Opinion issued July 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-02-00114-CV

———————————

HOWARD STERN AS EXECUTOR OF THE ESTATE OF VICKIE LYNN 

MARSHALL, Appellant

V.

ELAINE MARSHALL AS INDEPENDENT EXECUTRIX OF THE ESTATE 

OF E. PIERCE MARSHALL, ROBERT MCINTYRE AS TEMPORARY 

ADMINISTRATOR OF THE ESTATE OF J. HOWARD MARSHALL, II,

APPLICATION TO APPOINT ELAINE MARSHALL PENDING, IV

ELAINE MARSHALL AS TRUSTEE OF THE MARSHALL 

GRANDCHILDREN’S TRUST FOR THE BENEFIT OF E. PIERCE 

MARSHALL, JR., ELAINE MARSHALL AS TRUSTEE OF THE 

MARSHALL GRANDCHILDREN’S TRUST FOR THE BENEFIT OF 

PRESTON MARSHALL, E. PIERCE MARSHALL, JR., ELAINE 

MARSHALL, AND PRESTON MARSHALL AS TRUSTEES OF THE 

MARSHALL PETROLEUM, INC. STOCK HOLDING TRUST, E. PIERCE 

MARSHALL, JR., ELAINE MARSHALL, AND PRESTON MARSHALL AS 

TRUSTEES OF THE MARSHALL HERITAGE FOUNDATION AND THE 

MARSHALL LEGACY FOUNDATION, ELAINE MARSHALL AS 

TRUSTEE OF THE BETTYE B. MARSHALL LIVING TRUST, ELAINE 

MARSHALL AS TRUSTEE OF THE J. HOWARD MARSHALL, II, 

MARITAL TRUST NUMBER TWO, ELAINE MARSHALL AS TRUSTEE 
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OF THE E. PIERCE MARSHALL FAMILY TRUST CREATED UNDER 

THE BETTYE B. MARSHALL LIVING TRUST INDENTURE DATED 

OCTOBER 30, 1990, ELAINE MARSHALL INDIVIDUALLY

ELAINE MARSHALL AS TRUSTEE OF THE MARSHALL

GRANDCHILDREN’S TRUST FOR THE BENEFIT OF E. PIERCE 

MARSHALL, JR., ELAINE MARSHALL AS TRUSTEE OF THE 

MARSHALL GRANDCHILDREN’ TRUST FOR THE BENEFIT OF 

PRESTON MARSHALL, E. PIERCE MARSHALL, JR., PRESTON 

MARSHALL, TROF, INC., FINLEY HILLIARD, ELAINE MARSHALL 

AND STEPHEN COOK AS TRUSTEES OF THE J. HOWARD 

MARSHALL, II LIVING TRUST, E. PIERCE MARSHALL, JR., ELAINE 

MARSHALL AND PRESTON MARSHALL AS TRUSTEES OF

THE MARSHALL PETROLEUM, INC. STOCK HOLDING TRUST, 

Appellees

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Case No. 276815402

O P I N I O N

This is an appeal from a probate court judgment. We reverse the attorneys’ 

fees awarded in favor of one of the appellees and render judgment that appellee 

take nothing on that claim. We additionally modify the trial court’s judgment and 

affirm the judgment as modified. 

BACKGROUND

J. Howard Marshall II (Marshall II) died on August 4, 1995, in Houston, 

Texas at the age of 90. He was survived by three heirs: his widow, Vickie Lynn 
3

Marshall (a/k/a Anna Nicole Smith) (“Vickie”), and two sons, J. Howard Marshall, 

III (“Marshall III”) and E. Pierce Marshall (“Pierce”).

A. Pierce’s Application for Probate of Marshall II’s Will and Codicil in 

Texas

On August 8, 1995, on a Petition for Probate of Foreign Testament filed by 

Pierce and Finley Hilliard (who were both named as executors in Marshall II’s 

will), a Louisiana district court signed an Order for Probate of Foreign Testament 

and Codicil recognizing Marshall II’s December 22, 1992 will and June 11, 1993 

codicil as valid “in form under the laws of the state of Texas” and ordering that 

Pierce and Hilliard “be confirmed as testamentary co-executors . . . to serve 

without bond . . . and that letters testamentary are to be issued to” Pierce and 

Hilliard. 

On August 16, 1995, Pierce and Hilliard filed—in Texas probate court—a 

joint Application for Probate of Will and Codicil and for Appointment of 

Independent Co-executors. That application stated that, “[p]rior to his death, the 

Decedent transferred all of his assets to a trust, known as the J. Howard Marshall, 

II, Living Trust; however, there is a necessity for an administration of this Estate in 

Texas as there are claims owing to the Estate and there may be claims against the 

Estate.” That application attached a copy of the Louisiana probate order and 

requested that the Texas probate court admit the will and codicil into probate and 

that Letters Testamentary as Independent Co-Executors without bond be issued to 
4

Pierce and Hilliard. In an amended application in the Texas probate court, Pierce 

and Hilliard further explained that the Marshall II’s Living Trust was a Louisiana 

trust being administered by the Louisiana courts, but that there were interests of 

Marshall II’s estate “involving claims peculiar to Texas” in need of administration 

in Texas.

On September 20, 1995, Pierce filed a document in the Texas probate 

proceedings explaining that Hilliard and each successor co-executor named in 

Marshall II’s will declined to serve as executor. Accordingly, Pierce requested that 

he be appointed as sole Independent Executor. That filing also identified the sole 

devisee named in Marshall II’s will as the Trustee of the Howard Marshall II 

Living trust. Pierce and Hilliard are the co-executors of that Living Trust.

On March 7, 1996, Pierce filed another amended application for probate

representing that, because Marshall II transferred all of his assets to the Living 

Trust prior to his death, there are no assets subject to administration in Texas. 

Alternatively, Pierce requested that he be appointed sole Independent Executor. 

Robert McIntyre was then appointed by the Texas probate court as temporary 

administrator of the estate. 

B. Marshall III’s Will Contest and Tort Claims 

In the Texas probate proceedings, Marshall III filed a will contest and claims 

against (1) Pierce (individually and in his capacities as trustee of several trust and 
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attorney in fact for Marshall II under a power of attorney), (2) Hilliard 

(individually and in his capacity as trustee of several trusts), (3) Kenn Farrar, 

(individually and in his capacity as trustee of two trusts), (4) Marshall Petroleum, 

Inc., (5) Harvey Sorensen (individually and as trustee of a trust), (6) Foulston & 

Siefkin, L.L.P., (7) Elaine T. Marshall (individually and in her capacity as trustee 

of two trusts), (8) E. Pierce Marshall, Jr., and (9) Preston Marshall. 

Marshall III alleged that he and his father, Marshall II, entered a contract in 

1980 under which Marshall III agreed to sell to Marshall II his Koch Industries

stock. Marshall III asserted that, in return, Marshall II promised to treat Marshall 

III equally to Pierce and his family with regard to estate planning and property. 

Marshall III sued for breach of this contract, as well as fraud, breach of fiduciary 

duty, promissory estoppel, and tortious interference, seeking damages, a 

declaration, and a constructive trust. These claims are based on the allegation that 

Marshall II established a Living Trust and transferred most of his estate to Pierce 

through that trust, to the exclusion of Marshall III. In addition, Marshall III 

claimed that Marshall II made inter vivos transfers of property to Pierce and his 

family for less than full and adequate consideration, and that he failed to make 

equal gifts to Marshall III. Marshall III complained that, beginning in 1994, Pierce 

and others caused Marshall II to sign several overreaching documents that operated 
6

to put Pierce in control of Marshall II’s vast wealth, including a power of attorney 

in favor of Pierce, and an amendment to the Living Trust, rendering it irrevocable. 

