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Affirmed, in Part, and Reversed and Remanded, in = Part, and=20 Opinion filed July 10, 2007.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-05-01246-CV

____________

 

WOODY K.=20 LESIKAR, Individually and as Trustee of the WOODROW V. LESIKAR = FAMILY=20 TRUST, Trustee of the WOODY K. LESIKAR SPECIAL TRUST, and as = Independent=20 Executor of the WOODROW V. LESIKAR ESTATE, = Appellant

 

V.

 

CAROLYN ANN=20 LESIKAR MOON, Individually and as Named Trustee of the CAROLYN ANN = LESIKAR=20 MOON SPECIAL TRUST, = Appellee

 

 

On Appeal from the = 149th District Court

Brazoria County, = Texas

Trial Court Cause = No. 25560

 

 

O P I N I=20 O N

Appellant,=20 Woody K. Lesikar, Individually and as Trustee of the Woodrow V. = Lesikar=20 Family Trust, Trustee of the Woody K. Lesikar Special Trust, and = as=20 Independent Executor of the Woodrow V. Lesikar Estate, appeals the = trial=20 court=3Ds final=20 judgment entered in favor of appellee, Carolyn Ann Lesikar Moon,=20 Individually and as Named Trustee of the Carolyn Ann Moon Lesikar = Special=20 Trust.  We affirm, in part, and reverse and remand, in = part. =20

           = ;            =             &= nbsp;           &n= bsp; =20 Background

Woody=20 Lesikar and Carolyn Ann Lesikar Moon are the son and daughter of = Woodrow=20 V. Lesikar.  In January 1990, Mr. Lesikar established the = Woodrow V.=20 Lesikar Family Trust (AFamily=20 Trust@), naming=20 himself and Woody as co-trustees.  In 1991, Mr. Lesikar = revoked, in=20 writing, part of the Family Trust.  On March 16, 1998, Mr. = Lesikar=20 amended the Family Trust, effective as of December 31, 1997.  = After=20 the distribution of other bequests, the Amended Family Trust = provided that=20 the remainder of the trust assets would be divided equally between = Woody=20 and Carolyn and placed into a special trust for each of = them.  Woody=20 would be the trustee of his special trust, while Carolyn would be = the=20 trustee of her special trust.  Mr. Lesikar died on January = 28, 2001,=20 thereby making the Amended Family Trust irrevocable and Woody the = sole=20 trustee of the Family Trust. 

On August=20 19, 2003, Carolyn filed a petition for construction of the trust,=20 declaratory judgment, accounting, imposition of a constructive = trust,=20 appointment of a receiver, and injunctive relief.  Carolyn = alleged=20 claims against Woody for breach of fiduciary duty, conversion, = negligence,=20 civil conspiracy, and tortious interference with = inheritance.  As=20 relevant to this appeal, Carolyn sought to compel Woody to fund = and=20 relinquish control of her special trust.  =

On July=20 22, 2004, Carolyn filed a motion for partial summary judgment = arguing she,=20 not Woody, is trustee of her special trust, as a matter of = law. =20 Carolyn further requested that the trial court order Woody to = partition=20 the then existing Family Trust assets, distribute her share of the = assets=20 to her special trust, and relinquish control of her special trust = to her=20 as trustee of her trust.  In his response to = Carolyn=3Ds motion=20 for partial summary judgment, Woody argued that because, in his = belief,=20 Carolyn is unable to manage her share of the Family Trust assets, = he, in=20 his unfettered discretion, could choose not to fund her special=20 trust.  Woody also filed a counter-motion for summary = judgment in=20 which he similarly argued he has unfettered discretion in = determining=20 whether to make distributions to Carolyn=3Ds special=20 trust.  On March 28, 2005, the trial court granted=20 Carolyn=3Ds motion=20 for summary judgment, finding, as a matter of law, Carolyn to be = the=20 trustee of her special trust, and denied Woody=3Ds=20 counter-motion for summary judgment on this issue.  =

On=20 November 8, 2004, the trial court, on its own motion, appointed a = special=20 master to examine the Family Trust=3Ds books=20 and records, devise a plan for the distribution of the Family = Trust=20 assets, and prepare a report to the court. 

On May 27,=20 2005, Woody filed a second supplemental answer, plea to the = jurisdiction,=20 special exceptions, and counterclaim, alleging that Carolyn, by = filing and=20 pursuing this action, contesting the terms of the trust = declaration=20 creating the Family Trust and the operations and distributions of = the=20 trust, has forfeited her interest in the trust under the in = terrorem=20 clause.  Woody also filed a motion for interlocutory = summary=20 judgment arguing that under the in terrorem clause, Carolyn = has=20 forfeited her share of the Family Trust by bringing this = lawsuit. =20 Carolyn filed a motion to strike Woody=3Ds second=20 supplemental answer and his motion for interlocutory summary=20 judgment.  The trial court did not rule on either = Woody=3Ds motion=20 for summary judgment or Carolyn=3Ds motion=20 to strike. 

On June 6,=20 2005, the trial court adopted, in part, the special = master=3Ds=20 report.[1] =20 The trial court did not adopt the report with respect to an issue=20 regarding a $200,000 contingent fee liability, reserving that = issue for=20 trial.  On June 10, 2005, the trial court conducted a bench = trial on=20 the $200,000 contingent fee liability issue and = Carolyn=3Ds attorney=20 fees. 

On=20 September 13, 2005, the trial court entered a final judgment = specifying=20 which Trust assets are to be distributed to Woody=3Ds and=20 Carolyn=3Ds special=20 trusts and those that are to remain in the Family Trust for = distribution=20 to other beneficiaries.  The final judgment also awards = Carolyn=20 $400,000 in attorney fees, after being adjusted to equalize the = division=20 of assets between Woody=3Ds and=20 Carolyn=3Ds special=20 trusts and the Family Trust, resulting in a net attorney fee award = of=20 $273,257.  The judgment also states Carolyn nonsuited her = other=20 causes of action still pending in the case without prejudice to=20 refiling. 

In this=20 appeal, Woody argues the trial court improperly interfered with = his=20 discretion as trustee, erred in finding Carolyn the trustee of her = special=20 trust, erred in rejecting his in terrorem defense, erred in = adopting the special master=3Ds report=20 and denying him a jury trial, and abused its discretion in = awarding=20 Carolyn $400,000 in attorney fees.

           = ;            =             &= nbsp;      =20 Trustee=3Ds=20 Discretion

In his=20 first issue, Woody claims the trial court interfered with his = discretion=20 as trustee by ordering him to fund Carolyn=3Ds special=20 trust, without a predicate finding of fraud, misconduct, or abuse = of=20 discretion.  Carolyn asserts, under the Amended Family Trust, = Woody=20 has no discretion not to fund her special trust. 

