in the Estate of Robert L. Wright

Affirmed and Majority and Dissenting Opinions filed December 15, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00401-CV

IN THE ESTATE OF ROBERT L. WRIGHT, DECEASED

On Appeal from Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 410,300

MAJORITY OPINION

This appeal concerns the disposition of a particular piece of property owned

by the decedent, Robert L. Wright. Appellant Robert Tautenhahn is the

independent executor and a named beneficiary of the will admitted to probate.

Appellee Leroy Stroman contested the will and sought to establish his entitlement

to the particular property, among other things. The trial court held that the will in

question was valid and properly admitted to probate but that Wright had gifted the

property to Stroman. Accordingly, the trial court created a constructive trust over

the property favoring Stroman. The trial court also awarded attorney’s fees to

Stroman to be paid from Wright’s estate because Stroman in good faith defended a

different will in which he was a named beneficiary.

In three issues on appeal, Tautenhahn contends that (1) the trial court erred

in basing its decision that Wright made a gift of the property to Stroman on

testimony that was inadmissible under the so-called Dead Man’s Rule, (2) the

evidence was legally insufficient to support the trial court’s gift finding, and (3) the

trial court erred in awarding Stroman attorney’s fees.1 We affirm.

Background

Prior to his death, Robert L. Wright owned several properties in Brazoria

and Harris counties in Texas. When Wright died on January 10, 2012, at the age of

87, he was not married and had no surviving children, parents, or siblings. A will

purportedly executed on July 7, 2010 was admitted to probate on February 21,

2012. This will named Robert Tautenhahn as independent executor and

bequeathed half of Wright’s estate to Tautenhahn and half to Lindsey Bozeman.

Bozeman disclaimed her share of the inheritance shortly after Wright’s death.

Leroy Stroman subsequently filed an application to contest the validity of the will,

alleging forgery, undue influence, and a lack of testamentary capacity. Stroman

asserted that another, unproduced instrument that bequeathed several properties to

him was the proper will to be probated. Stroman further alleged that Wright had

gifted him a property located at 105 Sweeney Street in West Columbia, Texas and

in the alternative, that he was entitled to reimbursement for expenses at that

1

In his appellate brief, Stroman raised cross-issues and requested more relief than the

trial court had already given him. Tautenhahn filed a motion to strike those portions of

Stroman’s brief. We granted that motion and struck the portions of Tautenhahn’s brief raising

cross-issues and requesting greater relief than he received from the trial court. See In re Estate of

Wright, No. 14-14-00401-CV (Tex. App.—Houston [14th Dist.] March 30, 2015, order).

Accordingly, we will not further consider the cross-issues or requests for greater relief in this

appeal.

2

property.

Stroman testified that he began working for Wright in 1987 or 1989, initially

doing general maintenance and later as a manager and supervisor for many of

Wright’s properties.2 According to Stroman, he had a very close relationship with

Wright, “like father and son.” When Stroman told Wright that a house he liked, at

105 Sweeney Street, was put on the market in 1994, Wright bought the house and

gave Stroman the keys. For the next two years or so, Stroman paid Wright $400 a

month for the house. Wright then told Stroman “that was it,” the house was

Stroman’s. Stroman said that he never tried to get Wright to sign over a deed to

the property because he trusted Wright and, shortly after Stroman made the last

payment, Wright showed him a copy of a will which showed Stroman as receiving

the 105 Sweeney Street property. Tautenhahn acknowledged that such a will

existed at one time but argued it was superseded by later wills. Copies of the will

shown to Stroman apparently were discarded when Wright’s condo was cleaned

out while he was in the hospital, and no copy was produced at trial.