With regards to Marshall II’s will and codicil, Marshall III asserted that they 

were invalid based upon defects in their execution. Alternatively, Marshall III 

alleged that they were both executed as the result of undue influence. In the 

further alternative, Marshall III asserted that Marshall II lacked testamentary 

capacity when the will and codicil were executed. Marshall III similarly 

complained that the Living Trust and its amendments were executed as a result of 

undue influence and duress, such that transfers to the purported trusts should be 

invalidated.

Marshall III requested that the Texas probate court deny the application for 

probate and impose a constructive trust on all Marshall II’s property that had been 

transferred to others. 

C. Vickie’s Bankruptcy Case in California

On January 25, 1996, Vickie filed for Chapter 11 Bankruptcy in California, 

where she lived. Pierce filed a proof of claim in the Bankruptcy proceedings, 

alleging that Vickie had defamed him when her lawyers told the press that Pierce 

had engaged in forgery, fraud, and overreaching to gain control of Marshall II’s 

assets. Pierce sought a declaration that his claim was not dischargeable in 

bankruptcy. Vickie asserted truth as a defense. Later, Pierce filed a proof of claim 
7

for the defamation, seeing to recover defamation damages in the bankruptcy 

proceedings.

Vickie also asserted counterclaims against Pierce in the bankruptcy action, 

among them a claim that Pierce tortiously interfered with an intended gift from 

Marshall II. According to Vickie, Marshall II intended to gift to her half of his 

income during their marriage in the form of a “catchall” trust that would be formed 

for the purpose of capturing their “new community” estate. The basis of both her 

defense to Pierce’s defamation claim and her affirmative tortious interference 

claim was the allegation that Pierce prevented Marshall II’s intended gift to her by, 

among other things, effectively imprisoning Marshall II by surrounding him with 

hired guards to prevent contact with Vickie, making misrepresentations to Marshall 

II, and transferring Marshall II’s property against his express wishes.

Vickie’s counterclaims turned her objection to Pierce’s claim into an 

adversary proceeding. See FED. R. BANKR. P. 3007. On November 5, 1999, the 

Bankruptcy Court granted summary judgment in Vickie’s favor on Pierce’s

defamation claim and, after a bench trial, entered judgment for Vickie on her 

tortious interference counterclaim (based upon both evidence presented at trial and 

facts found against Pierce as sanctions for discovery abuse). That Bankruptcy 

Court judgment, signed December 29, 2000, awarded Vickie approximately $450

million in compensatory damages and $25 million in punitive damages. 
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D. Vickie’s Will Contest in Texas Probate Court 

While the Bankruptcy proceedings were pending in California, Vickie filed 

her own will contest in the pending Texas probate proceedings against Pierce and 

numerous other defendants. Her pleading acknowledged the claims pending in the 

California proceedings, and specified that the relief she sought in Texas was 

requested only “as to such remedies and as against such parties who are not subject 

to the jurisdiction of the Bankruptcy Court.” 

Vickie challenged the validity of Marshall II’s Living Trust, and argued that 

trust could not receive assets under the residuary clause in Marshall II’s 1992 will. 

Accordingly, Vickie asserted, interests subject to the residuary clause must pass by 

intestate succession. She also sought an accounting of trust income and 

community property, and sought damages for alleged fraudulent transfers and 

fraud on the community estate. She later added claims for breach of fiduciary 

duties, aiding and abetting, civil conspiracy, promissory estoppel, equitable 

estoppel, tortious interference, conversion, unjust enrichment, and breach of 

contract.

On January 3, 2000, Pierce and his wife Elaine Marshall (in their individual 

capacities and in their capacities as trustees of various trusts) filed, in the Texas 

probate proceeding, counterclaims against Vickie. That filing alleged:

3. The petition filed by Vickie Lynn Marshall is frivolous 

and violated § 10.001, et seq. of the Texas Civil Practice & Remedies 
9

Code and Rule 13, Texas Rules of Civil Procedure. The allegations 

made by Vickie Lynn Marshall were known by Vickie Lynn Marshall 

to be false when she first made them. Discovery has further proven 

that Vickie Lynn Marshall[’s] claims are frivolous. Accordingly, the 

Marshall Family Defendants are entitled to recover damages for 

Vickie Lynn Marshall’s frivolous claims including attorney’s fees and 

expenses incurred because of this litigation. 

At least one line from the fourth paragraph appears to be missing as the text

on the next page begins in the middle of a sentence:

decedent Howard, Sr., and the benefits and rights of the Marshall 

Family Defendants as set forth in the will and trust established by 

Howard, Sr. Vickie Lynn Marshall has tortiously interfered with the 

inheritance rights of the Marshall Family Defendants by filing this 

lawsuit which contains false and fraudulent allegations. Vickie Lynn 

Marshall has intentionally invaded the personal and property rights of 

the Marshall Family Defendants and has acted without any just cause 

or excuse. Further the actions of Vickie Lynn Marshall as set forth 

above amount to intentional interference with administration of the 

estate of Howard, Sr. 

5. As a result of the tortious actions of Vickie Lynn 

Marshall, the estate of Howard, Sr. and its intended beneficiaries, 

including the Marshall Family Defendants, have suffered damages 

including loss of benefit of the estate or trust, fees and expenses 

charged or collected by the Temporary Administrator, attorney’s fees, 

expenses, and harm to the corpus of the estate. These damages 

continue and exceed the minimum jurisdictional limits of this court. 

Vickie Lynn Marshall is liable to the Marshall Family Defendants for 

all actual damages caused by her tortious interference with inheritance 

rights of the Marshall Family Defendants and her intentionally 

interference with the administration of the estate of Howard, Sr. 

Vickie Lynn Marshall is further liable for punitive damages because 

she has acted intentionally with malice. 

6. As a result of Vickie Lynn Marshall’s purported, but 

frivolous, will contest, E. Pierce Marshall has been forced to defend or 

prosecute this proceeding in good faith and with just cause. Pursuant 

to Texas Probate Code and any other applicable law or statute, E. 

Pierce Marshall, as executor of the applicable wills, is entitled to his 
10

necessary expenses and disbursements, including reasonable 

attorney’s fees, for defending or prosecuting this action in good faith 

and with just cause. 

Trial of all the probate court claims began on September 18, 2000. Three 

months into trial (and less than a week after judgment was entered in Vickie’s 

favor by the California Bankruptcy Court), on January 5, 2001, Vickie filed a 

Notice of Entry of Final Judgment by the Federal Bankruptcy Court and Notice of 

Voluntary Non-Suit without Prejudice of All Claims in the Texas probate 

proceedings.

On February 9, 2001, Pierce and Elaine Marshall amended their 

counterclaims against Vickie in the probate court, alleging she individually, and in 

conspiracy with others, “through a pattern of misrepresentations, defamation, 

creation of false documents, perjured testimony, filing of false pleadings and 

fraudulent acts, Vickie Lynn Marshall has tortiously interfered with CounterPlaintiffs’ rights and expectancy in the estate of J. Howard Marshall from a date 

well before his death until the present.” This amended petition also contained a 

request for a declaratory judgment:

Counter-Plaintiffs seek a declaration of the respective rights of 

Counter-Plaintiffs and Counter-Defendant with respect to the estate of 

J. Howard Marshall and a declaration that Vickie Lynn Marshall has 

no right to estate property of J. Howard Marshall II. 

Counter-Plaintiffs further seek a declaration that Vickie Lynn 

Marshall had no agreement or contract for half of J. Howard Marshall 

II’s estate. Vickie Lynn Marshall’s action in dismissing or nonsuiting her claims without prejudice creates the prospect that she may 
11

attempt to refile her baseless and frivolous claims at a later date even 

though barred by res judicata forcing all these Counter-Plaintiffs to 

waste additional time and resources defending them. Thus, the Court 

in justice and equity should permit the jury to consider the issue (TEX.