The court=20 may not substitute its discretion for that of the trustee, and may = interfere with the trustee=3Ds=20 discretionary powers only in the case of fraud, misconduct, or = clear abuse=20 of discretion.  Beaty v. Bales, 677 S.W.2d 750, 754 = (Tex.=20 App.CSan=20 Antonio 1984, writ ref=3Dd n.r.e.);=20 Coffee v. William Marsh Rice Univ., 408 S.W.2d 269, 284 = (Tex. Civ.=20 App.CHouston=20 1966, writ ref=3Dd n.r.e.);=20 see also Brown v. Scherck, 393 S.W.2d 172, 184 (Tex. Civ.=20 App.CCorpus=20 Christi 1965, no writ) (observing that appellants had not = undertaken to=20 allege or prove the trustees had abused their discretion or acted=20 dishonestly, in bad faith or arbitrarily, and a court will not = interfere=20 with trustees in the exercise of a discretionary power except = where proper=20 grounds are pleaded and proved).  Where the trust instrument = is=20 unambiguous and expresses the intentions of the settlor, the=20 trustee=3Ds powers=20 are conferred by the instrument and the neither the court nor the = trustee=20 can add or take away such power.  Beaty, 677 S.W.2d at = 754. 

The=20 Amended Family Trust gives the Trustee the discretion to allocate = and=20 apportion Trust assets in the distribution of the trust = estate. =20 However, Carolyn maintains, upon the death of Mr. Lesikar, the = Amended=20 Trust imposes a mandatory duty on the Trustee to divide the trust = assets=20 into two special trustsCone for=20 Carolyn and one for Woody.  Section 3.6 provides, with = respect to the=20 establishment of the special trusts:

All of the=20 remaining trust estate not used to establish the trusts described = in=20 Articles 3.1, 3.3, 3.4, and 3.5 above, shall be the = ACumulative=20 Total@ = and=20 shall be divided as follows:  The Trustee shall = divide=20 the Cumulative Total in half.  One-half (2)=20 shall be transferred into a separate trust for WOODY, if = living,=20 otherwise it shall be divided into equal parts for his then living = descendants, per stirpes.  One-half (2)=20 shall be transferred into a separate trust for CAROLYN, if = living,=20 otherwise it shall be divided into equal parts for her then living = descendants, per stirpes. . . . Each trust shall be called = by the=20 Beneficiary=3Ds name=20 with the phrase ASpecial=20 Trust@. =20 Each Beneficiary shall be the sole beneficiary of his or = her trust.=20 . . .[2]

The court=20 interprets trust instruments as it does contracts.  Goldin = v.=20 Bartholow, 166 F.3d 710, 715 (5th Cir. 1999).  The=20 court=3Ds primary=20 objective in construing a will or a trust is to determine the = intent of=20 the maker.  Hurley v. Moody Nat=3Dl Bank of=20 Galveston, 98=20 S.W.3d 307, 310 (Tex. App.CHouston=20 [1st Dist.] 2003, no pet.); Myrick v. Moody, 802 S.W.2d = 735, 738=20 (Tex. App.CHouston=20 [14th Dist.] 1990, writ denied).  To determine the = maker=3Ds intent,=20 we are limited to the four corners of the trust instrument. =20 Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.CFort Worth=20 2003, pet. denied); Myrick, 802 S.W.2d at 738.  The = court=20 should construe the trust to give effect to all provisions so that = no=20 provision is rendered meaningless.  Hurley, 98 S.W.3d = at 310;=20 Myrick, 802 S.W.2d at 738.  The construction of a will = or=20 trust instrument is a question of law for the court when there is = no=20 ambiguity.  Eckels, 111 S.W.3d at 694; Wright v.=20 Greenburg, 2 S.W.3d 666, 671 (Tex. App.CHouston=20 [14th Dist.] 1999, pet. denied).  The parties do not assert = on=20 appeal, and they did not assert in the trial court, any ambiguity = in the=20 Amended Trust. 

Common=20 words should be given their plain meaning unless the context = indicates the=20 words were used in another sense.  Patrick v. Patrick, = 182=20 S.W.3d 433, 436 (Tex. App.CAustin=20 2005, no pet.).  The word Ashall@ = as used=20 in contracts is generally mandatory, operating to impose a = duty. =20 Roberts v. Clark, 188 S.W.3d 204, 210 (Tex. = App.CTyler=20 2002, pet. denied) (citing Black=3Ds=20 Law Dictionary = 1379 (7th=20 ed. 1999)).  In common or ordinary parlance, Ashall@ = is a word=20 of Acommand,=20 and one which has always or must be given a compulsory meaning; as = denoting obligation.@ =20 Black=3Ds=20 Law Dictionary = 1375 (6th=20 ed. 1990).  It is Ainconsistent=20 with the concept of discretion.@ =20 Id. 

Of the=20 remaining assets in the Trust, the Amended Family Trust provided=20 A[o]ne-half=20 (2)=20 shall be transferred into a separate trust for CAROLYN, if = living,=20 . . .@[3] =20 Under the Trust, Woody had no discretion to do other than = fund the=20 special trusts.  Because Woody had no discretion not to fund=20 Carolyn=3Ds special=20 trust, it was not necessary for the trial court to make of finding = of=20 fraud, misconduct, or abuse of discretion.  Woody=3Ds first=20 issue is overruled. 

           = ;            =             &= nbsp;     =20 Ward Trust=20 Provision

In his=20 fourth issue, Woody asserts the trial court erred in granting = partial=20 summary judgment in favor of Carolyn, finding, as a matter of law, = that=20 she is the trustee of her special trust.[4] =20 To prevail on a motion for summary judgment, the movant must = establish=20 that no material fact issue exists and that she is entitled to = judgment as=20 a matter of law.  Browning v. Prostok, 165 S.W.3d 336, = 344=20 (Tex. 2005).  In conducting our review of the summary = judgment, we=20 take as true all evidence favorable to the nonmovant, and make all = reasonable inferences in the nonmovant=3Ds=20 favor.  Diversicare Gen. Partner, Inc. v. Rubio, 185 = S.W.3d=20 842, 846 (Tex. 2005). 

Woody=20 argues it was his obligation under the ward trust provision of the = Amended=20 Family Trust not to distribute the assets to Carolyn directly = because of a=20 history of instability in her personal life and her inability to = manage=20 her financial affairs.  The ward trust provision=20 states:

If any=20 share of any trust estate is otherwise provided to be distributed = to a=20 person who has not attained the age of eighteen (18) years or = who,=20 regardless of age, in the absolute and uncontrolled judgment of = the=20 Trustee, is insolvent, or incapacitated by reason or legal = incapacity=20 or physical or mental illness, or infirmity, o[r] unable to = manage=20 funds (such person is referred to as the AWARD@) the=20 Trustee is to hold such share in a separate trust fund for the = benefit of=20 such Ward.  When any such Ward attains the age of = eighteen (18)=20 years and when such Ward, in the absolute and uncontrolled = judgment of the=20 Trustee, becomes legally, financially, mentally, and physically = capable of=20 receiving and managing such share, all remaining income shall = terminate. .=20 . .[5]=20

Carolyn,=20 however, contends, once Mr. Lesikar died, Woody had no discretion = but to=20 recognize her as trustee of her special trust.  Section 8.2 = states,=20 in relevant part: 

Any=20 Beneficiary of a trust created by Article 3.6 for such Beneficiary = after=20 attaining age thirty (30), shall supersede any then acting = Trustee and=20 become sole Trustee of such trust.[6]

As=20 discussed above, the word Ashall@ = is=20 mandatory[7]=20 and is contrary with the idea of discretion.[8] =20 The Trustee=3Ds=20 determination of a beneficiary=3Ds ability=20 to manage funds is merely discretionary, while the Amended Family = Trust=20 leaves no discretion in Carolyn=3Ds being=20 the trustee of her own trust.  Allowing the discretionary = language of=20 the ward trust provision to trump the mandatory language naming = Carolyn=20 the trustee of her own trust would alter the plain language of the = Amended=20 Family Trust.  It was not error for the trial court to grant=20 Carolyn=3Ds motion=20 for partial summary judgment, finding her to be trustee of her = special=20 trust.  Woody=3Ds fourth=20 issue is overruled.

