## In the Court of Appeals Second Appellate District of Tex as

at Fort Wo rth

___________________________ No. 02

- 23

- 00098

- CV

___________________________

On Appeal from the 271st District Court

Wise County, Texas Trial Court No. CV21

- 07

- 515
Before Bassel, Wallach, and Walker, JJ. Memorandum Opinio n by Justice Walker 

### H OWARD 

### R OSENSTEIN 

### , Appellant

V



### . P ATRICIA 

### C ONDRON 

### , Appellee2 MEMORANDUM OPINION Appellant Howard Rosen s tein appeals from the trial court ’ s final judgment for Appellee Patricia Condron, which ordered that title to certain real property located in Wise County had vested in Patricia

. Ros enstein cl a imed that he had been deeded the
p roperty by Patricia ’ s now

- de cease d husban d , Jimmy Condron, in exchange for
Rosenstein ’ s representing Jimmy in a criminal matter in 2009

. After a bench trial, the
trial court found , among other things, that the deed was i n tended as a security
instrum ent used to secure Jimmy ’ s payment for th ose legal services rather than as a
conveya n ce to Rosenstein

. Rosenstein raises four issues on appeal: (1) the evidence was insufficient to support the trial court ’ s finding that the de e d was int ended to be a security instru ment, (2) the evidence was insufficient to support the attorney ’ s

- fee

awar d, (3) the trial court erred w hen it concluded that Patricia ’ s claims were not barred by the statute of limitations, and (4) the trial court err ed wh e n it concluded that Patricia had standing to bring her suit to qu iet title

. We will rev erse t he trial court ’ s award of attorney ’ s fees , r emand on that issue only , and affirm the remainder of the
trial court ’ s judgment.
I. B ACKGROUND
A. F A CTUAL B A CKGROU ND In 2009, Jim my hired Rosen stein to represent him in a felony sexual assault

c ase. In t he engagement contract (Contract) , Jimmy ag ree d to pay Rosenstein a min imum $22,500 nonrefundable retainer for pretrial re presentation

. But the3

C ontract also provid ed that, “ [ d ] ue to the fact t hat [Jimmy di d] not have money for a
retainer , the fee for such representation and retainer [was] agre ed to consist of a
transfer of [Jimmy ’ s] property , ” described as 4. 5 ac res in Wise Count y ( Pro perty )

. 1
The C ontract c ontinu ed : B y virtue of t his contract for legal services and property transfer , client hereb y (Jimmy Condron

) conveys to Howar d Rosenstein all of his interest in the [

P roperty] for conside ration of attorney re presen tation as of 8/25/09 on Jimmy Condron ’ s s exual as sault case.

. . . . [ Jimmy] acknowledges he has ca refully read this agreement and property transfer and fully agrees to abid e by it and fully agrees to sign any additional docum ents to effe ctuate the tra n sfer. [Jim my] agrees to let attorney sig n clie nt ’ s name to an y do cument to eff ectuate the transfer of the [Property] . For the pendency of the case, [Rosenstein] agrees to let [Jimmy] continue to live in his mobile home and pay on the [P] rope rty the month ly mortgage.
The Contract further pro vided th at “ th is representa tion and agreement for cash and/or property ” did not include any expenses ( e.g. for travel , court co sts, experts ) or any trial or po st trial representa ti on. Ji mmy would be re s ponsible for paying such expenses as they were incurre d and fo r payi ng an additio nal $30,000 for Rosenst ein to represent him at a trial. Jimmy ’ s felony case was dismissed on September 21, 2009, four weeks after he
hire d Ros enstein , though Rose nstein did not inform Jimmy that the case had been

1 Jimmy had b ought the P rope r ty in 2003 for $ 60,000 using a loan serviced at all relevant times by Wells Fargo

.4

dismissed unt

il O ct ob er 2

. O n September 30, 2009, Jim my signe d a special warranty deed granting the Property to Rosenstein (De ed)

. That same day, Jimmy (as lessee)
and Rosenstein (as l essor ) also entered into a five

- year lease agreement f or the Prop ert y (Lease)