CIV. PRAC. & REM. CODE § 37.007) and issue a declaratory judgment 

with respect to whether Counter-Defendant has any rights to property 

of the Estate of J. Howard Marshall II to prevent frivolous and 

harassing litigation against them, and Counter-Defendant will not be 

surprised or prejudiced by submission of this issue as CounterDefendant intended until recently to submit the same issue.” 

On February 12, 2001, Vickie filed an objection to these claims, asserting 

that the amended counterclaims (1) were untimely and prejudicial, (2) violated the 

permanent injunction arising out the California Bankruptcy Court 1999 discharge, 

(3) failed to satisfy the requisites of the Declaratory Judgment Act, (4) constituted 

an improper request for a declaration of non-liability in a tort action, (5) sought to 

impermissibly undermine the prior California Bankruptcy Court Judgment, and (6) 

were improperly brought after Vickie’s nonsuit, which the Probate Court was 

obligated to enter as a ministerial act.

On February 16, 2001, in compliance with a California Bankruptcy Court 

order declaring that defendants’ Texas probate court tortious interference claims 

violated the bankruptcy court’s discharge order and threatening contempt if those 

claims were not dismissed, those defendants dismissed the intentional interference 

claims against Vickie, leaving only the request for sanctions and request for 

declaratory relief. 
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E. The Texas Probate Court’s Judgment

Eighty questions were summited to the jury in the underlying probate case, 

which found in favor of the defendants on all issues. Most of the questions were 

specific to Marshall III’s will contest and claims (and the defendants’ affirmative 

defenses to those claims), but one question was specific to Vickie:

QUESTION NO. 66

Do you find that Vickie Lynn Marshall did not have an agreement with J. 

Howard Marshall, II, that he would give her one-half of all of his property?

Answer “We do so find” or “We do not so find”.

Answer: We do so Find

This jury finding was memorialized in the Probate Court’s December 7, 

2001 Second Amended Final Judgment, which stated that “IT IS, THEREFORE, 

ORDERED, ADJUDGED, AND DECREED by the Court that counterdefendant 

VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, did not have an 

agreement with J. HOWARD MARSHALL II that he would give her one-half of 

all his property.” That judgment also contained several other recitations related to 

Vickie, many of which are the subject of her appeal here, including: “IT IS 

FURTHER ORDERED, ADJUDGED, AND DECREED by the Court” that,

 This Court has exclusive and dominant jurisdiction over (1) all 

claims regarding the property owned by J. Howard Marshall II; . . . 

. (6) all affirmative claims and all filed and possible compulsory 

counterclaims raised by . . . VICKIE LYNN MARSHALL; and (7) 
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all plaintiffs’ and defendants’ claim raised and that could have 

been raised against the Estate of J. Howard Marshall II, concerning 

the making of any inter vivos or testamentary gift or transfer by J. 

Howard Marshall II of any of his property.

 VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, 

abandoned any claim as to any property interest, other interest, or 

claim of any kind or sort in the estate of J. HOWARD 

MARSHALL II, in the property or assets of the J. Howard 

Marshall, II, Living Trust, or in any property that is the subject 

matter of this proceeding . . . .

 any and all claims by VICKIE LYNN MARSHALL against the 

Estate of J. HOWARD MARSHALL II or against the property in 

the J. Howard Marshall, II, Living Trust, including but not limited 

to claims that J. HOWARD MARSHALL II intended but failed to 

give her or to leave her any portion of such property during his life 

or upon his death, were required by law to have been asserted as 

compulsory counterclaims in this proceeding pursuant to Tex. R. 

Civ. P. 97. The Court further finds that the jury answered the 

foregoing questions that J. HOWARD MARSHALL II possessed 

mental capacity as required by law when he executed the Amended 

and Restated Living Trust indenture dated the 13th day of July 

1994 and that the jury has failed to find that said execution was 

procured through undue influence exercised by E. PIERCE 

MARSHALL. The Court further finds that the jury answered the 

foregoing questions that J. HOWARD MARSHALL II possessed 

testamentary capacity as required by law when he executed the 

Last Will and Testament of J. Howard Marshall, II, dated the 22nd 

day of December 1992, and that the jury has failed to find that said 

execution was procured through undue influence exercised by E. 

PIERCE MARSHALL. The Court further finds that all defendants 

are also entitled to a take-nothing judgment based on any claim 

that VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE 

SMITH, should have made in this proceeding as a compulsory 

counterclaim.

 as a matter of law VICKIE LYNN MARSHALL, A/K/A ANNA 

NICOLE SMITH, does not possess any interest in and is not 

entitled to possession of any property within the Estate of J. 

HOWARD MARSHALL II or any property of the J. Howard 
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Marshall, II, Living Trust because of any representations, 

promises, or agreements made by J. HOWARD MARSHALL II to 

or with VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE 

SMITH;

 as a matter of law any and all claims that have been or should have 

been asserted by VICKIE LYNN MARSHALL A/K/A ANNA 

NICOLE SMITH, based upon alleged representations, promises, or 

agreements made by J. HOWARD MARSHALL II to or with 

VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, 

have been disposed of in this proceeding;

 J. HOWARD MARSHALL II did not intend to give and did not 

give to VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE 

SMITH, a gift or bequest from the Estate of J. HOWARD 

MARSHALL II or from the J. Howard Marshall, II, Living Trust 

either prior to or upon his death; and

 VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, 

shall take nothing from any claim that she should have made in this 

proceeding as a compulsory counterclaim against . . . E. Pierce 

Marshall.

 pursuant to the Uniform Declaratory Judgment Act, Tex. Civ. Prac. 

& Rem. Code Ann. §§ 37.009 (Vernon 1987), E. PIERCE 

MARSHALL is entitled to an award of his reasonable and 

necessary attorneys’ fees as is equitable and just against VICKIE 

LYNN MARSHALL A/K/A ANNA NICOLE SMITH. The 

attorneys’ fees awarded herein against VICKIE LYNN 

MARSHALL A/K/A ANNA NICOLE SMITH are solely and 

exclusively based upon evidence relating to the attorneys’ fees 

incurred during the trial which occurred in this cause between 

September 18, 2000 and February 18, 2001.

 PIERCE MARSHALL have and recover from VICKIE LYNN 

MARSHALL, A/K/A ANNA NICOLE SMITH, attorneys’ fees in 

the sum of FIVE HUNDRED FORTY-ONE AND N0/100 

DOLLARS ($541,000.00) for services rendered through the trial of 

this cause, . . . ONE HUNDRED THOUSAND AND N0/100 

DOLLARS ($100,000.00) from VICKIE LYNN MARSHALL, 

A/K/A ANNA NICOLE SMITH, as additional reasonable 

attorneys’ fees [for an appeal to the court of appeals and] ONE 
15

HUNDRED THOUSAND AND N0/100 DOLLARS 

($100,000.00) [for an appeal to the supreme court].

The probate court’s plenary power expired over its December 7, 2001 final 

judgment on February 11, 2002.

E. Back in the Federal Courts . . . .

Pierce appealed the bankruptcy court’s December 29, 2000 judgment to the 

California District Court. 