In=20 Terrorem clause

In his=20 second issue, Woody contends the trial court erred in awarding = relief to=20 Carolyn because her breach of fiduciary claim against him violates = the=20 in terrorem clause in the Amended Family Trust, resulting = in the=20 forfeiture of her interest in the Family Trust.  Woody raised = the=20 in terrorem defense in his motion for interlocutory summary = judgment, which Carolyn asserts was filed untimely.[9] =20

The agreed=20 docket control order set the cut-off date for hearing all = dispositive=20 motions on May 27, 2005.  The agreed docket control order = provided a=20 preferential trial setting of June 6, 2005.  Woody filed his = motion=20 for interlocutory summary judgment on May 27, 2005.  On June = 2, 2005,=20 Carolyn filed a motion to strike Woody=3Ds motion=20 for interlocutory summary judgment, asserting it was filed less = than 21=20 days before the preferential trial setting and, therefore, it was = not=20 possible to meet the 21 days=3D = notice=20 requirement for a hearing on the motion.  The trial court did = not=20 rule on either Woody=3Ds motion=20 for interlocutory summary judgment or Carolyn=3Ds motion=20 to strike. 

Rule=20 166a(c) provides, in relevant part:  AExcept on=20 leave of court, with notice to opposing counsel, the motion and = any=20 supporting affidavits shall be filed and served at least = twenty-one=20 days before the time specified for hearing.@ =20 Tex. R. Civ. P. = 166a(c)=20 (emphasis added).  Rule 166a=3Ds notice=20 requirements must be strictly construed.  Sams v. N.L. = Indus.,=20 Inc., 735 S.W.2d 486, 487 (Tex. App.CHouston=20 [1st Dist.] 1987, no writ).  The reference in Rule 166a(c) to = summary=20 judgment hearings in the context of timetables is to provide = sufficient=20 notice to the nonmovant to respond to the motion and allow = adequate time=20 for the response.  Martin v. Cohen, 804 S.W.2d 201, = 203 (Tex.=20 App.CHouston=20 [14th Dist.] 1991, no writ). 

Woody=3Ds motion=20 for interlocutory summary judgment was filed ten days before the=20 preferential trial setting.  Woody did not request leave to = file his=20 motion for summary judgment and there is nothing in the record to = show the=20 trial court granted Woody leave.  The trial court would not = have been=20 able to hold a hearing on Woody=3Ds=20 interlocutory motion for summary judgment because Rule 166a(c) = requires 21=20 days=3D = notice=20 for a hearing on a motion for summary judgment.  Moreover, = had the=20 trial court granted Woody leave to file his motion for = interlocutory=20 summary judgment so close to the date of the preferential trial = setting,=20 Carolyn would have been entitled to a period of time in which to = file a=20 response to Woody=3Ds=20 motion.  See Espeche v. Ritzell, 65 S.W.3d 226, 231 = n.7 (Tex.=20 App.CHouston=20 [14th Dist.] 2001), rev=3Dd on other=20 grounds, 87=20 S.W.3d 536 (Tex. 2002) (observing that had the trial court granted = husband=20 leave to file an amended motion for summary judgment so close to = the date=20 of the hearing, wife would have been entitled, pursuant to Rule = 166a(c),=20 to a period of time in which to file a response to new ground = presented in=20 the amended motion); Sams, 735 S.W.2d at 488 (holding = appellant was=20 deprived of notice and hearing requirements of Rule 166a(c) where = reply to=20 appellant=3Ds response=20 to motion for summary judgment raising additional grounds for = summary=20 judgment was filed after the trial court had heard the motion for = summary=20 judgment).  We conclude Woody=3Ds motion=20 for interlocutory summary judgment was not timely filed and the = trial=20 court properly did not consider it.[10] =20

Even if=20 Woody had timely filed his motion for interlocutory summary = judgment, we,=20 nonetheless, conclude the in terrorem clause does not apply = to=20 Carolyn=3Ds breach=20 of fiduciary duty claim against Woody related to the sale of = certain=20 stock, known as the AAirport=20 Stock,@ = from the=20 Family Trust to him prior to Mr. Lesikar=3Ds death.[11] =20 In terrorem clauses allow the intent of the testator to be = given=20 full effect and avoid vexatious litigation, often among members of = the=20 same family.  Gunter v. Pogue, 672 S.W.2d 840, = 842B43 (Tex.=20 App.CCorpus=20 Christi 1984, writ ref=3Dd n.r.e.);=20 see also Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex.=20 App.CFort Worth=20 2003, pet. denied) (stating the purpose of the in terrorem = clause=20 is to dissuade beneficiaries from challenging gifts made in the=20 will).  If the intention of a suit is to thwart the=20 settlor=3Ds=20 intention, the in terrorem clause should be enforced.  = Ferguson, 111 S.W.3d at 599.  A violation of the in = terrorem clause will be found only when the acts of the = parties=20 clearly fall within its express terms.  In re Estate of=20 Hamill, 866 S.W.2d 339, 342B43 (Tex.=20 App.CAmarillo=20 1993, no writ).  Thus, we narrowly construe in terrorem=20 clauses to avoid forfeiture while also fulfilling the=20 settlor=3Ds=20 intent.  McClendon v. McClendon, 862 S.W.2d 662, 678 = (Tex.=20 App.CDallas=20 1993, writ denied). 

Section=20 12.26, the in terrorem clause in the Amended Family Trust,=20 states:

It is the=20 Settlor=3Ds desire=20 that there shall be not [sic] controversy whatever among the = members of=20 his family, or any of them concerning this Trust Agreement or the=20 administration of the trusts created hereunder, and in order, if = possible,=20 to prevent such controversy, it is Settlor=3Ds will and=20 he hereby expressly provides and makes it a condition precedent to = the=20 taking, vesting, receiving or enjoying of any interest in any = property or=20 income under or by virtue of the trusts created hereunder that no = person=20 or party hereunder shall in any manner contest the trusts created = herein=20 or question or contest any provision or recital herein or the = operation=20 thereof or any distributions made by the Trustee or any actions = taken by=20 the Trustee.  Settlor hereby further directs and provides = that should=20 any person or party so contest or question, or bring suit, or in = any=20 manner whatever directly or indirectly aid in any such contest or=20 questioning, or suit, he or she shall thereupon lose and forfeit = all=20 benefits to him or her under the provisions hereof as if the = person so=20 contesting or questioning the trust created hereunder or aiding = therein=20 had died and such trust of which such person was a beneficiary = shall be=20 administered as if such person had died. 