Stroman further stated that he had lived at the 105 Sweeney Street property

continuously since about 1994 except for an eight month period when the house

was being remediated due to mold. Stroman said that he paid the property

insurance premiums and the insurance was in his name.3 When the mold

remediation occurred, the insurance company only dealt with Stroman and made

the checks out to Stroman and the remediation contractor. Stroman estimated the

total amount of insurance proceeds—including that needed to restore the home and

2

Much of the testimony and other evidence at trial related to the state of Wright’s mental

faculties in and around July 2010, when the probated will was signed. Other evidence related to

the contentions of forgery and undue influence. That evidence will not be recounted in detail

here as it is unnecessary to the issues properly raised in the appeal.

3

Stroman said that initially Wright took out the insurance policy but then put it in

Stroman’s name as insured and paid the premiums out of Stroman’s paycheck.

3

provide him with a hotel room while the work was being done—at $135,000. He

further valued the current worth of the house to be around $100,000.

James Wleczyk testified once in casual conversation, Wright told him that

he was going to leave a lot of properties to Stroman when he died because Stroman

was the only one “that he could count on when he needed something.” According

to Wleczyk, Wright indicated all of his properties in West Columbia would be left

to Stroman, including the house Stroman was then living in, which Wleczyk

referred to as “Leroy’s house.” Wleczyk recalled that this conversation occurred in

2009 or 2010.

Tautenhahn testified that he met Wright in 1961 through the Big Brothers

Association when Wright was assigned as Tautenhahn’s mentor. According to

Tautenhahn, they kept in touch over the years; “it’s kind of like having an uncle, he

is just always there,” he said. In 2009, Wright asked Tautenhahn to help him with

his rental properties and straighten out his finances.

Tautenhahn stated that in 2010, he had a crew of workers clean Wright’s

condo, which apparently was full of papers and other possessions retained through

the years. According to Tautenhahn, Wright regularly had wills prepared, and the

crew discovered and discarded copies of a number of wills. Tautenhahn explained

that he assumed if anyone needed one of the wills, a copy would be found in a safe

place. In addition to the July 7, 2010 will that was admitted to probate, wills from

1979 and 1997 were admitted into evidence. The 1997 will included Stroman as a

beneficiary, but Stroman said that was not the will Wright had shown him. The

1997 will bequeathed a percentage of Wright’s estate to Stroman rather than

naming specific properties. Tautenhahn acknowledged that while cleaning

Wright’s condo, he saw a document that listed Stroman as the recipient of 105

Sweeney Street. He did not recall specifically whether it was a will or a deed, but

4

he said, “It read more like a will.” When Wright began having medical issues,

Stroman asked to have 105 Sweeney Street transferred into his name. Tautenhahn

pressed Wright to transfer the property and even began the process, but Wright

refused because Stroman had not been appreciative. Tautenhahn explained that it

would have helped Wright’s finances to be rid of the property because its taxes

were overdue. In November 2011, Tautenhahn attempted to have Stroman evicted

from 105 Sweeney Street.4 Tautenhahn said the eviction proceeding was at

Wright’s direction as Wright had come to feel Stroman was “not very

appreciative.” In his testimony, Stroman noted that in prior wills, Wright had

consistently provided significant gifts for the University of Texas, thus casting

doubt on the validity of the July 7, 2010 will, which left nothing for the university.

Stroman said that Tautenhahn called him at one point and was reading parts of

Wright’s will over the phone that left properties to Stroman, asking Stroman,

“what kind of damn hold do you have on Mr. Wright?”

When the trial court asked Stroman whether he was making a legal or

equitable argument that the property became his prior to Wright’s death or that

there is a purported will that had not been produced, Stroman replied “both.”

Stroman further acknowledged that taxes were past due on the property. He said

that he thought those were going to be paid by the estate and he saw no reason to

4

The evidence suggests that Tautenhahn made two attempts to evict Stroman from the

property. The first attempt, while Wright was still alive, resulted initially in Stroman being

removed from the property, but that decision was apparently withdrawn at some point and

Stroman returned. The second attempt occurred after Wright’s death when Tautenhahn was

named independent executor. The outcome of this proceeding was not explicitly discussed at

trial, but Stroman remained on the property at that time. Other details regarding the two attempts

at eviction are sketchy in the record.

