Fort Worth 1969, writ ref’d n.r.e.); see also Hoffman v. Love, 494

S.W.2d 591, 593 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.). But a void instrument has no

effect, even as to persons not parties to it, and a contention that the deed of trust is void under

homestead law may be asserted by anyone whose rights are affected by the instrument. See

McGahey v. Ford, 563 S.W.2d 857, 861 (Tex. Civ. App.—Fort Worth 1969, writ ref’d n.r.e.) (citing

J. P. Wooten Motor Co. v. First Bank of Swenson, 281 S.W. 196, 197 (Tex. Comm’n App. 1926,

judgm’t adopted)). We conclude that the Estate had standing to contest the validity of Florey’s lien

                                                 6
based on McConnell’s homestead interest because the Estate’s rights were affected by McConnell’s

attempted transfer of the property to Florey. We overrule Florey’s first and fifth issues.


Validity of Florey’s lien

                In his second, third, and sixth issues, Florey attacks the sufficiency of the evidence

supporting the district court’s findings of fact and conclusions of law regarding the invalidity of

Florey’s lien. The district court’s findings of fact in a bench trial have the same force and dignity

as a jury’s verdict upon jury questions, Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991), and are similarly reviewed for legal and factual sufficiency of the evidence. Catalina v.

Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see also BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 794 (Tex. 2002).

                When reviewing the evidence for legal sufficiency, we consider the evidence in the

light most favorable to the challenged finding, crediting favorable evidence if a reasonable

fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City

of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). Evidence is legally insufficient if the record

reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the

opposite of the vital fact. Id. at 810. Evidence is legally sufficient if it would enable fair-minded

people to reach the verdict under review. Id. at 827.

                When reviewing the evidence for factual sufficiency, we must weigh all the evidence

in the record and overturn the findings only if they are so contrary to the overwhelming weight of



                                                   7
the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

We may not pass upon the witnesses’ credibility or substitute our judgment for that of the trier of

fact, even if the evidence would support a different result. Maritime Overseas Corp. v. Ellis, 971

S.W.2d 402, 407 (Tex. 1998).

               We review the district court’s legal conclusions de novo. BMC Software, 83 S.W.3d

at 794. The court’s conclusions will be upheld unless they are erroneous as a matter of law.

Chesson, 149 S.W.3d 796 at 802-03. Incorrect conclusions will not require reversal if controlling

findings of fact will support a correct legal theory. Id.

               Florey challenges the district court’s findings that the property was a homestead and

that McConnell did not abandon the homestead property, the basis for the district court’s conclusion

that his deed of trust was invalid and unenforceable. Generally, the burden of proof in an action to

assert homestead rights is on the party asserting those rights. Fajkus v. First Nat’l Bank, 735 S.W.2d

882, 885 (Tex. App.—Austin 1987, writ denied) (citing Burk Royalty Co. v. Riley, 475 S.W.2d 566,

568 (Tex. 1972)). Whether property is a homestead presents a fact-intensive inquiry that considers

the owner’s concurrent usage and intent to claim the property as a homestead. See Gregory v.

Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158-59 (Tex. App.—Dallas 1992, writ denied); see also

Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 515 (Tex. 1998). But the ultimate issue of

whether Florey had a valid lien on the property owned jointly by McConnell and the Estate of Linda

McConnell in light of the asserted homestead status is a question of law. Commonwealth Land Title

Co. v. Nelson, 889 S.W.2d 312, 321-22 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

               McConnell’s deed of trust to Florey states that “this deed of trust and the note are

given for the following purposes: Legal Services.” The deed of trust does not contain any disclaimer


                                                  8
of the homestead protection. Cf. Sanchez v. Telles, 960 S.W.2d 762, 771 (Tex. App.—El Paso 1997,

pet. denied) (homeowner’s disclaimer in deed of trust stated, “This is not my homestead.”). A lien

to secure the payment of attorney’s fees is not among the permissible homestead exceptions in the

Texas Constitution. Tex. Const. art. XVI, § 50(a); see also Tex. Prop. Code Ann. § 41.001(b) (West

2000 & Supp. 2005) (identifying encumbrances that may be properly fixed on homestead property).

Because Florey’s lien is not permitted by any exception to the constitutional protection of homestead

property, we must determine whether McConnell abandoned the homestead property.