. The Lease a utomatically renewed each year for a new one

- year term if not terminated by either par ty. Jimmy agreed to pay Rosenstein $643.63 per month , which co uld be ad justed “ from time

- to

- time to ensure that the rent payable b y [Jimmy was] sufficient to ful ly ser vi ce t he loan owed ” by Jimmy on the Pro perty
. The Deed
was not recorded at th at time. Jimmy met Patric ia in 20 10 , and they married in 2015. Jimmy and Patricia
claimed the Prop erty as their homestea d and shared exp enses associa ted with the
P roperty , and Ji mmy made the mortgage payments directly to Wells Far go . How ever, Jimmy also

— at least during the years of 2009 an d 2010

— reported to R osenstein that
the mortgage p ayments had been made by mailing Ro senstein copies of the mortgage checks Jimmy had pa id to We lls Fargo and copies of his m onthly mortgage statements from the bank

. Jimmy died in Jun e 2020 and his will was admitted to probate as a muniment of
title , wit h Patricia as his sol e ben eficiary. 2 Patricia then paid off the remaining $40, 000

on the We ll s Fargo loan and obtained a release o f that l ien. She also had the

man ufactured home on the P rop erty titled in he r nam e and declare d as real property.

2 Jimmy ’ s will provided that Patricia woul d receive his entire estate upon his death, to include all of his “ r ea l , personal[,] or mi xed ” property.5

On April 15, 20 21 , Rosen stein finally recorded t he Dee d.
At trial , Patr ic ia testi fied that s he did n ot know that Rosenstein exi sted or about
his claim to the Proper ty u n til he recorded the Deed in 2 021

. She exp lained that, after learning of Rosenstein ’ s claim to the Prop erty, she searched through Jimmy ’ s personal
records but did not find any evi dence of the De ed , L ease, or any other a greement between Rosen stein and Jimmy.
Acc ording to Rosenstein, his legal services arrangement with Jimmy was
pre mised on the unde rstand ing that Jimmy ’ s 2009 felony case would be Rosenstein ’ s highest priority to en sure i t s speedy resolution

. Rosenstein testified that , after the
De ed and Lease were signed in 2009, he had never been t o the Property or perform ed
any actions i n his role as purpo rted landlord under the Lease. He admitted that he
had nev er paid ad valor e m tax es or obt ained i nsur ance for the Prop erty and had never reported any rental income or otherwise claimed the P roperty for tax p urpo ses. It was not until after Jimmy died that Rosenstein learned that J immy and Patricia had
married. Rosenst ein asserte d that J immy had n ot paid “ a di me ” for his legal representation and that he had never advanced Jimmy m oney , agreed to give the property back to Jimmy , or given Jimmy a repur chase option. He explained th at Jimmy had ask ed him not to record the Deed in 2009 beca u se doing so might have

“ mess[ed] up [Jimmy ’ s] mor tgage veteran VA thing that [ he ] g ot with Wells Fargo or whatever the name of that company is. ”6 B. P ROCEDURAL B ACKGROUND Patricia sued Rosenstein fo r declaratory judgment and as serted causes of acti on for p retended sale of a homestead, violation of the T DTPA, innocent gr an tee for value without notice, unjust enrichment, and estoppel

. S he requ ested th e trial court to quiet title in her nam e and to declar e the Deed void. Rosenstein answered, raising
affirm at ive def enses of statute of limitations, l aches, and lack of standing. He did not
file a counterclaim. After a bench trial, the t rial court decla r ed that the D eed was “ a secu rit y in strument securing payment for ” Rosenstein ’ s legal servi ce s rather t han a co nveyance and that th e Prop erty was vested in fee simple absolute in Patri cia , and the trial court

awar ded her $20,000 in attorney ’ s fees. Rosen stein filed a motion for ne w trial (which was overruled by op eration of law) and request ed findings o f f act an d conclusions of
law.
Th e tri al court issued its findings of fact and conclusions of law , which
included th e following : Find ings of Fact

• Patricia lived at the Pr operty at all times after she married Jim my in 2015 , and she and Jimmy tre ated it as t heir h om est ead;