This court has already issued an opinion in an appeal in Tautenhahn’s forcible entry and

detainer action against Stroman. Stroman v. Tautenhahn, 465 S.W.3d 715 (Tex. App.—Houston

[14th Dist.] 2015, pet. dism’d w.o.j.). The issues addressed in that appeal are not relevant to the

present case.

5

pay the taxes if he was not going to be awarded the property.

At the conclusion of the trial, the court permitted Stroman’s attorney to put

on evidence regarding her fees, while withholding judgment as to whether those

fees were recoverable in the case. Tautenhahn objected to any award of fees

primarily based on Stroman’s failure to plead for such relief. At the trial court’s

invitation, Stroman filed a post-trial document entitled “Authority for Attorney’s

Fees,” setting forth the basis for his request that fees be awarded.

In its final judgment, the trial court determined that the July 7, 2010 will was

valid, that Wright had testamentary capacity when he executed it, that no fraud or

forgery occurred, and that no undue influence was brought to bear on Wright to

sign the will. The court further determined that the July 7, 2010 will revoked all

previous wills, codicils, and testamentary devices of Wright and that Tautenhahn

was properly appointed independent executor under the will. Regarding 105

Sweeney Street, however, the trial court determined that Wright had made “a

completed oral gift” of the property to Stroman in or around 1996. On that basis,

the court ordered the property be placed in a constructive trust and transferred by

special warranty deed to Stroman as the sole beneficiary of the constructive trust.

The court noted that this order rendered Stroman’s claim for reimbursement of

expenses moot. Lastly, the trial court ordered Tautenhahn, as independent

executor, to pay Stroman’s attorney’s fees as a good faith proponent of a purported

will under former Probate Code section 243. The court calculated Stroman’s

attorney’s fees to be $57,179.15. All requested relief not expressly granted in the

judgment was denied. The trial court’s subsequent findings of fact and conclusions

of law essentially track the holdings in the final judgment.

Dead Man’s Rule

In his first issue, Tautenhahn contends that the trial court erred in basing its

6

finding of an oral gift of 105 Sweeney Street on evidence that was inadmissible

under the Dead Man’s Rule. This hybrid argument neither expressly asserts the

trial court erred in admitting evidence that should have been excluded nor directly

challenges the legal sufficiency of the evidence (as does Tautenhahn’s second

issue). Regardless, we conclude that the factual premise on which the argument is

based—that the trial court based its decision on inadmissible evidence—is not

supported by the record.

The Dead Man’s Rule generally prohibits a party to certain types of lawsuits

from testifying regarding oral statements by a testator unless the statements can be

corroborated or are solicited by the opposing party. Tex. R. Evid. 601(b).5 As

Tautenhahn points out, Stroman testified, or attempted to testify, several times

regarding what Wright said about 105 Sweeney Street. Tautenhahn maintains that

5

Effective April 1, 2015, after trial in this case, Rule 601(b) was amended “to clarify its

meaning without making any substantive changes.” Tex. R. Evid. 601 cmt. Neither party

suggests that any difference between the two versions has any relevance in this case. The

relevant portions of the current version of the Dead Man’s Rule read as follows:

(b) The “Dead Man’s Rule.”

(1) Applicability. The “Dead Man’s Rule” applies only in a civil case:

(A) by or against a party in the party’s capacity as an executor,

administrator, or guardian; or

(B) by or against a decedent’s heirs or legal representatives and

based in whole or in part on the decedent’s oral statement.

(2) General Rule. In cases described in subparagraph (b)(1)(A), a party

may not testify against another party about an oral statement by the

testator, intestate, or ward. In cases described in subparagraph (b)(1)(B), a

party may not testify against another party about an oral statement by the

decedent.

(3) Exceptions. A party may testify against another party about an oral

statement by the testator, intestate, ward, or decedent if:

(A) the party’s testimony about the statement is corroborated; or

(B) the opposing party calls the party to testify at the trial about the

statement.