               Relying on Sanchez v. Telles, Florey asserts that McConnell abandoned his homestead

property because he was not occupying it and did not have any intention to return. See 960 S.W.2d

at 770 (“To establish homestead rights, the claimant must show a combination of both overt acts of

homestead usage and the intention on the part of the owner to claim the land as a homestead.”). In

Telles, a homeowner guaranteed her son-in-law’s court appearance by signing a deed of trust

securing a note to Telles, a bail bondsman. Id. at 764. After the son-in-law failed to appear, the

property was sold to Sanchez, a third party who argued that he was a bona fide purchaser. Id. at 766.

Sanchez argued that Telles’s claim was void because of the homestead nature of the property. Id.

at 768. Affirming a summary judgment in favor of the bail bondsman, the court held that there were

no genuine issues of material fact that the property was homestead. See id. at 771. Telles is factually

distinct from this case because the homeowner there did not claim the property as her homestead or

file any homestead designation concerning the property in question. Id. at 764-65. Further, none

of the evidence in the Telles record contradicted her prior sworn and unequivocal disclaimer in the

deed of trust stating, “This is not my homestead.” Id. at 771.




                                                  9
                Unlike Telles, this record contains evidence that a reasonable fact-finder could credit

in support of the finding that the property was a homestead and that McConnell did not abandon his

homestead right in the property. McConnell and his wife designated the property as a homestead

with the Williamson County Appraisal District in 1999 and it retained that status until 2001. On

April 6, 2001, while the homestead designation remained in effect, McConnell signed the deed of

trust to Florey; the designation also was in effect on May 31, 2001, when Florey recorded the deed.

In his deposition, McConnell testified that the property was his homestead when he signed the deed

of trust and note. Although McConnell testified that he abandoned the property after committing

his crime and did not intend to return to it, he also testified that he and his minor children were living

on the property when the crime occurred, his personal possessions and those of his children remained

in the house, he did not have anywhere else to live, and he probably would have identified the

property as his home if he had to give a home address. During trial, when asked whether he might

have used “home” and “homestead” interchangeably in his depositions, McConnell clarified that the

property was a homestead:


        [t]hat was my house. It was a homestead. Once you put the homestead on it for tax
        purposes, it stays a homestead, as far as I know, until you sell it or go to the tax office
        and change it. That was the home that I was living in. For tax purposes, it was a
        homestead.


The record shows that the evidence of the homestead’s abandonment is not “undeniably clear.” See

Burkhardt, 159 S.W.2d at 852.

                As in any other case involving a homestead claim, Florey had the burden of proving

abandonment with legally and factually sufficient evidence. See Cordes, 815 S.W.2d at 355. In


                                                    10
Cordes, a creditor presented a similar claim of homestead abandonment to this Court, seeking

judicial foreclosure of its judgment lien on the property of a person who had been incarcerated. Id.

at 351. This Court noted that it would not set aside the jury’s refusal to find abandonment unless the

record showed that the jury’s findings were factually insufficient. See id. at 355. Because there was

sufficient evidence to support the jury’s findings that the property at issue was homestead and was

not abandoned—even though Cordes did not occupy the property during his prison sentence—we

affirmed the court’s judgment. Id. Here, as in Cordes, the findings that the property was a

homestead and that it was not abandoned were supported by sufficient evidence. Accordingly,

Florey’s second and third issues are overruled. Also, because the evidence supports the district

court’s finding that the homestead was not abandoned, the court’s conclusion that Florey’s lien on

the homestead property was invalid and unenforceable was not erroneous as a matter of law. We

thus overrule Florey’s sixth issue.

               Because we agree with the district court’s conclusion that Florey’s lien for attorney’s

fees on the homestead property was invalid and unenforceable, Florey’s seventh issue, complaining

about the denial of his counterclaims and requests for relief, is overruled. Additionally, because

Florey’s deed of trust encompassed the entirety of the McConnells’ real property—all of which is

homestead and exempt from the lien for legal fees—we also overrule Florey’s fourth issue

concerning characterization of half of the real property as McConnell’s separate property.


Attorney’s fee award

               In his eighth issue, Florey contends that the district court abused its discretion in

awarding attorney’s fees to the Estate. Under the Uniform Declaratory Judgments Act, the court

                                                 11
“may award . . . reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac.