1. The District Court’s June 19, 2001 opinion – Jurisdiction and 

Core vs. Non-Core Analysis

In Pierce’s appeal, the federal district court first issued an opinion 

addressing only jurisdiction and standard of review. In re Marshall, 264 B.R. 609, 

618 (C.D. Cal. June 19, 2001). The court concluded that the bankruptcy court did 

have jurisdiction over Vickie’s tortious interference with an inter vivos gift 

counterclaim against Pierce, thereby rejecting Pierce’s argument that the “probate 

exception” (which bars federal courts from probating a will) precluded the federal 

courts from exercising jurisdiction over Vickie’s claim. Id. at 619. The court 

reasoned that Vickie’s counterclaim is asserted against Pierce “individually and 

makes no claim against the estate or even against the trusts existing” when 

Marshall II died. Id. at 622. The court recognized that “Vickie’s counterclaim is

at least in part premised on the theory that she is entitled to nothing either from the 

living trusts or from the estate itself” but, rather, that “Pierce prevented J. Howard, 
16

Sr. from including her in the living trusts.” Id. at 623; see also id. (“Thus, it is 

entirely possible that the trusts, as currently structured, are legally valid but also 

that Pierce owes Vickie damages for preventing J. Howard, Sr. from structuring the 

trusts in another way.). 

The district court rejected, however, the bankruptcy court’s conclusion that 

Vickie’s counterclaim was a “core Bankruptcy proceeding.” Id. at 626. This was 

important because a bankruptcy court can only enter final judgment over core 

bankruptcy matters. Id. at 625. If a matter is non-core, the Bankruptcy Court may 

only entered proposed findings of fact and conclusion of law. Id. The district 

court then reviews those proposed findings and conclusion de novo, and it is the 

district court that ultimately enters the final judgment. Id. The district court thus 

vacated the bankruptcy court’s December 20, 2000 purported final judgment and 

announced it would undertake a comprehensive review of the bankruptcy court’s 

record, as well as take additional evidence, to decide whether Marshall II promised 

a gift to Vickie, whether Pierce interfered with that gift, and whether Pierce 

destroyed or failed to provide relevant evidence in a way that justified the 

imposition of sanctions. 

2. The District Court’s December 21, 2001 Opinion – Claim 

Preclusion

The California District Court ordered Pierce to produce additional 

documents and set a hearing date to hear additional evidence. In re Marshall, 271 
17

B.R. 858, 862 (C.D. Cal. 2001). Before that hearing, Pierce filed a motion for 

summary judgment, asserting that (1) “Vickie’s claims are precluded by the 

doctrine of claims preclusion by the [December 7, 2001] judgment in the Texas 

Probate Court,” and, alternatively, (2) “Vickie is estopped from arguing the key 

elements of her claim for tortious interference with an inter vivos gift under the 

doctrine of issue preclusion because of the Texas probate judgment.” Id. at 862. 

The district court concluded that res judicata did not apply, as Vickie did not, and 

was not required to, litigate her claim for interference with an inter vivos gift in 

Texas. Id. at 863 (citing exception to compulsory counterclaim rule that a party is 

not required to bring a counterclaim if that claim is the subject of a pending action 

elsewhere). As for collateral estoppel, the court held that the Texas Probate Court 

judgment was not yet final under Texas law because the court’s plenary power had 

not expired. Id. Finally, the court held that Pierce’s arguments were untimely, as 

the court’s de novo review was not a new trial, but an examination of the trial in 

bankruptcy court. Id. at 865 (“The Court is not aware of any authority, nor does 

Pierce’s counsel point to any, that would support the proposition of applying res 

judicata or collateral estoppel after a trial has been had.”). The court also noted 

that the issues in the Texas Probate proceedings were not the same as the ones put 

at issue before the California Courts. Id. 
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3. The District Court’s March 7, 2002 Opinion and Judgment 

Adopting as Modified Bankruptcy Court’s Proposed Findings of 

Fact and Conclusions of Law 

From December 11, 2001 to January 8, 2002, the California District Court 

“conducted an evidentiary hearing wherein it accepted the testimony of the central 

figures in the case, documentary evidence, and arguments of counsel” resulting in 

it adopting the bankruptcy court’s findings of fact and conclusions of law with 

certain modification and making independent findings of fact and conclusions of 

law. In re Marshall, 275 B.R. 5, 7–8 (C.D. Cal. 2002). The district court did not 

rule on the propriety of the bankruptcy court’s sanctions, as it concluded—after 

considering all the evidence, including Pierce’s evidence and testimony that had 

previously been excluded by the bankruptcy court’s sanctions—that Vickie was 

entitled to judgment on her claims. Id. at 57. Although the district court noted that 

“the facts are much more egregious than even the bankruptcy court suspected and 

found,” it concluded that the evidence supported an award of actual damages that 

is less than the bankruptcy court awarded. Id. It signed a judgment awarding 

$44,292,767.33 in actual damages and $44,292,767.33 in exemplary damages. Id. 

4. The Ninth Circuit’s December 30, 2004 Opinion – Probate 

Exception 

Pierce appealed the District Court’s judgment. The Ninth Circuit reversed, 

concluding that the probate exception to federal jurisdiction deprived the 

bankruptcy court of jurisdiction to hear Vickie’s counterclaim against Pierce. In re 
19

Marshall, 392 F.3d 1118, 1137 (9th Cir. 2004). The court agreed with Pierce that 

Vickie’s counterclaim in the bankruptcy proceeding was “simply a disguised attack 

on J. Howard Marshall II’s 1982 trust, as amended, and on the postmortem 

disposition of his property as provided in the trust.” Id. Having concluded that the 

Texas probate court had “exclusive jurisdiction,” the court directed the lower 

courts to dismiss Vickie’s claims against Pierce, and consider the effect of the 

probate exception on other procedural matters and sanctions awarded. Id. 

5. The U.S. Supreme Court’s May 1, 2006 Opinion – Probate 

Exception

Vickie appealed the Ninth Circuit’s judgment. The Supreme Court reversed, 

holding that the probate exception did not apply. Marshall v. Marshall, 547 U.S. 

293, 312, 126 S. Ct. 1735, 1749 (2006). It noted that Vickie’s tortious interference 

claim did not “involve the administration of an estate, the probate of a will, or any 

other purely probate matter”; rather she “seeks an in personam judgment against 

Pierce” not the res in the custody of the probate court. Id. The Supreme Court also 

rejected the Ninth Circuit’s determination that the federal court lacked jurisdiction 

because the Texas Probate Court had declared it had exclusive jurisdiction over all 

of Vickie’s claims against Pierce. Id. at 312–13; 126 S. Ct. at 1749–50. It 

reasoned that, while Texas law governs the substantive elements of Vickie’s 

counterclaim, “Texas may not reserve to its probate courts the exclusive right to 

adjudicate a transitory tort.” Id. The Supreme Court reversed and remanded to the 
20

Ninth Circuit, noting that the issues not previously reached by the Ninth Circuit—

including “the question whether Vickie’s claim was core” and “Pierce’s arguments 

concerning claim and issue preclusion”—remained “open for consideration on 

remand.” Id. at 314–15; 126 S. Ct. at 1750. 

6. The Ninth Circuit’s March 19, 2010 Opinion – Core vs. Non-Core 

and Issue Preclusion 

On remand, the Ninth Circuit held that Vickie’s tortious interference claim 

was a compulsory counterclaim to Pierce’s defamation claim in the bankruptcy 

proceeding, but nonetheless concluded that it was “not a core proceeding arising in 

a case under the Bankruptcy Code because it is not so closely related to Pierce 

Marshall’s defamation claim that it must be resolved in order to determine the 

allowance or disallowance of his claim against her bankruptcy estate.” In re 

Marshall, 600 F.3d 1037, 1059 (9th Cir. 2010). Because the bankruptcy court 

could not render final judgment over non-core claims, the final judgment resolving 

Vickie’s claim in federal court was the district court’s March 7, 2002 judgment, 

not the bankruptcy court’s December 29, 2000 purported final judgment. Id. at 

1060. Reasoning that because “the Texas probate court’s judgment was the earliest 

final judgment entered on matters relevant to this proceeding,” the court held that 

the district court erred by refusing “to give preclusive effect to any of the jury 

findings incorporated into the Texas probate court’s judgment or to any of the 
21

Texas probate court’s other factual findings of legal conclusions.” Id. at 1064. The 

Ninth Circuit thus again reversed and remanded the District Court’s judgment. 