7

this testimony violated the Dead Man’s Rule because it described oral statements

by a testator and was not corroborated or solicited by an opposing party.

Tautenhahn additionally points out his trial counsel objected several times

when Stroman attempted to testify regarding Wright’s remarks. The trial court, in

fact, sustained most of the Dead Man’s Rule objections, thus excluding the

objected-to testimony.6 However, Tautenhahn’s lawyer did not request a running

objection to such evidence and did not object to the following exchanges between

Stroman and Stroman’s counsel:

Q. Okay. And did Mr. Wright have—did Mr. Wright tell you that he

would purchase the house for you?

A. Yes.

Q. And how much did you have to pay him monthly on the payment

for the house?

A. Four hundred.

Q. Okay. And at some point in time, did Mr. Wright tell you that—

that you owed him no more on the house?

A. Yes.

Q. Okay, and when was that?

A. It was two years or better that I paid him that and he told me that

was it, the house was mine.

Because Tautenhahn failed to object to this testimony, the trial court would

not have erred in considering it in determining whether Wright made an oral gift of

105 Sweeney Street to Stroman, regardless of whether such evidence would

otherwise have been inadmissible under the Dead Man’s Rule. See Tex. R. App. P.

6

At one point during a discussion of the applicability of the Dead Man’s Rule, the trial

judge suggested that he might at some point revisit his determination that the rule applied to

exclude testimony concerning Wright’s statements in respect to 105 Sweeney Street. There is no

place in the record, however, where the court explicitly revisited or reversed its original ruling

and stated it would consider the previously excluded evidence.

8

33.1(a) (providing that as a prerequisite to presenting a complaint for appellate

review, the record must show that the complaint was made to the trial court in a

timely and sufficiently specific manner); Wilkerson v. Wilkerson, 321 S.W.3d 110,

121 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (declining to address

admissibility of objected-to evidence because similar unobjected-to evidence was

sufficient to support trial court’s factual finding).

The trial court also overruled a few Dead Man’s Rule objections to similar

testimony, but even assuming the trial court erred in doing so, the failure to object

to the instances set forth above rendered such error harmless. See, e.g., Katy Int’l,

Inc. v. Jinchun Jiang, 451 S.W.3d 74, 94 (Tex. App.—Houston [14th Dist.] pet.

denied); Austin v. Weems, 337 S.W.3d 415, 421 (Tex. App.—Houston [1st Dist.]

2011, no pet.). For the foregoing reasons, we overrule Tautenhahn’s first issue.

Completed Oral Gift

In his second issue, Tautenhahn challenges the legal sufficiency of the

evidence to support the trial court’s finding that Wright made a completed oral gift

of 105 Sweeney Street during his lifetime. When reviewing for legal sufficiency,

we consider the evidence in the light most favorable to the finding and indulge

every reasonable inference that supports the challenged finding. City of Keller v.

Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a

reasonable factfinder could and disregard contrary evidence unless a reasonable

factfinder could not. Id. at 827. If there is more than a scintilla of evidence to

support the finding, the legal sufficiency challenge fails. BMC Software Belgium,

N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). As the trier of fact in this

case, the trial judge was the sole judge of witness credibility and of the weight to

be given testimony. See City of Keller, 168 S.W.3d at 819.

Generally, a conveyance of real property must “be in writing” and

9

“subscribed and delivered by the conveyor” or his agent. Tex. Prop. Code § 5.021

(“Instrument of Conveyance”); see also Tex. Bus. & Com. Code § 26.01(a), (b)(4)

(“Statute of Frauds”). The general rule does not apply, however, to a parol gift of

real estate in equity. Starr v. A.J. Struss & Co., No. 01-14-00702-CV, 2015 WL

4139028, at *4 (Tex. App.—Houston [1st Dist.] July 9, 2015, no pet.) (mem. op.).