& Rem. Code Ann. § 37.009 (West 1997). The court’s decision to award attorney’s fees under the

UDJA is reviewed on appeal for an abuse of discretion. Ridge Oil Co. v. Guinn Invs., Inc., 148

S.W.3d 143, 163 (Tex. 2005) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). We

employ a hybrid analysis in which the “reasonable and necessary” requirements are questions of fact

determined by the fact-finder but the “equitable and just” requirements are questions of law for the

court. Id. at 161. The party seeking to recover attorney’s fees bears the burden of proof. Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).

               The Estate’s pleadings recite that it filed suit under the UDJA “for declaration of the

invalidity of a certain document and claim made by Defendant Ben Florey, to an interest in the

hereinafter described real property, in order to quiet title to property in which Plaintiffs have an

interest.” The Estate’s claim, which sought to resolve a dispute over the validity of Florey’s deed

of trust on the McConnells’ property, is authorized by the terms of the UDJA:


       A person interested under a deed, will, written contract, or other writings constituting
       a contract or whose rights, status, or other legal relations are affected by a statute,
       municipal ordinance, contract, or franchise may have determined any question of
       construction or validity arising under the instrument, statute, ordinance, contract, or
       franchise and obtain a declaration of rights, status, or other legal relations thereunder.


Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1997).

               Florey contends, however, that the Estate nonetheless cannot properly bring its quiet

title claim under the UDJA. He contends that (1) attorney’s fees are not available in suits to quiet

title; and (2) the Estate cannot use the declaratory judgments act as a vehicle to recover attorney’s



                                                  12
fees. See Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied); see also Strayhorn v. Raytheon E-Sys., Inc., 101

S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied).

               Florey is correct that attorney’s fees are not recoverable in a suit to quiet title, as that

action is traditionally known. A suit to quiet title is equitable in nature and the principal issue in

such suits is “the existence of a cloud on the title that equity will remove.” Bell v. Ott, 606 S.W.2d

942, 952 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.). The suit to quiet title “enable[s] the holder

of the feeblest equity to remove from his way to legal title any unlawful hindrance having the

appearance of better right.” Id. (quoting Thomson v. Locke, 1 S.W. 112, 115 (Tex. 1886)).

Attorney’s fees are not recoverable in such actions. Sadler v. Duvall, 815 S.W.2d 285, 293-94 (Tex.

App.—Texarkana 1991, writ denied) (in suits to quiet title, attorney’s fees not recoverable either

under chapter 38, civil practice and remedies code, or as component of actual damages).

               The lack of availability of attorney’s fees under this common law or equitable claim,

of course, does not alone foreclose use of the UDJA to obtain a declaration concerning the lien that

will have the effect of quieting title. Cf. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 641 (Tex.

2004) (declaratory judgment to determine homeowners’ policy coverage); San Antonio Area Found.

v. Lang, 35 S.W.3d 636, 637 (Tex. 2000) (declaratory judgment for construction of will); Plainsman

Trading Co. v. Crews, 898 S.W.2d 786, 788 (Tex. 1995) (declaratory judgment to determine parties’

interests in uranium). But some doubts about the use of the UDJA in suits to quiet title have been

raised by Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). In Martin, the supreme court held

that a suit over a boundary dispute could not be brought under the UDJA because it was in substance



                                                   13
a trespass-to-try title action. The rationale of Martin rested upon the exclusive nature of the statutory

trespass-to-try title action, which the legislature specified as “the method of determining title to

lands, tenements or other real property,” and the fact that the legislature did not provide for

attorney’s fees in such actions. Tex. Prop. Code Ann. § 22.001(a) (emphasis added); see Martin, 133

S.W.3d at 267.

                 In Martin’s aftermath, several of our sister courts have held that attorney’s fees under

the UDJA are unavailable in suits to quiet title, at least where such suits are deemed equivalent with

trespass-to-title actions. See, e.g., Sani v. Powell, 153 S.W.3d 736, 746 (Tex. App.—Dallas 2005,

pet. denied) (denying recovery of attorney’s fees when essence of suit is in trespass to try title); Hawk

v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex. App.—Eastland 2003, pet. denied) (“Any suit that

involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its

form.”); Southwest Guar. Trust Co., 981 S.W.2d at 957. Other courts have permitted attorney’s fees

recoveries under the UDJA in such instances; however, most of these decisions do not squarely

address the contention raised by Florey here, whether such an award is actually available. See, e.g.,

Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-34 (Tex. App.—Fort Worth

1998, pet. denied) (termination of oil lease based on quiet title and slander of title claims brought

as declaratory judgment action); Industrial Structure & Fabrication v. Arrowhead Indus. Water, 888