Carolyn=3Ds claims=20 relate to her allegation that Woody breached his fiduciary = duty. =20 AThe right=20 to challenge a fiduciary=3Ds actions=20 is inherent in the fiduciary/beneficiary relationship.@ =20 McClendon, 862 S.W.2d at 678.  Woody argues this = clause is=20 broader than the in terrorem clause in McClendon = because it=20 prohibits challenges to any action by the trustee, including = whether the=20 trustee breached his fiduciary duty by engaging in self-dealing = and,=20 therefore, McClendon is inapplicable.[12] =20 We do not read McClendon in such a restrictive = manner. =20

Woody=20 further suggests the trial court=3Ds granting=20 of his motion for summary judgment on Carolyn=3Ds claim=20 for breach of fiduciary duty against him with regard to his = purchase of=20 the Airport Stock from the Family Trust demonstrates that she = wanted to=20 thwart Mr. Lesikar=3Ds=20 intention to sell the stock to Woody while he was still = alive.  The=20 issue here is whether Carolyn violated the in terrorem = clause by=20 raising a breach of fiduciary duty claim against Woody, not = whether she=20 prevailed or failed on the merits of that claim.  We conclude = Carolyn=3Ds bringing=20 a breach of fiduciary duty claim against Woody does not violate = the in=20 terrorem clause and, therefore, does not result in the = forfeiture of=20 her share of the Family Trust.  Woody=3Ds second=20 issue is overruled. =         =20

Special=20 Master=3Ds=20 Report

In his=20 third issue, Woody asserts the trial court improperly adopted the = special=20 master=3Ds report=20 over his objections and denied him a jury trial on the = merits.  On=20 November 8, 2004, the trial court, on its own motion, appointed a = special=20 master, after examining the books and records of the Family Trust = and=20 identifying and determining the value of trust assets, to = Adevise a=20 plan to fairly, equitably, and prudently divide the assets = currently held=20 by the Family Trust in accordance with the Amended Family Trust in = effect=20 at the time of Mr. Lesikar=3Ds=20 death.@  The=20 special master was further directed to prepare a report to the = trial=20 court, which would be provided to the parties at the = court=3Ds=20 election. 

Carolyn=20 argues Woody has waived any complaint with regard to the trial=20 court=3Ds adoption=20 of the special master=3Ds report=20 because he failed to object to it before it was adopted.  If = no=20 proper objection is made to the master=3Ds report=20 before the trial court adopts it, the report becomes conclusive on = the=20 issues considered by the master.  Owens-Corning Fibreglas = Corp. v.=20 Caldwell, 830 S.W.2d 622, 625 (Tex. App.CHouston=20 [1st Dist.] 1991, orig. proceeding); Martin v. Martin, 797 = S.W.2d=20 347, 350 (Tex. App.CTexarkana=20 1990, no writ); McCrory & Co. v. Avery Mays Constr. = Co., 690=20 S.W.2d 333, 334 (Tex. App.CDallas=20 1985, writ ref=3Dd n.r.e.);=20 Novotny v. Novotny, 665 S.W.2d 171, 173 (Tex. = App.CHouston=20 [1st Dist.] 1983, writ ref=3Dd n.r.e.);=20 Cameron v. Cameron, 601 S.W.2d 814, 815 (Tex. Civ. = App.CDallas=20 1980, no writ).  It is the dissatisfied party=3Ds burden=20 to make specific objections before the report is adopted by the=20 court.  Martin, 797 S.W.2d at 350; McCrory & = Co.,=20 690 S.W.2d at 334; Novotny, 665 S.W.2d at 173; = Cameron, 601=20 S.W.2d at 815.  To the extent it is challenged by exceptions, = the=20 master=3Ds report=20 is not binding and the contested fact issues are to be tried de = novo=20 before the court if a jury has not been requested, or before a = jury if one=20 has been requested.  Minnich v. Jones, 799 S.W.2d 327, = 328=20 (Tex. App.CTexarkana=20 1990, orig. proceeding). 

In its=20 findings of fact, the trial court states it adopted the special=20 master=3Ds report=20 on June 6, 2005, and no objections had been made prior to its=20 adoption.  Woody asserts that the trial court adopted the = special=20 master=3Ds report=20 on June 8, 2005, not June 6, 2005, and he objected to the report = before=20 the trial court adopted it.  Woody maintains that even if the = trial=20 court adopted the special master=3Ds report=20 on June 6, 2005, he still objected to it prior to its = adoption. =20

Woody=20 states that at a hearing on April 11, 2005, the trial court was = aware that=20 he was Anot real=20 happy with that expert report.@ =20 However, there is nothing in the record showing what specific = objections=20 Woody had made to the special master=3Ds report=20 at that time.  Additionally, the following took place at the = April=20 11, 2005 hearing:

THE COURT:  = Okay. =20 Let me ask y=3Dall a question at = this=20 point.  Based on the summary judgment, what action is = necessary to=20 get the trust funded?

MR. WAGNER=20 [Carolyn=3Ds counsel]:  = Determine=20 what should go in there.

MS. BAYLESS=20 [Carolyn=3Ds counsel]:  = You have to=20 partition the assets that are remaining and that=3Ds an equitable = action. =20 You have to partition those assets that go into the Moon trust and = order=20 them distributed to the Moon trust because he=3Ds not doing = it.

MR. DENMAN = [Woody=3Ds counsel]:  = Judge, I=20 don=3Dt think that that = -- I=20 don=3Dt think this Court = --=20 it=3Ds not=20 equitable=20 because they=3Dre talking about=20 partitioning real property and that requires appointing of=20 commissioners and you=3Dve got to go = through a=20 valid partition.  This is not something -- we=3Dre talking about = real=20 property, and it=3Ds not = equitable.

THE COURT:  = Well,=20 I=3Dm not sure if = it=3Ds -- if the real = property --=20 is the title to the real property in the trust?

MR. WAGNER=20 [Carolyn=3Ds counsel]:  = Yes,=20 sir.

MS. BAYLESS=20 [Carolyn=3Ds counsel]:  = Yes. =20 And we=3Dre not talking = about a=20 partition of a tract of real property.  That=3Ds what = he=3Ds talking = about.

MR. DENMAN = [Woody=3Ds counsel]:  = Well, but,=20 Judge, to determine what assets should go where, I think=20 you=3Dve got to actually = partition=20 the real property or be involved with the real = property.

THE COURT:  = But you=20 would agree that that=3Ds not a jury=20 issue.

MR. DENMAN = [Woody=3Ds counsel]:  = Oh,=20 we=3Dll argue=20 indefinitely.