To establish a valid parol gift of real estate in equity, a party must show: (1) a gift

in praesenti, that is, a present gift; (2) possession under the gift by the donee with

the donor’s consent; and (3) permanent and valuable improvements by the donee

with the donor’s consent or other facts demonstrating that the donee would be

defrauded if the gift were not enforced. E.g., id.; In re Estate of McNutt, 405

S.W.3d 194, 196 (Tex. App.—San Antonio 2013, no pet.); Troxel v. Bishop, 201

S.W.3d 290, 297 (Tex. App.—Dallas 2006, no pet.). To be a present gift, the

donor must, at the time he makes it, intend an immediate divestiture of the rights of

ownership out of himself and a consequent immediate vesting of such rights in the

donee. Starr, 2015 WL 4139028, at *5; Troxel, 201 S.W.3d at 297.

In challenging the sufficiency of the evidence regarding parol gift,

Tautenhahn focuses exclusively on the first element, which requires evidence of

intent to make a present gift of the property as opposed to a promise of a future

gift. Tautenhahn argues that Stroman’s admission that Wright stated he would

make provision for the property in his will negated as a matter of law any intent to

make a present gift of 105 Sweeney Street during Wright’s lifetime. We disagree.

Tautenhahn cites O’Donnell v. Halladay, 152 S.W.2d 847 (Tex. App.—El

Paso 1941, writ ref’d w.o.m.), for the proposition that including property in a will

negates any intention to make a present gift. O’Donnell, however, is readily

distinguishable. The jury there found that no gift had been made despite the

donor’s delivery of his bank passbook to the plaintiff. Id. at 848-49. An

10

instrument that purported to be a will evidenced an intention to make a gift in the

future and was sufficient to support the jury’s finding. Id. at 851. The court

observed no evidence of the donor’s intention sufficient to constitute a gift in

connection with the delivery of the passbook. Id. Here, the trial judge found

evidence of a completed life-time gift in connection with the delivery of the

property to Stroman.

Tautenhahn also cites two cases to support his argument that evidence a

donor intended for property to remain his until death negates present donative

intent. See Dorman v. Arnold, 932 S.W.2d 225 (Tex. App.—Texarkana 1996, no

writ); Olive v. Olive, 231 S.W.2d 480 (Tex. Civ. App.—Dallas 1950, no writ).

Again, both cases are readily distinguishable. In Dorman, testimony clearly

established that although the donee’s name was placed on a CD and savings

account prior to the donor’s death, the contemplated gift was of whatever funds

remained in the savings vehicles at the time of the donor’s death and not before.

932 S.W.2d at 227-29. Similarly, in Olive, although the donor and donee opened a

joint bank account with a right of survivorship, evidence was clear that the donor

intended for the donee to receive whatever funds remained in the account at the

time of the donor’s death. 231 S.W.2d at 481-83. In each case, the donor intended

to use the money in the account during the balance of the donor’s lifetime. There

was simply no evidence of an intention to make a present gift. Here, in contrast,

the language Wright allegedly used, indicating the house was Stroman’s, as well as

his actions in discontinuing offsets from Stroman’s paychecks, are clearly

suggestive of an intention to bestow a present gift.

Moreover, the fact that Wright may have included 105 Sweeney Street in a

subsequent will does not necessarily negate the evidence that Wright had already

gifted equitable title to that property to Stroman. In Dickson v. Dickson, 993

11

S.W.2d 735, 740 (Tex. App.—Houston [14th Dist.] 1999, no pet.), we held that a

gift of land obtained by a parol gift would not be passed by will. A will only

speaks at the time of the testator’s death, and the estate’s property cannot be

assessed until that date. The will can only give things possessed by the testator at

his death. Id. at 740; see also Shriner’s Hosp. for Crippled Children of Tex. v.

Stahl, 610 S.W.2d 147, 150 (Tex. 1980).

Equitable title indicates a beneficial interest in property and entitles the

holder to formal legal title. Longoria v. Lasater, 292 S.W.3d 156, 165 (Tex.