• “ Duri ng their marriage, Patricia and Jimmy paid the mortgage, ad valorem taxes, and insu rance on the Property ” and “ made valuable improvements to th e Property ” ;7

• “ Record title to the Property rem ain ed in Jimmy ’ s name at the time of his death ” ;

• “ In or about September 2020, Patricia paid $39,997.14 to pay off and discharg e the mortgage on the Property ” ;

• “ Patricia was the sol e beneficia ry a nd devisee named ” in Jimmy ’ s will;

• “ Patricia paid off the mortgage on the Property in reliance on the f ac t [that Jimmy ’ s will] had been admitted to probate an d on a title search . . . c onfirming no cloud on her title existed of record ” ;

• “ P atricia had no knowledge of R os enstein ’ s involvement with Jim my until the recorded Deed came to her atte ntion ” ;

• Rosen s te in “ exhibit ed no indicia of ownership of the Property ” such as paying ad valor em taxes or complying with landlord requirements under th e Texas Property Code ;

• If the Deed had serv ed as a conveyance , Rosen stein would have been unjustly enri ch ed by Patric ia ’ s mor tg age payoff;

• “ It would be un conscionable for Rosenstein t o re ceive the Property as a fee for the legal services he p rovided Jimmy ” ;

• The Deed was intended to be a security inst r u ment to secu re payment for Rosenstein ’ s legal services ;

• “ Th e Deed w as intended to be a mortgage not a conveyance ” ; and

• The attorney ’ s fee s awarded to Patricia are reasonable and necessary purs uant to Chapter 37 of the Texas Ci vil Practice and Remedies C ode

. Conclus ions of Law

• “ Upon probate of [Jim my ’ s will] , titl e to t he Property vested in Patricia in fee simply absolute ” ;8

• Patri cia ’ s c auses of action accrued on April 15, 2021 , and her claims were not barred by limitations ;

• Patricia had standing to as sert her clai ms ; and

• Patricia is not Jimmy ’ s heir under Sectio n 13.0 01 (b) of the Property Code

. II. DISC USSION
A. L EGAL AND F ACTUAL E VID ENTIARY S UFFICIENCY I SSUES In his fi rst two iss ues, Rosen stein argues that the evidence was legally and factually insufficient to support the tria l court ’ s f indings that (1) t he Dee d was intended to be a s ec urity instrument and (2) Patric ia ’ s attorney ’ s fees w ere rea sonable and necessary.
1. Standard s of Review A trial court’s findings of fact have the same force and dignity as a jury’s

answ ers to jury questions

. Anderson v . City o f Seven Points , 806 S.W.2d 791, 794 (Te x. 1991). As with jury findings, a trial court’s fact

- fi nding s on disputed issues are not
conclusive , and w

hen

— as her e
— the appella te record contains a reporter’s record, an

a ppellant may challenge th ose findi ngs fo r evidentiary sufficiency. Catalina v. B lasdel , 881 S.W.2d 295, 297 (Tex. 1994); Super Ventures, Inc. v. Chaudhry , 501 S.W.3d 121, 126 (Tex. App.

— Fort Worth 2 016, no pet.)

. W e review the sufficiency of the evidence supporting challenged findings us ing th e same standards that we apply to jury
fi ndings. Catalina , 881 S.W.2d at 297.9

We may sustain a legal

- sufficiency challenge

— that is, a no

- evidence challenge

— only when (1) the record bears no evidence of a vital fac t, (2) the r ules of
law or of evid ence b ar the court from giving weight to the on ly evidence offered to prove a vital fact, (3) the eviden ce off ered to prove a vital fact is no more than a mere
scint illa, or (4) the evidence establishes conclusively the op posite of a vital fact. Shields
L td. P’ sh ip v. Bradberry , 526 S.W.3d 471, 480 (T ex. 2017 ) ; see also Ford Motor Co. v.
Castillo , 444 S.W.3 d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v.
Marti nez , 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether
l egally s ufficient evidence supports the finding under review, we must consider
evidence favorable to the findi ng if a reasonable factfinder could and must disregard contrary evid ence unless a reasonable factfinder could no t
. Cent. Ready Mix Concrete
Co. v . Isla s , 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson , 168 S.W.3d 802, 807, 827 (Tex. 2005)