MR. MOORE=20 [Woody=3Ds=20 counsel]:  Your Honor, there are all sorts of -- there is=20 valuation of properties.  So, all those are factual = issues.  Those are -- the trier of facts, whoever = it=3Ds going to=20 be -- and we have a jury in this case -- has to decide all those=20 issues.  There is no -- I know of no legal authority to = bifurcate --=20 I mean we don=3Dt want two=20 trials of this lawsuit.  All these issues are tried = together.[13]

Woody=20 argued the valuation of the Trust properties was a fact = issue. =20 However, on June 8, 2005, Woody and Carolyn stipulated to values = of the=20 Trust properties.  With respect to the stipulation, = Woody=3Ds counsel=20 informed the trial court, A[t]hose=20 [values] will amend the Special Master=3Ds=20 report.@ =20 Woody did not assert the division of the property was a jury = issue. =20 To the contrary, Woody agreed the partition of real property is = not a jury=20 issue and further argued the partition of real property was not an = equitable action for the court, but it would have to be done = through the=20 appointment of commissioners. 

Next,=20 Woody asserts he objected to the special master=3Ds report=20 in his counterclaim, filed on May 27, 2005, in which he sought a=20 declaratory judgment Athat he,=20 and he alone, as Trustee of the Family Trust, has the power to = apportion=20 and allocate the real and personal properties of the Family Trust = in=20 distribution of the residue of Family Trust following the death of = Woodrow=20 V. Lesikar.@ =20 This is not a specific objection to any finding in the special=20 master=3Ds=20 report. 

Woody=20 further claims he objected, at the June 6, 2005 hearing before the = trial=20 court adopted the report, that it would be improper for the court = to adopt=20 the special master=3Ds division=20 of the trust property because it would interfere with the=20 trustee=3Ds=20 discretion.  We agree.  The following took place at the = hearing=20 on June 6, 2005:

THE COURT: =20 Here=3Ds what you have = got.  It=20 hadn=3Dt been objected = to.  The=20 issue is you have an unobjected Master=3Ds = report that specifically = reserved,=20 that wouldn=3Dt be admissible in = evidence=20 at trial, . . .

           = ;            =             &= nbsp;           &n= bsp;   =20 *       =20 *        *

THE COURT:  . = . . I=20 would say that perhaps a good use of the afternoon would be, or = maybe even=20 the next day for that matter, would be for the Court to hear = either=20 argument or maybe limited amount of testimony before I decide = to adopt=20 the report or not. . . . But if the report is approved by the = Court=20 then I feel like that the Defendant . . . .

           = ;            =             &= nbsp;           &n= bsp;   =20 *        *  =20      *

MR. MOORE = [Woody=3Ds counsel]:  = If I may,=20 the Court posed the question whether or not there is a Special=20 Master=3Ds report what is = the=20 effect.  It is our position it does not, for the reason that = the case=20 law we presented to the Court says, if the trust document itself = provides=20 that upon any distribution, including termination, that the = trustee has=20 the authority to make a partition in cash or in kind, and this = trust says=20 that, then the trustee of the trust is the only one that has the = authority=20 to make that distribution.

In the cases that = we have=20 cited and Plaintiffs [sic] Counsel cited, no other cases say = the Court=20 has the authority to make an equitable partition only if the trust = document doesn=3Dt make that=20 provision. 

           = ;            =             &= nbsp;           &n= bsp;   =20 *       =20 *        *

MR. DENMAN = [Woody=3Ds counsel]:  = Even with=20 the Court=3Ds ruling, if there = are two=20 trusts from a point in time, again, what we have, we have those = two=20 trusts, have divided ownership in the = property.

What Mr. Wagner has = argued=20 for over four months, and we have asked for authority and they = assure it=20 exists and we have not seen it, we couldn=3Dt find it in our = briefing, is=20 the Court has ruled there are two trusts.  = It=3Ds now to the = trustee to=20 divide the assets between the two trusts.  They can = complain=20 about how it=3Ds ultimately = divided up, but=20 Mr. Wagner keeps referring to equitable powers, and we find no=20 cases.  Only case we could find is if the Court looks at it = and in=20 those cases, and they do say the reason we=3Dre allowing in the = Court to=20 terminate the trust and partition the assets is because the trust = itself=20 did not provide the mechanism.  This trust did not provide = for a=20 termination.  It just said to split it.

So, what our = position is=20 from the legal standpoint, irregardless what = Patrice=3Ds report may or may = not say,=20 is the Court=3Ds power is not to = effectuate=20 that report.  But if there = is no=20 agreement that the assets would be undivided, the trustee would = then at=20 that point in time propose a plan, and if they felt that plan was=20 inequitable they could contest the plan.

THE=20 COURT:  Why don=3Dt we do=20 this:  Other than the allocation issue whether or not it = was=20 bogus, the $200,000, we will call it that, I will adopt for = whatever=20 benefit it does the rest of her plan and reserve the right after = hearing=20 some testimony and/or argument on the $200,000 issue from both = sides.=20 . . .[14]

We agree=20 that Woody objected that the Trustee had the authority to divide = Trust=20 assets prior to the trial court=3Ds adoption=20 of the special master=3Ds=20 report.  However, Woody=3Ds =20 objections that the Trustee had sole authority to divide Trust = assets do=20 not advance his argument that he was denied a jury trial when he = did not=20 believe it was a an issue for the jury to decide.

Woody=20 further maintains the trial court did not clearly adopt the = special=20 master=3Ds report=20 at the June 6, 2005 hearing, but, instead, urged the parties to = divide the=20 assets by agreement:

THE=20 COURT:  . . . What would be wrong with the Court saying, = asking=20 you-all, what would be a reasonable time to come up with a = proposal and,=20 you know, we informally going off the matrix that Ms. Ferguson put = down,=20 or come up with your own and then letting the other side have a = period of=20 time to decide.  What would be wrong with that?  =

However,=20 at the June 8 hearing, the trial court stated twice that it had = approved=20 the special master=3Ds report=20 with the exception of the allocation issue: 

MR. MOORE = [Woody=3Ds counsel]:  = Your Honor,=20 there is [sic] other deficiencies.

THE COURT:  = I have=20 approved the rest of the report.

MR. MOORE = [Woody=3Ds counsel]: We = understood the=20 Court to say if there were serious problems shown today about the=20 allocation that would open up the entire report.

THE=20 COURT:  No.  I didn=3Dt say=20 that, sir.  I have approved everything except the = portion=20 about -- . . . 

On June 8,=20 2005, prior to the start of the hearing, Woody filed written = objections to=20 the special master=3Ds report,=20 objecting to the valuations, adjustments, and proposed division of = the=20 Trust estate contained in the special master=3Ds=20 report.  Therefore, according to Woody, because the trial = court did=20 not adopt the special master=3Ds report=20 until at least June 8, 2005, his objections to the report were=20 timely.  To the contrary, as observed above, the trial court = stated=20 on June 8 that it had already adopted the master=3Ds report=20 in part.

Even if=20 Woody=3Ds June 8=20 objections had been timely, they were not sufficient to preserve=20 error.  Woody=3Ds=20 objections state, in relevant part: 

On March 18, 2005, = counsel=20 for Defendant stated in open court at [a] hearing held in this = matter that=20 Defendant questioned the determination and valuations made in the=20 report.  Further, at [a] hearing held in this matter on April = 11,=20 2005, counsel for the Defendant reiterated to the Court that fact = issues=20 regarding division of the trust estate and valuation of assets = were=20 remaining fact issues to be tried.  Exhibit A - transcript of = April=20 11, 2005 hearing, page 64.