App.—San Antonio 2009, pet. denied) (citing Black’s Law Dictionary at 1523 (8th

ed. 2004)). Ownership of the equitable estate is the real ownership; the legal estate

is no more than the “shadow following the equitable estate.” Patty v. Middleton,

82 Tex. 586, 17 S.W. 909, 912 (Tex. 1891); Smith v. Sumeer Homes, Inc., No. 05-

11-01632-CV, 2013 WL 2467252, at *3 (Tex. App.—Dallas June 6, 2013, pet.

denied) (mem. op.); Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 951 (Tex.

App.—Houston [1st Dist.] 1981, no writ). Viewing the evidence in the light most

favorable to the trial court’s finding, as we must, there was more than a scintilla of

evidence to support the finding that Wright intended to make a present gift to

Stroman of equitable title to 105 Sweeney Street despite apparently also indicating

that he would make provision in his will for the legal title in the property to be put

in Stroman’s name. See Troxel, 201 S.W.3d at 299-300 (holding donee received

equitable title to house based on oral gift even if deed did not effectively convey

title to donee).

There was clear testimony that Wright bought the property with the intention

of at some point giving or conveying it to Stroman; Stroman paid Wright on the

property for a couple of years or more; and then Wright told Stroman that was

12

enough, the property was Stroman’s.7 Additionally, there was evidence that after

Wright made that pronouncement, the insurance on the property was switched to

Stroman’s name and Stroman paid the premiums. Further, when mold remediation

work was performed on the house, the insurance company reportedly dealt only

with Stroman and made checks out to Stroman and the contractor.

Any conflict or inconsistency in the evidence created by the mention of

Wright’s will was for the judge to resolve as fact-finder.8 See City of Keller, 168

S.W.3d at 820; Allstar Nat. Ins. Agency v. Johnson, No. 01-09-00322-CV, 2010

WL 2991058, at *5 (Tex. App.—Houston [1st Dist.] July 29, 2010, no pet.) (mem.

op.); cf. Whitten v. Dethloff, 214 S.W.2d 480, 483-85 (Tex. Civ. App.—Fort Worth

1948, no writ) (holding evidence was sufficient to support verdict of oral gift of

real estate, and it was jury’s function to resolve conflicting evidence, where same

property was left in decedent’s will to other parties). We will not substitute our

judgment for that of the trial court. See City of Keller, 168 S.W.3d at 822; Allstar

Nat. Ins., 2010 WL 2991058, at *5.9 Because there was more than a scintilla of

evidence to support the trial court’s present gift finding, we overrule Tautenhahn’s

second issue. See BMC Software, 83 S.W.3d at 795.10

7

The dissent quotes additional trial testimony, some of which was excluded when the

judge sustained an objection to its admissibility.

8

Similarly, the trial court as fact-finder could have simply disbelieved Tautenhahn’s

statements that Wright decided to evict Stroman from the property or that Wright refused to give

Stroman a deed because Wright felt Stroman was unappreciative. See, e.g., White Oak

Operating Co., LLC v. BLR Const. Cos., LLC, 362 S.W.3d 725, 735 (Tex. App.—Houston [14th

Dist.] 2011, no pet.).

9

Tautenhahn testified that Stroman requested a deed to the property while Wright was

still alive; this suggests Stroman viewed it as something of a legal technicality. We further note

that we do not know specifically what the unproduced will said about 105 Sweeney Street; it

may have reflected a gift had already been made and legal title just needed to be transferred. The

will that was admitted to probate does not name 105 Sweeney Street, but simply bequeathed half

of Wright’s estate to Tautenhahn and half to Bozeman.

10

Because Tautenhahn does not challenge the sufficiency of the evidence concerning the

13

Attorney’s Fees

The trial court awarded Stroman attorney’s fees based on his good faith

presentation of an alleged will for probate as permitted under former section 243 of

the Texas Probate Code.11 In his third issue, Tautenhahn contends that the trial

court erred in awarding Stroman attorney’s fees because former section 243 does

not mandate an award of fees under these circumstances, Stroman failed to include

a request for attorney’s fees in his live pleadings, and the issue was not tried by

consent. The availability of attorney’s fees under a particular statute is a question

of law for the court. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.