S.W.2d 840, 844-45 (Tex. App.—Houston [1st Dist.] 1994, no writ) (declaratory action to remove

cloud on title resulting from invalid lien); First Nat’l Bank at Lubbock v. John E. Mitchell Co., 727

S.W.2d 360, 363 (Tex. App.—Amarillo 1987, writ ref’d n.r.e.) (declaratory action to remove cloud

on title resulting from abstracted judgment against homestead property); Anderson v. McRae, 495



                                                   14
S.W.2d 351, 356 (Tex. Civ. App.—Texarkana 1973, no writ) (declaratory action to quiet title and

declare rights involving easement).

                Assuming without deciding that the UDJA is unavailable in suits to quiet title that

are equivalent to trespass-to-try title actions, we conclude that this limitation does not apply here.

Florey has not contended that the Estate’s claim to quiet title is governed by the trespass-to-try title

statute, and we do not believe that it is. A trespass-to-try title suit seeks title and possession of real

property, and imposes unique and somewhat burdensome procedural requirements. See Martin, 133

S.W.3d at 265; El Paso v. Long, 209 S.W.2d 950, 954 (Tex. Civ. App.—El Paso 1947, writ ref’d

n.r.e.); cf. Roberson v. City of Austin, 157 S.W.3d 130, 136-37 (Tex. App.—Austin 2005, pet.

denied) (suits challenging validity of easement, a non-possessory interest in real property, do not fall

within trespass-to-try title statute and can be brought under UDJA); see also Tex. R. Civ. P. 783-809.

The Estate’s suit, by contrast, seeks adjudication of the validity of Florey’s deed of trust as it impacts

his entitlement to proceeds from the sale of the McConnell property. Although a declaration

regarding the validity of the deed of trust could ultimately have impacted title and possessory rights

to the property, we doubt that the legislature intended for the trespass-to-try title statute to displace

or subsume every statutory or common law claim (e.g., suits to rescind deeds) having such an

impact. See generally 17 William V. Dorsaneo, Texas Litigation Guide § 257.01[3][a], [4] (2005).

The Estate’s suit has a more indirect impact on title and possession to real property than the

boundary dispute in Martin, and we conclude that its rationale does not apply here.

                Finding no bar to the availability of attorney’s fees under the UDJA, we now address

Florey’s assertions that the district court’s award of attorney’s fees lacked a factual and evidentiary



                                                   15
basis. The district court’s findings include the amounts of the Estate’s counsel’s hourly rates and

total hours. The court further found that such fees were reasonable for the services rendered and

necessary to the prosecution of the case. The court found that the attorney’s fees in this case were

reasonable based on the time and labor required, the novelty and difficulty of the questions involved,

the skill required to perform the services properly, the fee customarily charged in Williamson County

for similar legal services, the amount involved, the results obtained, the experience, reputation, and

ability of the attorneys and the fixed nature of the fee for services rendered.

               The court’s findings are supported by the record, including testimony by counsel for

the Estate that he had been licensed to practice law since 1977, had practiced law in Williamson

County since 1987, was board certified in civil and criminal trial law, was familiar with the rates

normally charged for the type of work he performed, and had spent 151 hours working on the case

at a rate of $200 per hour. Counsel also testified that in his opinion a reasonable and necessary

attorney’s fee for representing the Estate in this case was $25,000. Florey did not offer any

controverting evidence. The evidence is sufficient to support a finding that the $25,000 attorney’s

fees award was reasonable, and we find nothing to indicate the fees were inequitable and unjust.

Courts may award an amount of attorney’s fees as a matter of law based on evidence that is not

contradicted by any other witness or attendant circumstances, is clear, direct, positive, and free from

contradiction, inaccuracies, and circumstances tending to cast suspicion on it. See Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). We conclude that the district court

did not abuse its discretion in awarding attorney’s fees to the Estate. We overrule Florey’s eighth

issue.



                                                  16
                                         CONCLUSION

               Having found that the district court had subject matter jurisdiction, that Florey’s lien

on the homestead property for attorney’s fees was invalid and unenforceable, and that the court did

not abuse its discretion in awarding attorney’s fees to the Estate, we affirm the district court’s

judgment.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices B.A. Smith, Puryear and Pemberton

Affirmed

Filed: June 9, 2006




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