. We indulge “ every reasonable inference deducible from the
evidence ” in support of the challenged finding. Gunn v. McCoy , 554 S.W.3d 645 , 658 (Tex. 2 018).
Wh en reviewing an assertion that the evid ence is factually insufficient to support a finding, we s et asi de the finding only if, after considering and weighing all the perti nent record evidence, we determine tha t the credible evidence supporting the
f inding i s so weak, or so contrary to the overwh elming weight of all the evidence, that
the finding shoul d be s et aside and a new trial ordered. Pool v. Ford Motor C o. ,10

715 S.W.2 d 629, 635 (Tex. 1986) (o p. on reh’g); Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) ; Garza v. Alviar , 395 S.W.2d 821, 823 (T ex. 1965). Both direct and circumstantial evidence may be use d to establish any material
fact. Ford Motor Co. v. Ri

dgway , 135 S. W.3d 598, 601 (Tex. 2004). A fact is establ ished by circumstantial evidence w hen it c an be fairly and reasonably inferred fr om other
fact s proved in the case. Russell v. Russell , 8 65 S.W .2d 929, 933 (Tex. 1993). When conducting a factual

- su fficiency rev iew, a court of appe als must not merely subs titute its judgment for that of th e fact fi nder

. Golden Eagle Archery , Inc. v. Ja ckson , 116 S.W.3d 757, 761 (Tex. 2003)

. The factfinder is the sole judge of the witness es’ cr edibility and the weight to be given to their testimony

. I d

. Furt her, i f the evidence is factually s ufficient , t hen it i s necessarily legally
sufficient and we need not also analy ze for legal sufficiency. Citizens Nat'l Bank v. Allen Rae Inv

s, I nc. , 142 S.W.3d 459, 485 (Tex. App.

— Fort Worth 2004, no pet.) ; s ee K adow v. MAA, Waterma rk , No. 02

- 22

- 00038

- CV, 2022 WL 17 841131 , at *3 (Tex. App.

— Fort Worth Dec. 22, 20 22, no pet.) (mem. op.).
2. Trial Court ’ s Finding That Deed Was a Security In str u ment Rosenstein f

irst argues that the evidence was legal ly an d factua lly insufficient to support the trial court ’ s finding th a t the Deed was intended to be a security
i nstrument to secure payment for Rosenstein ’ s legal services rather than a con veyance of the Property to him. We disagree.11

First, Rosenstein di d not challenge every ground and fi nding upon which the judgment could st and. “ [ I ] f an independent ground may fu lly support the
comp lain ed

- of ruli ng or judgment, but the appellant assi g n s no error to that independent ground, then we ‘ must accept the validit y of that unc hallenged independen t g round and thus any error in the g ro unds challenged on appeal is
harmless be cause the unchallenged independent ground fully supports the complained

- of ruling or judgment. ’ ” S.W. ex rel . A.W. v. Arlington Ind. Sch . Dist. , 435
S.W.3d 4 14, 419 (Tex. App.

— F o rt Worth 2014, no pet.) (cleaned u p ) (quoting Britton v. Tex. Dep ’

t of Crim

. Just

. , 95 S.W.3d 676, 681 (Tex. Ap p.

— Houston [1st Dist.] 2002, no pet.)

. “When find ings of fact are se nt by the trial court they must form the basis
of the judgment upon all g rounds of recovery and of defense emb r aced therein.”
T ex . R. C iv . P. 299. “ [

I] f the trial court ’ s findings of fact are not challenged by a point of error on appeal, they are binding upon the appellate court.” Trammell v. Trammell , 48 5 S.W.3d 571, 576 (T ex. App.

— Houston [1st Dist.] 2016, no pet.)