1999).

Former section 243 permitted but did not require an award of attorney’s fees

to a devisee, legatee, or beneficiary of an alleged will for the good faith defense of

the will or prosecution of an attempt to admit the will to probate, whether or not

the will in question was found to be valid. In re Estate of Washington, 289 S.W.3d

362, 368 (Tex. App.—Texarkana 2009, pet. denied); Zapalac v. Cain, 39 S.W.3d

414, 420 (Tex. App.—Houston [1st Dist.] 2001, no pet.).12 Tautenhahn is

other two elements required to prove a parol gift of real estate, we do not discuss the evidence as

it pertains to those elements.

11

Former section 243 of the Probate Code, which was in effect when this case was filed,

was repealed (along with the entire Probate Code) by the legislature, and former section 243 was

recodified as section 352.052 of the Texas Estates Code without any substantive modification.

See Act of May 26, 2009, 81st Leg., R.S., ch. 680, §§ 1, 10–12, 2009 Tex. Gen. Laws 1512,

1650, 1731–32 (effective Jan. 1, 2014) (current version at Tex. Est. Code § 352.052).

12

As applicable to this appeal, former section 243(b) stated:

When any person designated as a devisee, legatee, or beneficiary in a will or an

alleged will . . . defends it or prosecutes any proceeding in good faith, and with

just cause, for the purpose of having the will or alleged will admitted to probate,

whether successful or not, he may be allowed out of the estate his necessary

expenses and disbursements, including reasonable attorney’s fees, in such

proceedings.

(Emphasis added.)

14

therefore correct that former section 243 did not require the court to award fees

and, therefore, such award must be supported by proper pleadings or tried by

consent. See In re Estate of Gaines, 262 S.W.3d 50, 60 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (“Absent a mandatory statute, a trial court’s jurisdiction

to render a judgment for attorney’s fees must be invoked by pleadings, and a

judgment not supported by pleadings requesting an award of attorney’s fees is a

nullity.”).

We next turn to the question of whether Stroman requested attorney’s fees in

his pleadings. None of Stroman’s live pleadings at the time of trial contained a

request for attorney’s fees. Although he did request fees in his Amended

Application to Set Aside Order Probating Will, filed on September 20, 2012, he

again amended that pleading on November 19, 2012, dropping any mention of,

much less a request for, attorney’s fees. See Scruggs v. Linn, 443 S.W.3d 373, 382

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (explaining that an amended

petition completely replaces and supersedes a prior petition).

At the conclusion of trial when Stroman’s attorney called herself as a

witness on attorney’s fees as a proponent of a will, Tautenhahn’s counsel objected

on the ground that Stroman had no pleadings on file for such relief. The trial judge

then stated that he was going to allow the testimony “just to get it of record” and

would later determine whether Stroman was entitled to attorney’s fees. The judge

allowed Tautenhahn’s counsel whatever time he needed to review Stroman’s

counsel’s fees affidavit and then cross-examine her, which he did.

The judge also invited Stroman’s counsel “to submit . . . case law or

something to clarify what you think is your entitlement” to attorney’s fees.

Stroman thereafter filed his “Authority for Attorney’s Fees,” in which he insisted

that he was entitled to fees as a will proponent under former section 243 and

15

“should be awarded fees.”13 Additionally, Stroman filed a motion for entry of

judgment, seeking entry of an attached proposed judgment that included an award

of attorney’s fees expressly based on former section 243. In the final judgment,

the trial court awarded Stroman attorney’s fees to be paid by the estate of

$57,179.15. A number of courts have held under similar circumstances that a post-

trial, pre-judgment filing with the court that requests attorney’s fees can serve as a

trial amendment satisfying the need for pleading for attorney’s fees unless the

opposing party presents evidence of surprise or the document asserts a new cause

of action. See Nisby v. Dentsply Int’l, Inc., No. 05-14-00814-CV, 2015 WL

2196627, at *1 (Tex. App.—Dallas May 11, 2015, no pet.) (mem. op.) (holding

post-verdict motion to enter final judgment that specifically requested attorney’s

fees was sufficient pleading to support award of fees); Good v. Baker, 339 S.W.3d