           = ;            =             &= nbsp;           &n= bsp;           =20 III.

Defendant reasserts = his=20 objection to the valuations, adjustments and proposed division of = the=20 trust estate contained in the Report of the Special = Master.

WHEREFORE,=20 Defendant requests that the Court grant Defendant an evidentiary = hearing=20 on the contested portions of the Special Master=3Ds Report=20 and further that the Court deny division of the trust based upon = said=20 Report.

Woody=3Ds=20 complaint about the valuations of the Trust property was resolved = when he=20 entered into a stipulation regarding those valuations. =20 Woody=3Ds=20 complaint about the division of the Trust estate is a general, not = specific, objection, and, moreover, the special master=3Ds report=20 is not included in the appellate record so we do not know what the = objectionable recommended division was.  With regard to=20 Woody=3Ds=20 reference to the April 11, 2005 hearing, Woody did not object to = the=20 proposed division in the special master=3Ds report=20 at that hearing, but, instead, agreed it was not a jury = issue. =20 Additionally, with regard to Woody=3Ds=20 reference to a hearing that took place on March 18, 2005, we do = not have a=20 record of that hearing and cannot review what his objections may = have=20 been. 

We=20 conclude the record supports the trial court=3Ds finding=20 that it adopted the special master=3Ds report=20 on June 6, 2005, and Woody=3Ds June 8=20 objections to the report were not timely.  = Appellant=3Ds third=20 issue is overruled. 

           = ;            =             &= nbsp;           &n= bsp;=20 Attorney=20 Fees

In his=20 fifth issue, Woody claims the evidence is legally insufficient to = support=20 the trial court=3Ds finding=20 that $400,000 was a reasonable and necessary attorney fee under = Section=20 37.009 of the Texas Civil Practice and Remedies Code (ADeclaratory=20 Judgments Act@)[15]=20 and Section 114.064 of the Texas Property Code.[16] =20 In its findings of fact, the trial court found a reasonable, = necessary,=20 and customary fee for Carolyn=3Ds=20 attorneys is $400,000.  In its conclusions of law, the trial = court=20 determined Carolyn is entitled to recover attorney fees under the=20 Declaratory Judgments Act and the Texas Property Code. =20

The grant=20 or denial of attorney fees under both the Declaratory Judgments = Act and=20 the Property Code lies within the discretion of the trial court, = and its=20 judgment will not be reversed on appeal absent a clear showing it = abused=20 that discretion.  Oake v. Collin County, 692 S.W.2d = 454, 455=20 (Tex. 1985); Lyco Acquisition 1984 Ltd. P=3Dship v.=20 First Nat=3Dl Bank of=20 Amarillo, 860=20 S.W.2d 117, 121 (Tex. App.CAmarillo=20 1993, writ denied).  The trial court abuses its discretion = when it=20 reaches a decision so arbitrary and unreasonable as to amount to a = clear=20 and prejudicial error of law.  Joe v. Two Thirty Nine = Joint=20 Venture, 145 S.W.3d 150, 161 (Tex. 2004).  There is no = abuse,=20 however, simply because a trial court may decide a matter within = its=20 discretion differently than an appellate court.  Downer v. = Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).=20

Under an=20 abuse of discretion standard, legal and factual sufficiency of the = evidence are relevant factors in assessing whether the trial court = abused=20 its discretion.  Beaumont Bank, N.A. v. Buller, 806 = S.W.2d=20 223, 226 (Tex.1991).  We review the trial court=3Ds findings=20 of fact for legal and factual sufficiency of the evidence by the = same=20 standards applied in reviewing the evidence supporting a = jury=3Ds=20 finding.  Catalina v. Blasdel, 881 S.W.2d 295, 297 = (Tex.=20 1994).  When reviewing the legal sufficiency of the evidence, = we=20 review the evidence in the light most favorable to the challenged = finding=20 and indulge every reasonable inference that would support = it. =20 City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. = 2005).  We=20 credit favorable evidence if a reasonable fact finder could, and = disregard=20 contrary evidence unless a reasonable fact finder could not.  = Id. at 827.  The evidence is legally sufficient if it = would=20 enable fair-minded people to reach the verdict under review.  = Id. 

Under both=20 the Declaratory Judgments Act and the Texas Property Code, the = trial court=20 may award reasonable and necessary attorney fees as are equitable = and=20 just.  Tex. Civ. = Prac. &=20 Rem. Code Ann. ' = 37.009;=20 Tex. Prop. Code = Ann.=20 ' = 114.064.  Whether attorney fees are reasonable and necessary = are fact=20 questions to be determined by the fact finder.  Ridge Oil = Co. v.=20 Guinn Invs., Inc., 148 S.W.3d 143, 161 (Tex. 2004); Hachar = v.=20 Harchar, 153 S.W.3d 138, 142 (Tex. App.CSan=20 Antonio 2004, no pet.).  Whether attorney fees are equitable = and just=20 are questions of law for the court to decide.  Ridge Oil = Co.,=20 148 S.W.3d at 161; Harchar, 153 S.W.3d at 142.  = AUnreasonable=20 fees cannot be awarded, even if the court believed them just, but = the=20 court may conclude that it is not equitable or just to award even=20 reasonable and necessary fees.@ =20 Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); = Hachar,=20 153 S.W.3d at 142. 

The Texas=20 Supreme Court has set forth eight factors for determining the=20 reasonableness and necessity for attorney fees: (1) the time and = labor=20 involved, the novelty and difficulty of the questions involved, = and the=20 skill required to perform the legal services properly; (2) the = likelihood=20 that the acceptance of the particular employment will preclude = other=20 employment by the lawyer; (3) the fee customarily charged in the = locality=20 for similar legal services; (4) the amount involved and the = results=20 obtained; (5) the time limitations imposed by the client or the=20 circumstances; (6) the nature and length of the professional = relationship=20 with the client; (7) the experience, reputation, and ability of = the lawyer=20 or lawyers performing the services; and (8) whether the fee is = fixed or=20 contingent on results obtained or uncertainty of collection before = the=20 legal services have been rendered.  Arthur Andersen & = Co. v.=20 Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).  =

Woody=20 stipulated to the qualifications of Carolyn=3Ds=20 attorneys, Bobbie Bayless, Brett Wagner, and Vaughn Stewart.  = Bayless, whose practice has always been Acommercial/civil=20 litigation,@ = has been=20 licensed since 1980, and is board certified in civil trial = law. =20 Bayless has practiced in Brazoria County in cases other than this = case and=20 believes she has sufficient familiarity with rates charged in = Brazoria=20 County to provide this testimony.  Bayless stated her hourly = rate is=20 $300, which she opined is a reasonably hourly rate based on her=20 years=3D = of=20 practice and qualifications in Harris and Brazoria Counties.  = She did=20 not think the hourly rate is significantly different between = Harris and=20 Brazoria Counties.  Bayless did not know Wagner=3Ds or=20 Stewart=3Ds hourly=20 rates, but opined that $300 is also a reasonable hourly rate for = both=20 Wagner and Stewart. 