. Apart from her claim that the Deed was intended as a security instrument rather than a conveyance, Patricia ple aded various a lternative grounds upon which she argued th at the Deed was void and title to the Property belonged in her name. These
g r ound s included that (1) she was an innoc ent gr an tee for value without notice
pur suant to Se ction 13.001 of the Texas Property Code ; (2) it would be unjust
enrichment for R osenstein to receive the property in exchange for the limited legal services he prov

i ded ; and (3) he was estopped from cla imi ng ownership of the12

Property bec ause such would be unconscionable considering that he concealed the
Deed and Patricia pa id off the mortgage and ob tained title to the P roperty without
notice of the Deed

. And the tri a l court issued fin dings of f act and conclusions of law
support ing each of th ese alternative ground s . However , Rosenstein does not assign

error t o any of th e se alternative grounds or findings, c omplaini ng o nly t hat the trial

court err ed in finding that th e Deed was a securi ty instrument

. Because Rosenstein has not complained on appeal of the alternative grounds and findings that could support the judgment, we must affirm the t rial court ’ s judgment. 3 See i d

. Further, even if this is su e had been a d equatel y raised by Rosenst ein , the
evidence was sufficient to support the trial co urt ’ s finding that the Deed was a security
in strument
.

“ A transfer of title that is absolute on its face may nonetheless be shown to
have been intend ed as a mortg age given to se c u re a debt

. ” Alv arado v. Alvarado , No. 1 3

- 00

- 690

- CV, 2002 WL 1072067, at *4 (Tex. App.

— Corpus Christi

– Edinburg

3 Rosenstein makes a cursory and implicit argument

— withou t any legal support

— that , because the trial court ’ s written judgment re f erence d only Patricia ’ s pretended sale claim , that her alternative grounds could not sup p or t the judgment because she “ did not file a cross

- appeal challenging these issues. ” T his argument fails because findings made within the judgment are supplanted by any written findings of fa ct filed separ a tely by the trial court. Tex. R. C iv. P. 299a ( “ Fi n dings of fact must not be recited in a judgment. If there is a conf lict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for ap pellate pu r po s es. ” ) ; see Land v. Land , 561 S.W.3d 624, 632 n. 3 ( Tex. App.

— Houston [14th Dist.] 2018, pet . denied). Thus, here we must look to the trial court ’ s sep ar ately

- fi l ed findings of fac t

— which do address Patricia ’ s alternative g rounds

— in making our decision

.13

May 30, 2002, pet. denied) (citing Bantuelle v. Williams , 667 S.W.2d 810, 81 5

– 16 (Tex. App.

— Dallas 1983, writ ref ’ d n.r.e.) ; see Johnson v. Che r r y , 726 S. W.2d 4, 7 (Tex. 1987) ( “ Whe n there is a finding supported by some probative evidence that a disputed transaction, although written as a deed, is actually a mortgage, the law will i mpute the
existence of an enforceable debt, thereb y creating the d e btor/cred itor relationship
necessary to every mor tgage. ” ) (emphasis added)

. “ The circumstances preceding, surrounding, and sub sequ ent to the transaction may all be viewed in determining
whethe r a transaction was t ruly intende d as a fee si mple transfer, o r mere ly a s a lo an

or a mort gage. ” RBS Mortg., LLC v. Gonzalez , No. 04

- 11

- 00681

- CV, 2013 WL 749730, at *3 (Tex. App.

— San Antoni o Feb. 27, 2013, n o pet.) (mem. op.) ; see Bantuelle , 667 S.W.2d at 816. The issue of whether a n in strument was intended to be a
deed or a mortgage is a qu estion of fact. Johnson , 726 S.W.2d at 6. Here, th e C ontract provided that Jimmy would pay a nonrefundable $2 2,500
retainer for Rosenstein ’ s pretrial representation , which

— because Jimmy did not th en have the c ash to pay the r e tainer

— wo uld “ c onsist of

” a transfer of the Property from Jimmy to Rosenstein. This fee did not cover any expenses or trial re presentation , the
latter of which would have required Jimmy to front at least another $ 30,000