7. The U.S. Supreme Court’s June 23, 2011 Opinion – Core vs. NonCore and Article III Power 

Vickie again appealed to the Supreme Court. That Court held that—

contrary to the District Court’s and Ninth Circuit’s holdings—“Vickie's 

counterclaim against Pierce for tortious interference is a ‘core proceeding’ under 

the plain text of § 157(b)(2)(C).” Stern v. Marshall, ___ U.S. ___, 131 S. Ct. 2594, 

2604 (2011). The Supreme Court nonetheless held that by resolving Vickie’s core 

state law tortious interference claim in a final judgment as statutorily permitted, the 

bankruptcy court exceeded its powers under Article III of the United States 

Constitution. Id. at 2608. Because it concluded that the Bankruptcy Court “lacked 

the constitutional authority to enter a final judgment on a state law counterclaim 

that is not resolved in the process of ruling on a creditor’s proof of claim,” the

Court affirmed the Ninth Circuit’s judgment reversing the District Court’s 

judgment in Vickie’s favor. Id. at 2620. It did not address issue preclusion. 

8. Motion for Sanctions on Remand

On May 29, 2013, the district court addressed motions for sanctions filed by 

Stern alleging misconduct in the underlying bankruptcy proceedings. See in re 

Marshall, No. SACV 01-97, 2013 WL 2370711, at *1 (C.D. Cal. May 29, 2013). 

Several parties, including Pierce’s estate and related companies and successors in 
22

interest, filed motions requesting a stay of the court’s entry of final judgment 

pending disposition of the sanctions motion and pending disposition of this appeal 

of the probate case. Id. The court granted a stay pending resolution of the 

sanctions, issued sua sponte show cause order against an attorney to demonstrate 

why he should not be sanctioned for bad faith conduct and, finally, denied the 

requested stay pending this appeal. Id. 

On August 18, 2014, the district court revisited the issue, concluding that “it 

would be unlawful and repugnant” for the court to “issue an order designed to 

undermine or rewrite the Circuit’s precedent or the Texas judgment.” In re 

Marshall, 8:01-cv-00097-DOC (C.D. Cal. Aug. 18, 2014). Accordingly, the 

district court dismissed Stern’s motion for sanctions. Id. 

THIS APPEAL

Numerous parties filed notices of appeal of the probate court’s December 7, 

2001 final judgment. On August 15, 2002, we abated this appeal pursuant to a 

notice stating that Marshall III had filed for bankruptcy protection. See TEX. R.

APP. P. 8.1, 8.2. On March 13, 2014, we reinstated the appeal on Howard III’s 

motion indicating his bankruptcy case had concluded. 

Shortly thereafter, all of the appellants except Vickie filed notices to dismiss 

their respective appeals, which we granted. Howard Stern, as Executor of the 

Estate of Vickie Lynn Marshall, filed a Suggestion of Death of Vickie Lynn 
23

Marshall and requested that we name him in place of Vickie and allow the appeal 

to proceed in the name of the estate. We granted his motion. Stern then notified 

the court that “the grounds for [Vickie’s Estate’s] appeal are not dependent upon a 

reporter’s record and for that reason a reporter’s record has not been requested.”

We in turn notified the parties that, pursuant to Texas Rule of Appellate Procedure 

37.3(c), we would “consider and decide only those issues or points that do not 

require a reporter’s record for a decision.”1 

We use the name “Vickie” to refer to appellant during her lifetime, and the 

name “Stern” when referencing Vickie’s estate. Appellees are referred to 

throughout this opinion as either “appellees” or “Marshall defendants.”2 

Stern’s brief raises the following issues:

1. Vickie had tortious interference claims against Pierce pending in both 

the Probate Court and in a California court. After Vickie won her case 

in California, she nonsuited all of her claims in the Probate Court. 

Rather than dismissing Vickie, the Probate Court allowed the 

[Marshall defendants] to file new, post-nonsuit counterclaims against 

Vickie seeking, among other things, improper and unsupportable 

declaratory relief. Did the Probate Court err in allowing, rendering 

judgment on, and awarding damages and fees on those declaratory 

judgment counterclaims?

2. Vickie’s tortious interference claims required no findings that she was 

entitled to take under J. Howard’s will or that she was entitled to 

 

1 After Stern’s appellant’s brief was filed, appellees filed a Motion for Leave to File 

Partial Reporter’s Record, stating that a “partial reporter’s record would assist the 

Court in understanding the factual and procedural background of this dispute and 

in assessing the merits of the issues on appeal.” We denied that motion.

 

2 We note that appellee Pierce is also now also deceased. 
24

property that passed through J. Howard’s estate or trusts. Only Vickie 

and Pierce, not J. Howard’s estate or the appellee trusts, were parties 

in the California case. Did the Probate Court err in finding that 

Vickie’s claims were compulsory counterclaims and that she 

abandoned her claims by taking a nonsuit after she won her California 

case?

3. The only claim that Vickie asserted in California was about a gift—

that Pierce tortiously interfered with J. Howard’s inter vivos gift to 

her. The only question that the jury was asked regarding Vickie was 

about a contract—whether she and J. Howard had an agreement that J. 

Howard would give her half of his estate. The Probate Court’s final 

judgment recited findings outside and beyond the jury verdict, 

including that there had been no intent for J. Howard to give Vickie an 

inter vivos gift and that all of Vickie’s claims against Pierce were 

disposed of. Did the Probate Court err in rendering a final judgment 

against Vickie that was unsupported by the pleadings, jury’s verdict,

and law?

THE EFFECT OF VICKIE’S NONSUIT

Stern argues that Texas Rule of Civil Procedure 162 “gives Vickie an 

absolute right to take her nonsuit which completely terminated her case from the 

moment it was filed.” See Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011). He 

contends that “no cognizable claim for affirmative relief was pending at the time 

Vickie filed her nonsuit, and the Probate Court’s failure to enter an order granting 

Vickie’s nonsuit without prejudice and dismissing her from the case was error.” 

He acknowledges that Appellees’ pleadings against Vickie at the time of the 

nonsuit were labeled “affirmative claims” and that they contained the words 

“tortious interference,” but he contends that reference to the actual facts pleaded 

and relief sought demonstrate that their “affirmative” claims were only for 
25

sanctions. Because Rule 162 provides that “a dismissal . . . shall have no effect on 

any motion for sanctions,” Stern argues that the Appellees’ pending request for 

sanctions did not prevent Vickie’s nonsuit from being effective, as she did not need 

to remain a party for the court to rule on the sanctions request. 

Finally, Stern asserts that the probate court compounded its error by 

allowing the Appellees to add counterclaims, including declaratory judgment 

action claims, against Vickie weeks after her nonsuit. See Progressive Ins. Cos. v. 

Hartman, 788 S.W.2d 424, 426 (Tex. App.—Dallas 1990, orig. proceeding) (“A 

counterclaim filed after the motion to nonsuit is ineffective.”). Accordingly, Stern 

requests that we hold the court lacked jurisdiction to enter judgment against Vickie 

on the improper counterclaims. 