Bayless=20 testified she, Wagner, and Stewart spent a total of 2,500 hours on = this=20 case.  Based on an hourly fee of $300 for each of three = attorneys for=20 2,500 spent on this case, the total fee would be $750,000.  = However,=20 Bayless opined a reasonable fee would be $500,000.  Bayless = further=20 reduced that amount to $400,000 (based on 1,333 hours) by = excluding time=20 spent on the proceedings involving Carolyn=3Ds=20 challenge to the sale of the Airport Stock to Woody.  Bayless = testified she has a 40% contingency fee contract with = Carolyn.  It is=20 estimated Carolyn=3Ds half the=20 of the residue of the Family Trust is $1,000,000, resulting in a = $400,000=20 fee to Carolyn=3Ds=20 attorneys under the contingency fee contract.  Bayless, = however,=20 explained she was testifying about a reasonable fee.[17] =20

Bayless=20 stated she has kept only some time records in this case, but she = did not=20 produce them at trial, and she was not aware of Wagner=3Ds or=20 Stewart=3Ds having=20 kept time records.  In spite of there being no time records, = Bayless=20 explained her belief that at least 2,500 hours have been spent on = this=20 case is based on her familiarity with the case and the work that = has been=20 done.  She estimated Stewart=3Ds and=20 Wagner=3Ds time=20 spent on the case from the work she knows they have done and from = her=20 experience knowing the amount of work necessary to a case. =20

Bayless=20 was not able break down in detail how much time was spent = attending each=20 hearing or preparing each pleading, but, instead, she broke down = the hours=20 Carolyn=3Ds=20 attorneys spent on larger aspects of the case.  Bayless = testified=20 that when Carolyn came to her, there had been a proceeding in = Harris=20 County in which Woody had asserted Carolyn had violated the = no-contest=20 clause by seeking an accounting.  Bayless stated there were = 100 hours=20 of pre-suit investigation regarding Carolyn=3Ds request=20 for an accounting, which had been requested, but not given.  = Between=20 50 and 75 hours were expended on determining causes of action and=20 remedies, drafting initial pleadings, and attending a TRO = hearing. =20 Carolyn=3Ds=20 attorneys spent at least 200 hours on discovery requests, hearings = on=20 discovery requests, and requests for living expenses for = Carolyn. =20 Bayless stated she spent at least 350 hours going through = documents=20 produced by Woody and follow-up with Woody=3Ds=20 attorneys about what documents had been requested, but were not = among the=20 documents produced to Carolyn.  Bayless testified 350 hours = were=20 spent on research and preparation of Carolyn=3Ds motion=20 for summary judgment on the trustee issue and the hearing on the = that=20 motion.  Bayless further stated between 50 and 75 hours were = spent on=20 meeting with the special master and gathering and providing = documents to=20 the special master, and between 100 and 150 hours, including = performing=20 research and attending hearings, were expended on the case after = the=20 special master had filed her report.  Finally, the total = amount of=20 time spent for preparation for trial and attending seven days of = trial was=20 600 hours. 

The trial=20 court observed that, according to Bayless=3D = testimony, the total amount of time expended by = Carolyn=3Ds=20 attorneys was Acloser to=20 2,000@ = hours,=20 rather than the initial 2,500-hour figure.  However, Bayless = had=20 already agreed to reduce the amount of time on which she based = their=20 request for attorney fees to about 1,300 hours. 

One of=20 Woody=3Ds trial=20 attorneys, William Denman, testified in his opinion, real estate, = probate,=20 and trust litigators do not charge more than $250 an hour in = Brazoria=20 County.  Denman also opined it is not reasonable for three = lawyers to=20 charge a total of $900 an hour to prepare and present this case at = trial;=20 instead, a case this size would require two attorneys at a total = of $500=20 an hour.  Time records reflect that Woody=3Ds=20 attorneys have spent 700 hours on this case.  Denman = testified it is=20 unusual to have plaintiff=3Ds counsel=20 spend more hours on a case than defense counsel.  It was = stipulated=20 that Woody=3Ds attorney=20 fees were $153,000.  Denman also stated the only novel issue = of law=20 was related to the in terrorem clause, while the other = issues were=20 standard real estate and trust issues. 

Carolyn=20 asserts a trial court does not abuse its discretion when the = attorney=20 testifies that the fees incurred were reasonable and necessary and = summarizes the hours and rate charged.  In support of this=20 proposition, Carolyn relies on London v. London, in which = we=20 stated, A[t]here is=20 no abuse of discretion where an award of attorney fees is = supported by the=20 evidence,@ = and the=20 cases cited in that same footnote.  94 S.W.3d 139, 147 n.3 = (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet).  Carolyn=3Ds reliance=20 on London is misplaced.  The cases cited in = London=20 involved attorney fee awards that were supported by time records = or=20 testimony as to specific hours expended.[18] =20

Here,=20 Bayless had no knowledge of Wagner=3Ds or=20 Stewart=3Ds hourly=20 rates.  Although Woody stipulated to Wagner=3Ds and=20 Stewart=3Ds=20 qualifications, Bayless did not testify as to their experience = justifying=20 the $300 hourly rate for each of them.  Bayless kept some = time=20 records, but she did not bring them to the trial.  She was = not aware=20 of any time records kept by Wagner or Stewart.  Bayless gave = rough=20 estimates of the amount of time spent by her, Wagner, and Stewart = on=20 general, but not specific, aspects of the case. 

Carolyn=20 further claims the trial court knew the amount of work the case=20 required.  However, the trial court may not take judicial = notice of=20 the attorney fees under section 37.009.  See Dickey v. = McComb Dev.=20 Co., 115 S.W.3d 42, 46 (Tex. App.CSan=20 Antonio 2003, no pet.) (holding that when a claim for fees does = not fall=20 under Section 38.001 of the Texas Civil Practice and Remedies = Codes, the=20 trial court may not take judicial notice of attorney fees). =20

Moreover,=20 while Bayless testified she was segregating the amount of time = spent on=20 the challenge to the sale of the Airport Stock to Woody, she = provided no=20 testimony that she was segregating time spent on = Carolyn=3Ds other=20 tort claims, i.e., breach of fiduciary duty (not related to sale = of=20 Airport Stock), negligence, interference with inheritance, = conversion, and=20 civil conspiracy, which she nonsuited and for which attorney fees = may not=20 be recovered,[19]=20 from the trustee issue.  When the plaintiff seeks to recover = attorney=20 fees in a case involving multiple claims, at least one of which = supports=20 an award of fees and at least one of which does not, the plaintiff = must=20 offer evidence segregating attorney fees among various = claims. =20 Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, = 10B11 (Tex.=20 1991), holding modified by Tony Gullo Motors I, L.P. v. = Chapa, 212=20 S.W.3d 299 (Tex. 2006).  There is an exception to the = segregation=20 rule:  Awhen=20 discrete legal services advance both a recoverable and = unrecoverable claim=20 that they are so intertwined that they need not be = segregated.@ =20 Chapa, 212 S.W.3d at 313B14. =20 Carolyn offered no evidence that segregation was not necessary.=20 Woody=3Ds fifth=20 issue is sustained. 