. Though Jimmy exe cuted the Deed a n d t he Lease , Jimmy never paid any rent d i rectly to
Rosenstei n. The n, for more than a decade, Rosenst ein did nothing to indicate that the Property had been conveyed to him. He did not record the Deed , visit the P roperty,
pay the taxes, in sure the propert y in his name, perform his landlord dut ies , or claim14

the Prope rty or rental inc ome therefrom for tax purposes. Instead, it was Jimmy and
Patricia who acted as the owners of the P roperty . They lived on the Property , pa id the taxes, pa id th e mortgage and o t her expenses, improve d it, insure d it, and claim ed
it as their homest ead.
From th is evidenc e , the trial court could have rea sonably found that the parties
did not intend for Jimmy to use his homestead as payment for $22,500 worth of (ex clusively pretri a l) legal services but that they instead intended for the De ed to

sec ure payment fo r those services. In other words, this finding was supported by

some probative evidence that was not so weak , or so contr ary to the overwhelming weight of all the evidence

. Johnson , 726 S.W.2d at 7 ; Pool , 715 S.W.2d at 635

. For these reasons, we overrule Rosenstein ’ s first issu e.

3. Trial Court ’ s Award of Attorney ’ s Fees In his second issue, Rosenstein arg ues that the evidence was legally and factually insufficient to s u pport the trial court ’ s award of Pat ricia ’ s attorney ’ s fe es . Specifically , he argues that Patricia did no t present suf ficient evidence of her

atto rney ’ s hourly rate, the total time spent on the case , an d the specific services
rendered , and that she did n o t appropr iately segregate her fees between those that
were recoverable and nonrecoverable

. We agree that Patricia ’ s attorney ’ s

- fees
evidence was insufficient. The only eviden ce submitted to the trial court on the issue of Patricia ’ s attorney ’ s fees cam e from her attorney ’ s oral testimony

— he did not supply a written15

affida vit or billing record s . He testi fied as to his qualifications and experience as an attorney and stated t ha t h e charge s $300 per hour for his services

. As to the particular
services pe r f

ormed and hours expended , Pat ricia ’ s attorney testified as follows:
I had to interview the case. I had to brief out the law that was relevant to it. I had to pr epare the Pla intiff ’ s pleadings in this case. I think we ’ re up to our second amended origin a l p etition.
I ’ ve conducted discovery in this case. I have represented her i n the evi ction suit that was filed and then dismiss ed. I represented her in a 91a mot ion in this c ase, which was denied. And I repr esented her

- - prep ared a response a nd repres e n ted her in a

- - in the Defendant ’ s motion for summary judgment which was also denied.
I have taken time to prepare for the trial of this case. I ’ ve arranged for the various e xhibits, and I have expended num e rous

– a number of h ours. I ’ m

– right now I ’ v e had 2 0

– approximately 21.5 hours not counting today and if we go on until t omorrow. But as of the 22nd of September, my fees were a little over $16,000, and dep ending on how this trial goes, my fees will pr obabl y exceed $20,000.
“When a claimant wi s h es to obtain attorney ’ s fees from the opposing party, the
claimant must prove that the requested fees are both reasonable and necessary.”
Rohrmoos Vent

ure v. UTSW D VA Healthcare, LLP , 578 S.W.3d 46 9, 489 (Tex. 2019).
Both the reasonableness and the nec e s sity of a fee are fact questions. Id

. The lodestar method of fe e calculation applies “to any situation in which an objective calculation of reasonabl e hours worke d times a reasonable rate can be employed.” Id

. at 498. With the lodestar method, “the f a ct finder ’ s starting point for calculating an attorney ’ s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, an d the fee cla imant bears the burden of16

providi ng sufficient evidence on both counts.” Id

. Sufficient e vidence of a reasonable and necessary fee “includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the serv ices were performed , (4) the reasonable amount of time required to perform t h e services, and (5) the reasonable hourly rate for each person per forming such services.” Id

. Contemporaneous billing records are not strictly require d to prove th e reasonableness and necessity of requested fees but are strongly encouraged. Id . at 502

