Affirmed and Memorandum Opinion filed March 14, 2013.

In The

Fourteenth Court of Appeals 

NO. 14-12-00516-CV

IN THE MATTER OF THE ESTATE OF PATTY ANN SCHMIDT 

RICHARDSON, A/K/A PATTY S. RICHARDSON, DECEASED

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Cause No. 394,824-401

M E M O R A N D U M O P I N I O N

In this declaratory-judgment action, appellant Stilwell Retirement Residence

challenges the trial court’s denial of its request for an award of attorneys’ fees. We 

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Stilwell Retirement Residence (“Stilwell”) was named as a remainder 

beneficiary in the testamentary trust of the decedent, Patty Ann Schmidt 
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Richardson. Richardson died in 2010, and Stilwell filed a petition in the probate 

court to ask for a declaration that the trust would terminate in 2015, five years after 

Richardson’s death. After the trustee filed a general denial, Stilwell filed a motion 

for traditional summary judgment in which it asked the trial court to make the 

requested declaration and award Stilwell attorneys’ fees of $27,975 for work 

performed through the date of judgment, together with additional attorneys’ fees of 

$49,000 in the event that the trustee, on behalf of the estate and the trust, 

unsuccessfully appealed the judgment. The trustee did not file a response to the 

motion. 

At the summary-judgment hearing, the trustee conceded that the trust would 

terminate five years from Richardson’s death and opposed the judgment only on 

the issue of attorneys’ fees. The trustee argued that Stilwell was not entitled to the 

fees sought in connection with an uncontested matter. In the ensuing discussion, 

the trial court stated, “I don’t see how we can award attorney fees because this trust 

may be exhausted before it’s terminated.” In addition, the trial court stated, “I 

think we are prohibited from using the trust assets to pay the remainder

beneficiaries’ legal obligation of attorney[s’] fees.” 

The trial court signed a final judgment in which it declared that the trust 

would terminate on January 17, 2015 and denied Stilwell’s request for attorneys’ 

fees. No findings of fact and conclusions of law were requested or filed. In the 

sole issue presented, Stilwell contends that the trial court abused its discretion by 

failing to award Stilwell attorneys’ fees. 

II. ANALYSIS

In a declaratory-judgment action, the trial court may award “reasonable and 

necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE 
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ANN. § 37.009 (West 2008). Identifying the amount of attorneys’ fees that are 

“reasonable and necessary” presents a question of fact, but determining the amount 

of those fees that it is “equitable and just” to award is a question of law for the trial 

court’s sound discretion. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161–

62 (Tex. 2004). It is within trial court’s discretion to conclude that it is “not 

equitable or just to award even reasonable and necessary fees.” Bocquet v. 

Herring, 972 S.W.2d 19, 21 (Tex. 1998). Whether it is equitable and just to make 

a reduced award or none at all “is not a fact question because the determination is 

not susceptible to direct proof but is rather a matter of fairness in light of all the 

circumstances.” Ridge Oil Co., 148 S.W.3d at 162. We will not reverse the trial 

court’s denial of attorneys’ fees unless the complaining party shows a clear abuse 

of discretion. Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 

1997). The trial court abuses its discretion if it rules arbitrarily, unreasonably, 

without regard to guiding legal principles, or without supporting evidence. In re 

Lesikar, 285 S.W.3d 577, 584 (Tex. App.—Houston [14th Dist.] 2009, orig. 

proceeding). 

On appeal, Stilwell asserts that a trial court abuses its discretion by refusing 

to award attorneys’ fees that are supported by an uncontroverted affidavit 

addressing the reasonableness and necessity of the attorneys’ fees incurred. In 

support of this position, Stilwell relies on Hunsucker v. Fustok, 238 S.W.3d 421 

(Tex. App.—Houston [1st Dist.] 2007, no pet.). In that case, the First Court of 

Appeals addressed the right of a health-care provider under section 13.01(e) of 

former article 4590i to recover its reasonable and necessary attorneys’ fees if a 

health-care liability claim against it is dismissed based on the plaintiff’s failure to 

file an expert report. Id. at 423–24. The terms of the statute under which that case 

was decided included a provision making an award of such attorneys’ fees to the 
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health-care provider mandatory. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, 

§ 1, sec. 13.01, 1995 TEX. GEN. LAWS 985, 986, repealed and recodified as 

amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 2003 

TEX. GEN. LAWS 847, 886, 884 (current version at TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.351 (West 2011)). This is not a health-care liability claim, however, 

and neither the case cited by Stilwell nor the statute discussed in Hunsucker apply 

here. 

Unlike an award of attorneys’ fees in a health-care liability claim, an award 

of attorneys’ fees in a declaratory-judgment action is discretionary. A party is not 

entitled to such an award as a matter of law simply because the fees incurred were 

reasonable and necessary; the award also must be equitable and just. Bocquet, 972 

S.W.2d at 21. Here, the trial court implicitly concluded that justice and equity did 

not require any attorneys’ fees to be awarded in this case, and Stilwell has 

presented no argument challenging that determination. Moreover, the record does 

not indicate that the trial court’s ruling was arbitrary or unreasonable. See United 

Interests, Inc. v. Brewington, Inc., 729 S.W.2d 897, 906 (Tex. App.—Houston 

[14th Dist.] 1987, writ ref’d n.r.e.) (recognizing that when evaluating a complaint 

that the trial court abused its discretion in failing to award a party attorneys’ fees in 

a declaratory-judgment action, we may consider statements that the trial court 

made from the bench). At the hearing in connection with Stilwell’s claim for 

attorneys’ fees, the trial court stated that one trust provision prohibits the use of 

trust assets to pay the remainder beneficiaries’ legal fees. Stilwell describes this as 

a “spendthrift provision” and asserts that it has no bearing on the question of 

whether attorneys’ fees should be awarded in a declaratory-judgment action. We 

do not address this argument, because the trial court also pointed out that the trust 

may be exhausted before it is terminated. Because Stilwell ultimately would 
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receive nothing if the trust assets were depleted before it became entitled to a 

distribution, the trial court properly could conclude that justice and equity did not 

require trust funds to be diverted from the trust’s current beneficiaries to pay

attorneys’ fees that Stilwell incurred in obtaining a declaration from which it may 

never benefit. See id. (finding no abuse of discretion where trial court’s statements 

indicated that it “recognized that [the parties] had legitimate rights to pursue and, 

therefore, each should bear its own attorney’s fees”). 

Because the record does not indicate that the ruling was arbitrary or 

unreasonable, we conclude that the trial court did not abuse its discretion. See 

Ridge Oil Co., 148 S.W.3d at 163. We accordingly overrule the sole issue 

presented and affirm the trial court’s judgment.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Jamison, and McCally.