Appellees respond that the probate court correctly determined that their 

claims for sanctions and for tortious interference with inheritance rights—both of 

which were pending at the time of Vickie’s nonsuit—were counterclaims for 

affirmative relief that prevented Vickie’s dismissal from the case. Regardless of 

whether they later prevailed on these claims, Appellees contend that their request 

for sanctions and request for tortious interference damages in the form of “loss of 

benefit of the estate or trust, fees and expenses charged or collected by the 

Temporary Administrator, attorneys’ fees, expenses, and harm to the corpus of the 

estate” survived Vickie’s nonsuit. Because these were live counterclaims pending 
26

at the time of the nonsuit, the trial court was within its power and discretion to 

allow Appellees to later amend those counterclaims to add declaratory judgment 

action claims. Appellees further argue that allowing such amendment was 

required, as Vickie was considered “a necessary and indispensable party to the 

probate of her husband’s estate” under Texas Rule of Civil Procedure 39. Cf. 

Minga v. Peralez, 603 S.W.2d 240, 241 (Tex. Civ. App.—Corpus Christi 1980, no 

writ) (heirs in law to decedent who died intestate are indispensable parties when 

suit against estate involves title to real estate). 

Appellees also point out that when Vickie nonsuited, Marshall III’s live 

pleadings requested judicial declarations that Marshall II’s will was invalid, that 

the Living Trust was void, and that all of Marshall II’s property should pass 

through intestacy to Pierce, Marshall III, and Vickie. Because Vickie would be 

affected by the resolution of this claim, she was an indispensable party such that 

the probate court had no authority to dismiss her. 

A. Applicable Law

Rule 162 provides, in relevant part:

At any time before the plaintiff has introduced all of his evidence 

other than rebuttal evidence, the plaintiff may dismiss a case, or take a 

non-suit . . . .

Any dismissal pursuant to this rule shall not prejudice the right of an 

adverse party to be heard on a pending claim for affirmative relief or 

excuse the payment of all costs taxed by the clerk. A dismissal under 

this rule shall have no effect on any motion for sanctions, attorney’s 
27

fees or other costs, pending at the time of dismissal, as determined by 

the court. 

TEX. R. CIV. P. 162. 

A motion for “sanction[s] for filing a frivolous lawsuit . . . survive[s] 

nonsuit, else its imposition would rest completely in the plaintiff’s hands, defeating 

its purpose.” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 

S.W.3d 299, 300 (Tex. 2013). The supreme court has noted, however that 

“[a]lthough the Rule permits motions for costs, attorney’s fees, and sanctions to 

remain viable in the trial court, it does not forestall the nonsuit’s effect of rendering 

the merits of the case moot.” Univ. of Tex. Med. Branch at Galveston v. Estate of 

Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam); see also id. at 100–01 

(holding Rule 162’s provision providing that a nonsuit shall “have no effect on any 

motion for sanctions, attorney’s fees or other costs, pending at the time of 

dismissal” allows the court to rule on a defendant’s request for an award of costs 

post-dismissal, but that request is considered “collateral to the merits of the 

underlying case” rather than a request for affirmative relief). “A claim for 

affirmative relief must allege a cause of action, independent of the plaintiff’s 

claim, on which the claimant could recover compensation or relief, even if the 

plaintiff abandons or is unable to establish his cause of action.” Id. at 101 (citing 

BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990)). “The use 

of a creative pleading that merely restates defenses in the form of a declaratory 
28

judgment action cannot deprive the plaintiff of this right” to nonsuit under Rule 

162. Millard, 800 S.W.2d at 841. Similarly, a request for declaratory relief that 

amounts to only denial of plaintiff’s cause of action is not a counterclaim that 

seeks affirmative relief that survives a nonsuit. Id.; see also Gen. Land Office v. 

Oxy U.S.A., 789 S.W.2d 569, 570 (Tex. 1990) (“If a defendant does nothing more 

than resist plaintiff’s right to recover, the plaintiff has an absolute right to the 

nonsuit.”).

B. Analysis

Mootness implicates subject-matter jurisdiction. Meeker v. Tarrant Cnty.

Coll. Dist., 317 S.W.3d 754, 758 (Tex. App.—Fort Worth 2010, pet. denied). We 

review subject-matter jurisdiction de novo. Id. 

Appellees’ live pleadings at the time of Vickie’s nonsuit included a January 

3, 2000 filing entitled “Affirmative Claims of Marshall Family Defendants against 

Vickie Lynn Marshall.” That pleading states that Vickie’s petition is frivolous and 

violates Texas Civil Practice and Remedies Code § 10 and Rule 13 of the Texas 

Rules of Civil Procedure. It also alleges that, 

Vickie Lynn Marshall has tortiously interfered with the inheritance 

rights of the Marshall Family Defendants by filing this lawsuit 

which contains false and fraudulent allegations. Vickie Lynn 

Marshall has intentionally invaded the personal and property rights of 

the Marshall Family Defendants and has acted without any just cause 

or excuse. Further, the actions of Vickie Lynn Marshall as set forth 

above amount to intentional interference with administration of the 

estate of Howard, Sr. 
29

(emphasis added) The petition alleges harm in the form of “loss of benefit of the 

estate or trust, fees and expenses charged or collected by the Temporary 

Administrator, attorney’s fees, expenses, and harm to the corpus of the estate.” It 

also seeks recovery from Vickie for the administration costs of defending the will, 

trust, and codicil. The prayer requests the court award “actual damages, punitive 

damages, attorney’s fees and court costs,” “damages caused by Vickie Lynn 

Marshall’s frivolous pleadings including attorney’s fees and expenses incurred by 

the Marshall Family Defendants in defending this action,” and “necessary 

disbursement and expenses, including reasonable attorney’s fees.”

One week after her nonsuit, Vickie filed “Exceptions and Objections to, and 

Motion to Dismiss and/or Sever, the Purported ‘Counterclaims’.” She complained, 

among other things, that the counterclaims should not survive her nonsuit. Her 

filing was discussed by the parties and trial court at a bench conference held to 

address the scope of permissible questioning of Vickie in light of her nonsuit. 

Vickie’s counsel argued that because the specific conduct cited in the Marshall 

defendant’s pleading in support of their tortious interference claims was the same 

conduct for which they sought sanctions, those tort claims were not affirmative 

claims under Rule 162. In response, counsel for the Marshall defendants argued 

that their pleadings were sufficient under notice pleading rules to inform Vickie of 

their counterclaims for tortious interference, and that identifying her filing of a 
30

frivolous lawsuit as an example of tortious interference did not limit the bases of 

their tort claims. The court agreed with the Marshall defendants, stating that—

while the claims were “very vague[ly]” pleaded—he did not interpret the Marshall 

Family’s counterclaims to be limited to a request for sanctions, but instead to also 

plead a claim for tortious interference with inheritance and tortious interference 

with administration of an estate. The court further stated it would reconsider 

Vickie’s special exception and order the Marshall Family Defendants to re-plead 

their claims if she requested. 

A Rule 162 “‘claim for affirmative relief’ must be a pleading that states facts 

showing a cause of action independent of the plaintiff’s claim.” Baca v. Hoover, 

Bax, & Shearer, 823 S.W.2d 734, 737 (Tex. App.—Houston [14th Dist.] 1992, 

writ denied). And, as Stern correctly points out, “[w]hether a pleading is an 

affirmative claim for relief is determined by the facts alleged and not by the name 

given the plea or by the form of the prayer for relief.” Id. From this, Stern reasons 

that—even if the Marshall defendants pleaded a recognized cause of action that 

provides potential recovery independent from Vickie’s claims—if the facts the 

Marshall Family defendants pleaded in support of a claim would not support 

recovery under that cause of action, the claim cannot be “a pending claim for 

affirmative relief” that survives nonsuit. Stern does not cite any cases, and we 

have located none, applying Rule 162 in this manner. Rather, three of the cases 
31

Stern relies upon focus on whether the purported affirmative claim seeks relief 

independent of the nonsuiting party’s claim, and the other case turns on the timing, 

rather than the substance, of the party’s counterclaim. Quanto Int’l Co. v. Lloyd, 

897 S.W.2d 482, 486 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding) 

(holding that defendant’s motion to compel arbitration was affirmative claim for 

relief that survived plaintiff’s nonsuit); Baca, 823 S.W.2d at 738 (holding

defendant’s motion for restitution was an affirmative claim for relief surviving 

opposing party’s nonsuit); Gen. Land Office, 789 S.W.2d at 570 (holding 

defendant’s claim “seeking an advisory opinion on the constitutionality of the 

statutes in question does not constitute affirmative relief under Rule 162”); 

Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (holding that granting 

of a non-suit is merely a ministerial act and that defendant’s counterclaim filed 

after plaintiff’s nonsuit was filed could not prevent dismissal of case). 