. Generalities about tasks performed do not provide sufficient info rmation for the fact finder “to meaningfully review whether the tasks and hours were re asonable and necessary under
the lodestar met hod.” Long v. Griffin , 442 S.W.3d 253, 255 (Tex. 2014) ; s ee City of
Laredo v. Montano , 414 S.W.3d 731, 736

– 37 (Tex. 2013) (r eversing attorney ’ s

- fees
award when the attorney testified to the time expended and th e hourly rate but failed

to provide evidence of the time devoted to specific tasks ). W hen the eviden c e is not
sufficient to make a lo destar calculation, we must reverse and remand for the trial

court to d etermine t he appropriate amount of attorney ’ s f ees . El Apple I, L td. v.
Olivas , 370 S.W.3d 757, 764 (Tex. 2012).
Patricia ’ s attorney offered only gene r a lities as to broad categories of tasks that he performed and provide d almost no explanation as to the amount of time spent on

eac h o f those ta sks. See Long , 442 S.W.3d at 255 (reversing attorney ’ s

- fee s award when the attorney ’ s affidavit spoke generally a bout the ta sks performed and the
number of hours spent on those tasks). The only indication given as to the specific17

time spent on Pat ricia ’ s case was that he had expended 21 .5 hours p reparing for and presenting her case at trial. No evidence was sup pl i e d concerning time expen ded on the other pre trial tasks that he testified to. For these reasons, we sustain Rosenstein ’ s second issue.

B. S TA TUTE O F L IMITATIONS
In his third issue, Rosen stein co ntends that the trial court erred in concluding
that Pat r i cia ’ s pretended

- sale claim w as not barred by the applic able statute of
limitation s . He argues that the law is clear that “ a par ty to a deed has four years from
the date of execution o f the d eed to seek to cancel it as an improp er or pretended sale
of a h o mest ead. ” Thus, in Rosenstein ’ s view, the s tatute of limitations governing
Patricia ’ s claim that the Deed was intended as a sec urity instrum ent began to run in 2009 when Jimmy exe cute d the Deed , thus barring Patrici a from bringing her act ion
in 2021

. W e d isagree because (1) a purported deed that is found to be a mortgage is
void and thus not subject to a statute of limitations , a nd (2) even i f the statu t e of limitations was four years , it did not begin to ru n against Patricia until an actual
controversy e xisted between her and Rosenstein

. A deed that is foun d to be intended as a security instrument is void

. Johnson , 726 S.W.2d at 7 (holding that deed imputed as a mortgage was “ null and void ” ); Wood
v. De Winter

, 280 S.W. 303, 307 (Tex. App.

— Fort Wort h 1926, no writ) ( “ If the instrument was at the time of its execution intended by the parties thereto as a mortgage and security f

or a loan, it was a void instrument as such

. . . . ” ); s ee Tex.18

Const. art. XVI, § 50 (c) ( “ All pretended sales of the homestea d involving any
condition of defeasance shall be void. ” ); Sudderth v. Howard , 560 S.W.2d 511, 516

– 17 (T ex. App.

—

Amarillo 1977, wri t ref

’ d n.r.e. ) ( “ What the constitution declares void

ca nnot be made valid by an agreement between the primary parties

. . . . ” )

. “ [A] n equitable action to remove cloud on title is not subject to limitations if a deed is void or has expired by its own ter ms. ” Ford v. Exxon Mobil Chem. Co. , 235 S.W.3d 615, 618 (Tex. 2007) ; Poag v. Flories , 317 S.W.3d 820, 825 (Tex. App.

— Fort Wor t h 2010, pet

. denied)

. Accordingly, because the D eed here was void, no statute of li mitations appl ied
to Patricia ’ s quiet title action and her pretended

- sale claim w as not thus barred. See
Ford , 235 S.W.3d at 618

. But even if a four

- year limitations pe r i od applied here, it would no t have bar red
Patricia ’ s claim s . “ As a general rule, a cause of action accrues and the statute of limitations begi ns to run when facts come into existence that authorize a party to seek a judicial remedy. ” Provident L ife & A c c . Ins. Co. v. Knott

, 128 S.W.3d 211, 221 (Tex. 2003) ; see Tex. Prop. Code Ann. § 13.002 ( “ An instrument that is properly recorded in the proper county is . . . notic e to all persons of the existence of the instrument. ” ); see also Poag , 317 S.W.3d at 827 ( e xplaining that the recordin g of a deed charged appellant
with notice and commen ced the statute of limitations related to his claims to set asi d e the deed)

. More specific ally, a declar atory judgment action

— like the one brough t by
Patricia

— does not accrue “ until there is an actual controversy between the parties. ”19

In re Estate of Denman , 362 S.W.3d 134, 144 (Tex. App.