An award=20 of attorney fees based on unsegregated fees requires a = remand. =20 Chapa, 212 S.W.3d at 314; Sterling Title Guar. Co., = 822=20 S.W.2d at 11.  We reverse that portion of the judgment = awarding=20 Carolyn attorney fees and remand it to the trial court for = proceedings=20 consistent with this opinion.  The remainder of the judgment = is=20 affirmed. 

Accordingly,=20 the judgment of the trial court is affirmed, in part, and reversed = and=20 remanded, in part.

 

 

 

 

 

/s/     =20 J. Harvey Hudson

Justice

 

 

 

 

Judgment=20 rendered and Opinion filed July 10, 2007.

Panel=20 consists of Justices Yates, Anderson, and Hudson.


[1]  As discussed below, Woody = disputes June 6,=20 2005 as the date the trial court adopted the special = master=3Ds report, arguing the trial court did = not adopt=20 the special master=3Ds report until June 8, 2005. =20

[2]  Emphasis added.  =

[3]  Emphasis added.  =

[4]  Woody does not assert that the = trial court=20 erred in denying his counter-motion for interlocutory summary = judgment on=20 this issue. 

[5]  Emphasis added.  =

[6]  Emphasis added.  =

[7]  Roberts, 188 S.W.3d at 210 = (citing=20 Black=3Ds Law=20 Dictionary 1379). =20

[8]  Black=3Ds Law=20 Dictionary 1375. =20

[9]  Woody also raised his in = terrorem=20 defense in his second supplemental answer, which Carolyn = asserts was=20 filed untimely, after the docket control order=3Ds cut-off date the for filing amended=20 pleadings.  Woody asserts his in terrorem defense was = properly=20 before the court because Carolyn had already put it in issue by = asking the=20 court, in her petition, to construe it.  See Phillips v.=20 Phillips, 820 S.W.2d 785, 789 (Tex. 1991) (quoting Raney v. = White, 267 S.W.2d 199, 200 (Tex. Civ. AppCSan Antonio 1954, writ ref=3Dd)) (A>When a plaintiff in his pleadings = anticipates=20 defensive matters and pleads them, a defendant may rely upon the = defenses=20 though his only pleading is a general denial.=3D@).  However, as discussed below,=20 Woody=3Ds interlocutory motion for summary = judgment was=20 not timely filed and Carolyn=3Ds breach of fiduciary duty claim did not = violate=20 the in terrorem clause. 

[10]  Woody contends the trial court = considered=20 his in terrorem defense by denying his counterclaim on the = merits=20 in the final judgment.  However, Woody=3Ds counterclaim  asserts that he = alone had=20 authority to apportion and allocate trust assets:

By way of counterclaim in the event that = the Court=20 orders a distribution of the assets of the Family Trust, Defendant = seeks=20 as affirmative relief a declaratory judgment that he, and he = alone, as=20 Trustee of the Family Trust, has the power to apportion and = allocate the=20 real and personal properties of the Family Trust in distribution = of the=20 residue of the Family Trust following the death of Woodrow V.=20 Lesikar.

Thus, Woody=3Ds in terrorem claim was not = included in his=20 counterclaim and it does not appear that the trial court = considered=20 it.  Indeed, with respect to Woody=3Ds in terrorem defense, the trial = court=20 stated, AI think it=3Ds too late to raise that = issue.@ 

[11]  Carolyn=3Ds breach of fiduciary claim against = Woody for his=20 purchase of the Airport Stock from the Family Trust is not part of = this=20 appeal.  In an order dated April 11, 2005, and a nunc pro = tunc order=20 dated September 13, 2005, the trial court severed all issues = related to=20 the sale of the Airport Stock. 

[12]  Woody had previously stated in = his response=20 to Carolyn=3Ds motion for partial summary judgment = that he was=20 not invoking the in terrorem clause:

 

[Mr. Lesikar] even provided that if = Carolyn (or=20 anyone else) contested the directions he gave in the trust they = would=20 forfeit their beneficial interest.  Defendant has not = attempted to=20 invoke the clause in the Family Trust because he believes Carolyn = is=20 entitled to her rightful share.

[13]  Emphasis added.

[14]  Emphasis added.

[15]  Tex. Civ. Prac. & Rem Code=20 Ann. ' 37.009 (Vernon 1997).

[16]  Tex. Prop. Code Ann. = ' 114.064 (Vernon 2007).

[17]  A party=3Ds contingent fee contract alone cannot = support an=20 award of attorney fees, but, instead, is a factor to be considered = by the=20 fact finder.  Arthur Andersen & Co, 945 S.W.2d at=20 818.  A party must prove the amount of fees incurred was both = reasonable and necessary to the prosecution of the case.  = Id.=20 at 818B19.

[18]  See, e.g., Farish v. = Farish, 921=20 S.W.2d 538, 546 (Tex. App.CBeaumont 1996, no writ) (finding=20 stipulation by appellant=3Ds counsel as to appellee=3Ds qualifications and reasonableness = of hourly=20 fee and appellee=3Ds submission to trial court of = itemized=20 statements sufficient to support award of attorney fees); = Thomas v.=20 Thomas, 895 S.W.2d 895, 898 (Tex. App.CWaco 1995, writ denied) (finding no = abuse of=20 discretion in award of attorney fees based on attorney=3Ds testimony regarding specific number = of hours=20 spent on motion to modify child support order and hourly rate=20 charged); Cohen v. Sims, 830 S.W.2d 285, 290 (Tex. = AppCHouston [14th Dist.] 1992, writ denied) = (finding=20 award of attorney fees was not abuse of discretion where attorney=20 testified as to usual and customary fees charged in modification = action,=20 specific number of hours expended, and hourly rate); = Coke v.=20 Coke, 802 S.W.2d 270, 278 (Tex. App.CDallas 1990, writ denied) (finding = testimony of=20 attorney=3Ds qualifications, number of hours = expended, hourly=20 rate, and summary of services rendered sufficient to = support award=20 of attorney fees); MacCallum v. MacCallum, 801 S.W.2d 579, = 587=20 (Tex. App.CCorpus Christi 1990, writ denied) = (finding=20 evidence supporting attorney fees was specific, including = testimony=20 regarding experience and hourly rate, and testimony that services = were=20 related to hearing and necessary to case); Laviage v. = Laviage, 647=20 S.W.2d 758, 761 (Tex. App.CTyler 1983, no writ) (finding evidence = of=20 counsel=3Ds hourly rate, credentials, and = expertise in=20 family law, and records kept, prepared, and processed = supported=20 award of attorney fees). 

[19]  See Metropolitan Life Ins. Co. = v.=20 Haney, 987 S.W.2d 236, 243B44 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) = (stating=20 attorney fees are not recoverable on tort claims); Villasenior = v.=20 Villasenior, 911 S.W.2d 411, 420 (Tex. App.CSan Antonio 1995, no writ) (same).  =

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