260, 267 (Tex. App.—Texarkana 2011, pet. denied) (holding post-trial, pre-

judgment motion for attorney’s fees based on permissive statute was a trial

amendment supporting award of fees); Swate v. Medina Cmty. Hosp., 966 S.W.2d

693, 701-02 (Tex. App.—San Antonio 1998, pet. denied) (holding post-verdict,

pre-judgment motion for fees effectively served as trial amendment supporting

award of fees); Candelier v. Ringstaff, 786 S.W.2d 41, 43-44 (Tex. App.—

Beaumont 1990, writ denied) (holding trial court did not err in awarding fees under

former section 243 based on request for fees in post-trial amended pleading).14

13

Although not labelled as such, the Authority for Attorney’s Fees was in essence a

motion for attorney’s fees. Cf. Good v. Baker, 339 S.W.3d 260, 267 & n.9 (Tex. App.—

Texarkana 2011, pet. denied) (holding motion for attorney’s fees filed three months after jury

verdict was a claim for affirmative relief and thus constituted a written pleading supporting

attorney’s fees award). In determining whether a filing is an affirmative claim for relief, we look

to the facts alleged and not the title or the form of the prayer for relief. See, e.g., id.

14

Tautenhahn cites our prior unpublished opinion in Stewart A. Feldman & Associates,

L.L.P. v. Industrial Photographic Supply, Inc., in support of his position that Stroman did not

properly plead for attorney’s fees. No. 14-01-00249-CV, 2002 WL 31042586 (Tex. App.—

Houston [14th Dist.] Sept. 12, 2002, no pet.) (mem. op., not designated for publication). To

16

In the present case, even though his live pleadings at the time of trial did not

contain such a request, Stroman had requested attorney’s fees in previous

pleadings, he requested and put on evidence regarding attorney’s fees at the

conclusion of trial, and he filed his Authority for Attorney’s Fees and motion for

entry of judgment prior to the entry of final judgment. Tautenhahn does not argue

surprise on appeal or cite to any evidence suggesting that he was surprised by such

a request. In fact, the trial court gave Tautenhahn an opportunity to review

Stroman’s counsel’s affidavit and cross-examine her on the issue at the end of the

trial. Under these specific circumstances, we hold that the trial court’s award of

attorney’s fees was supported by pleadings. Accordingly, we overrule

Tautenhahn’s third issue.

Having overruled each of Tautenhahn’s issues, we affirm the trial court’s

judgment.

/s/ Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J.,

dissenting).

begin with, as a pre-2003 unpublished opinion, Stewart A. Feldman & Associates has no

precedential value. See Tex. R. App. P. 47.7(b); Alcala–Garcia v. City of La Marque, No. 14–

12–00175, 2012 WL 5378118, at *7 (Tex. App.—Houston [14th Dist.] Nov. 1, 2012, no pet.)

(mem. op.). Moreover, the facts in that case are readily distinguishable from the present

circumstances because the motion at issue in Stewart A. Feldman & Associates “set[] out no facts

or legal basis to support an award of attorney’s fees,” whereas Stroman’s Authority for

Attorney’s Fees discusses both facts and law in some detail. 2002 WL 31042586, at *6-7.

Additionally, the court in Stewart A. Feldman & Associates noted that the motion therein was not

filed until “long after” the trial court had determined the issues in the case. Id. at *7. Here, the

trial court had expressly reserved a ruling regarding attorney’s fees and invited the filing of

additional material prior to its final ruling.

17