— San Antonio 2011, no pet.) ; see Vann v. Ho meown er ’

s A ss ’ n for Woodlan d Park of Georgetown , Inc. , No. 03

- 18

- 00201

- CV, 2018 WL 4140443, at *6 ( Tex. App.

—

Austin Aug. 30, 2018, no pet.) (mem. op.) (collecting cases); c

f. Evans v. Graves , 166 S.W.2d 955, 958 (Tex. App.

— Dallas 1 942,
writ r ef’d w.o.m.) ( “ Though appellant [] m ight h ave been able to maint ain a suit during the life estate to quiet title , yet she was not compelled to do so until a right of
p ossession accrued

. ” ). At the very earliest, a legal controversy arose between Patricia and Rosenstein

on July 13, 2020 , when she fi rst took purported title to the P roper ty via Jimmy ’ s probated will

. B e f

ore that date, she had no legal right to the property and, necessarily, no right to seek a n y related legal remedy. Accordingly , even if a four

- year statute of limitations applied to P at ricia ’ s claim s , she would have been required to file suit only
befor e July 1 4 , 2024

—

which she did. For these reasons, we overrule Rosenstein ’ s third issue.
C. S TANDING In his fourth issue , Rosenstein argues that the tr ia l court erre d in concluding
that Pa tricia had standing to bring her suit. He contends that, because he w as granted
tit le to the Property in 2009 via the Deed, the Property was not part of Jimmy ’ s estate and could not have been devised to Patricia throug h Jimmy ’ s will

. Thus, says
Rosenst ein, Pat ricia did not have a ju sticiable interest in the Property. Ag a i n, we disagree.20

A void d eed cannot pass title. Lighthouse Church of Cloverleaf v. Tex

. Bank , 889 S.W.2d 595, 601 (

Tex. App.

— Houston [ 14th Dist.] 19 94, writ denied) ; see Slaughter

v . Qualls , 162 S.W.2d 671, 674 (Tex. 1942) ( “The rule has long been estab l i shed in this
State that w here a deed is absolutely void, a suit at law in trespass to try title may be
maintained to recover the land w ithout setting the deed aside

. . . . ” ). Further, a beneficiary who has interest in estate property under a probated w i l l has standing to

sue to enforce that interest. Houston v. Ludwick , No. 14

- 09

- 00600

- CV, 2010 WL 4132215, at *4 (Tex. App.

— Houston [14t h Dist.] Oct. 21, 2010, pet. denied ) (mem. op.)

. As we explained above, the Deed was void and , thus, never pass ed ti t l e in the Property to Rosenstein

. Lighthouse Church of Cloverleaf , 889 S.W.2d at 601

. Instead, title passed from Jimmy ’ s estate to his sole benefici ary, Pat ricia, when h is will was probated as a muni ment of title , giving Patricia standing to bring her q u i et

- title claim

. Id

. For these reasons, we overrule Rosenstein ’ s fo urth issue

. III . CONCLUSION Having sustained Rosenstein ’ s second issue that the e vide nce was insuffi cient
to support the t rial court ’ s award of attorney ’ s fees, we reverse th at award a n d remand
this case for a determi nation of the reasonable and necessary attor ney ’ s fee s. See El Apple I, Ltd. , 370 S.W.3d at 764. Having over ruled issues one, three, and four , we affi rm th e remaind er of the trial court ’ s judgment.21 /s/ Br ian Walker
Brian Walker Justic e Delivered: January 11 , 202 4