Our Court has recognized a cause of action for tortious interference with 

inheritance rights. See King v. Acker, 725 S.W.2d 750, 754 (Tex. App.—Houston 

[1st Dist.] 1987, no writ). But see Jackson Walker, LLP v. Kinsel, No. 07-13-

00130-CV, 2015 WL 2085220, at *3 (Tex. App.—Amarillo April 10, 2015, no pet. 

h.) (mem. op.) (on reh’g). The elements are “(1) that an interference with one’s 

property or property rights occurred; (2) such interference was intentional and 

caused damage; and (3) the interference was conducted with neither just cause nor 
32

legal excuse.” In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.—San 

Antonio 2013, pet. denied). Stern does not dispute that the Marshall defendants 

pleaded this claim; rather, he argues that the probate court “could not have 

reasonably believed” that her conduct cited by the Marshall defendants, i.e., filing 

a will contest, constituted tortious interference. In support, he notes that the filing 

of a will challenge is a lawful action that cannot constitute tortious interference. 

See id.; see also TEX. EST. & G’SHIP CODE ANN. § 54.0014(a) (“The filing or 

contesting in probate court of a pleading relating to a decedent’s estate does not 

constitute tortious interference with inheritance of the estate.”). And he argues that 

the probate court “further affirmed this view” by ultimately denying the Marshall 

Family defendants’ motion for sanctions. 

We agree with the probate court that, at the time of Vickie’s nonsuit, the 

Marshall Family defendants had tortious-interference claims pending that qualified 

as affirmative claims for relief under Rule 162. The Marshall Family defendants 

pleaded that Vickie has “intentionally interfered with the inheritance rights of the 

Marshall Family Defendants by filing this lawsuit,” and that she “intentionally 

invaded the personal and property rights of the Marshall Family Defendants . . . 

without any just cause or excuse,” which amounted to “intentional interference 

with administration of the estate of Howard, Sr.” While Stern offers several 

reasons that any tortious interference claim based upon the conduct cited in the 
33

Marshall Family defendant’s pleadings would ultimately fail, his arguments 

conflate the concepts of affirmative independent claims for relief and claims for 

relief that will ultimately lead to recovery. We believe that whether an affirmative 

claim is pleaded for purposes of Rule 162 turns on the former, not the latter. 

Because the Marshall defendants had pending affirmative claims for relief in 

the form of tortious interference claims against Vickie, the probate court did not err 

in refusing to dismiss Vickie from the underlying suit when she nonsuited her 

claims. 

THE MARSHALL DEFENDANTS’ DECLARATORY 

JUDGMENT ACT CLAIMS

On February 9, 2001, during trial but after Vickie’s nonsuit of her claims, 

the Marshall defendants added claims for declaratory relief against Vickie to their 

pending claims for sanctions and tortious interference. A few days later, on 

February 12, 2001, the Marshall defendants dropped their tortious interference 

claims and moved forward on only their declaratory judgment action and request 

for sanctions because the California Bankruptcy Court ruled that the tortious 

interference claims violated a bankruptcy discharge order. 

The Marshall defendants specifically sought a “declaration that Vickie Lynn 

Marshall has no right to estate property of J. Howard Marshall II” and that she 

“had no agreement or contract for half of J. Howard Marshall II’s estate.” 
34

 Stern argues that the trial court “committed reversible error when it 

permitted the Defendants to assert and pursue declaratory relief under the Uniform 

Declaratory Judgments Act.” 

A. Justiciable Controversy 

The stated purpose of the Declaratory Judgments Act is “to settle and afford 

relief from uncertainty and insecurity with respect to rights, status, and other legal 

relations.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2014). The 

statute expressly provides that it is “remedial” and “is to be liberally construed.” 

Id.

“[A] declaratory judgment action may lie only where there is a ‘substantial 

controversy involving genuine conflict of tangible interests.’” City of Dallas v. 

USC, LLC, 347 S.W.3d 231, 240 (Tex. 2011); see also Bonham State Bank v. 

Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (“A declaratory judgment is appropriate 

only if a justiciable controversy exists as to the rights and status of the parties and 

the controversy will be resolved by the declaration sought.”). “To constitute a 

justiciable controversy, there must exist a real and substantial controversy 

involving genuine conflict of tangible interests and not merely a theoretical 

dispute.” Bonham State Bank, 907 S.W.2d at 467. Whether a justiciable 

controversy exists is a question of law that we review de novo. Tex. Dep’t of Pub. 

Safety v. Moore, 985 S.W.2d 149, 153–54 (Tex. App.—Austin 1998, no pet.).
35

The Marshall defendants pleaded, in support of their Declaratory Judgment 

Act claims, 

Vickie Lynn Marshall’s action in dismissing or non-suiting her claims 

without prejudice creates the prospect that she may attempt to refile 

her baseless and frivolous claims at a later date even though barred by 

res judicata forcing all these Counter-Defendants to waste additional 

time and resources defending them. Thus, the Court in justice and 

equity should permit the jury to consider the issue (Tex. Civ. Prac. & 

Rem. Code § 37.007) and issue a declaratory judgment with respect to 

whether [Vickie] has any rights to property of the estate of J. Howard 

Marshall II or any promise to receive half of J. Howard Marshall II’s 

estate to prevent frivolous and harassing litigation against them, and 

[Vickie] will not be surprised or prejudiced by submission of this 

issue as [Vickie] intended until recently to submit the same issue. 

Stern contends that the theoretical possibility that Vickie could refile her 

claims against the Marshall defendants does not make for a justiciable controversy;

instead the Marshall defendants’ declaratory judgment claims seek no more than an 

improper denial of liability on Vickie’s dismissed claims and an advisory opinion 

that serves no useful purpose. 

Specifically, Stern points out that, after Vickie filed her nonsuit, she never 

threatened to refile her claim. Indeed, she had already prevailed in California and 

won a substantial personal judgment against Pierce for his tortious interference 

with her inter vivos gift. In support, Stern cites numerous non–probate cases 

holding that the possibility that a plaintiff may file a future suit is insufficient to 

create a justiciable controversy. See, e.g., Howell v. Mauzy, 899 S.W.2d 690, 706

(Tex. App.—Austin 1995, writ denied) (claimed “legitimate fear that [the plaintiff] 
36

would bring future actions” is not sufficient to prove the existence of a dispute 

necessitating declaratory relief particularly where there was no ongoing 

relationship); Pace Concerts, Ltd. v. Resendez, 72 S.W.3d 700, 703 n.4 (Tex. 

App.—San Antonio 2002, pet. denied) (“fact that [plaintiff] may assert future 

claims arising out of the same set of circumstances is not alone sufficient to entitle 

[defendant] to declaratory judgment absent a continuing relationship”); Sanchez v. 

AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 525 (Tex. App.—Dallas 2010, no 

pet.) (“potential that another suit might be filed” reasserting nonsuited claims was 

“irrelevant and should not be considered by the trial judge”); Stein v. First Nat’l 

Bank, 950 S.W.2d 172, 175 (Tex. App. —Austin 1997, no pet.) (despite plaintiff’s

refusing to sign a release after he dismissed his suit, declaratory judgment was

improper because “the mere possibility that [plaintiff] might refile and that the 

[defendant] would be in another lawsuit is not enough to ripen the controversy . .

.”); Graves v. Diehl, No. 01-00-00412-CV, 2006 WL 1699527, at *9 (Tex. App.—

Houston [1st Dist.] June 22, 2006, pet. denied) (mem. op.) (error to grant 

declaratory relief, after nonsuit, because the “mere possibility” that the offending 

conduct will resume “that may require the parties to again engage in litigation did 

not ‘ripen’ this controversy”); Peacock v. Schroeder, 846 S.W.2d 905, 912 (Tex. 

App.—San Antonio 1993, no writ) (possibility of having to refile suit did not ripen 

matter into an actual controversy that was proper for declaratory relief). 
37

Appellees argue that these cases are distinguishable, and that the 

declarations they sought against Vickie in the probate court are specifically 

contemplated by the Texas Declaratory Judgment Act. They direct us to section 

37.004, which provides that any person interested under a will “may have 

determined any question of construction or validity arising under the instrument . .

. and obtain a declaration of rights, status, or other legal relations thereunder.” TEX.

CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2014). Additionally, they cite 

section 37.005, which provides that anyone interested “in the administration of a

trust or of the estate of a decedent . . . may have a declaration of rights or legal 

relations in respect to the trust or estate” to identify “devisees, legatees, heirs, next 

of kin, or others,” or “to determine any question arising in the administration of the 

trust or estate, including questions of construction of wills and other writings.” 

TEX. CIV. PRAC. & REM. CODE ANN. § 37.005(1), (3) (West 2014).

We agree with Stern that the Marshall family defendants’ stated reason for 

requesting the trial court allow them “in justice and equity” to add declaratoryjudgment claims mid-trial—i.e., the allegation that Vickie’s “dismissing or nonsuiting her claims without prejudice creates the prospect that she may attempt to 

refile her baseless and frivolous claims at a later date”—does not provide a basis 

for finding a justiciable controversy. But we are not constrained by this statement 

of the Marshall family’s reason in deciding the legal question of whether the trial 
38

court properly determined that the Marshall defendants’ request for a declaratory 

relief presented a justiciable controversy. 

Stern has repeated emphasized that Vickie’s tort claims against Pierce

individually (founded on the allegation that he interfered with Marshall II’s 

intended inter vivos gifts to her) are separate and apart from her claims against 

Howard II’s estate, and that “after her non-suit, Vickie had no claim against the 

estate, against estate assets, or challenging her husband’s will or living trust.” Be 

that as it may, we disagree with the proposition—implicit in Stern’s argument—

that Vickie’s lack of claims pending in the estate case rendered declarations sought 

by the Marshall defendants improper and irrelevant to the probate issues still 

pending before the probate court in adjudicating respective rights to Marshall II’s 

estate. 

The trial court had pending before it a multitude of issues related to Marshall 

II’s estate even after Vickie’s nonsuited her claims. To properly determine if a 

justiciable controversy was presented by the Marshall defendants’ request for 

declaratory judgment, we must view this claim as it relates to these matters that 

remained pending in the probate court, rather than—as Stern urges—as it relates to 

Vickie’s nonsuited claims. 

Appellees cite this Court’s decision in In re O’Quinn, which held that a 

foundation designated as a will beneficiary could intervene in probate proceedings 
39

over the objection of the alleged common-law wife of the decedent who argued 

that the foundation lacked a sufficient justiciable interest. 355 S.W.3d 857, 861 

(Tex. App.—Houston 2011, orig. proceeding). The foundation sought declarations 

that (1) the decedent was not married at the time of his death; (2) all of the 

decedent’s personal effects were devised under the will to the Foundation; and (3)

the foundation is the sole residual beneficiary of the decedent’s law firm 

testamentary trust. Id. We noted that the foundation had a vested interest in the 

property owned by the decedent, and that the purported wife made several claims 

that—if successful—would significantly reduce the amount of assets that are part 

of the probate estate. Id. Accordingly, we concluded that the dispute between the 

foundation and purported wife was not “merely theoretical, hypothetical or

contingent.” Id. at 865. We further held that the foundation, as the devisee under 

the will, may permissibly seek declaratory relief pursuant to Civil Practice and 

Remedies Code section 37.005(3) to determine “any question arising in the 

administration” of the estate, including questions of whether the decedent was 

married and whether the decedent made gifts and financial promises to his 

purported wife. Id. at 866. 

Stern insists that appellees’ “reliance on O’Quinn is misplaced,” because the 

purported wife in that case actively pursued estate assets, meaning she was 

attempting to keep the foundation from getting what the estate planned to give to it. 
40

This case is distinguishable, Stern argues, because Vickie nonsuited claims against 

estate and was instead pursuing only tort claims in a different forum, recovery 

from which would not impact the size of the probate estate. 

After Vickie’s nonsuit, Pierce’s request that Marshall II’s will and codicil be 

entered into probate and that testamentary letters be issued was still pending. Also 

pending was Marshall III’s challenge to the validity of the will and codicil and 

numerous tort claims against various parties related to Marshall II’s intentions 

during his life, as well as the circumstances surrounding the execution of numerous

probate and will documents. Marshall III sought to invalidate numerous inter vivos

and testamentary gifts, and to have Marshall II’s assets pass through intestacy to 

the three heirs, rather than through Marshall II’s will and codicil. 

Vickie is Marshall II’s widow and was one of his three surviving heirs. The 

Marshall defendants’ requested declaration that “Vickie Lynn Marshall has no 

right to estate property of J. Howard Marshall II” and that she “had no agreement 

or contract for half of J. Howard Marshall II’s estate” falls within the plain 

meaning of the Act’s provisions allowing declaratory judgment claims to 

determine each interested party’s rights and how to properly and comprehensively 

administer Marshall II’s estate. Stern’s protestations that Vickie had opted to only 

pursue tort claims to recover in a different forum does not vitiate the probate 
41

court’s broad ability to adjudicate claims and resolve questions related to the 

administration of an estate. 

We hold that the trial court did not err in concluding that appellees’ 

demonstrated a justiciable controversy to support their request for declaratory 

relief.

B. Declaration of Non-Liability and Prior Pending Action 

Stern next argues that “[g]ranting declaratory relief was erroneous in this 

case because it was impermissibly used to defeat Pierce’s potential and actual tort 

liability in California.” In support, he cites several cases for the proposition that it 

is error for trial courts to exercise jurisdiction over a declaratory judgment action 

seeking to determine tort liability. See Abor v. Black, 695 S.W.2d 564, 566–67 

(Tex. 1985) (trial court should decline to exercise jurisdiction over a declaratory 

judgment suit that seeks to determine potential tort liability because exercising 

jurisdiction will deprive the “real plaintiff of the traditional right to choose the time 

and place of suit”); Averitt v. PriceWaterhouseCoopers, L.L.P., 89 S.W.3d 330, 

333-34 (Tex. App.—Fort Worth 2002, no pet.) (reversing declaratory judgment 

and dismissing claim because “PWC’s use of the Act to determine potential tort 

liability was improper”); Hous. Auth. v. Valdez, 841 S.W.2d 860, 865 (Tex. App.

—Corpus Christi 1992, writ denied) (error to bring declaratory judgment 

counterclaim to adjudicate tort liability); Stein, 950 S.W.2d at 174 (“In general, a 
42

potential defendant may not use a declaratory judgment to determine potential tort 

liability”). This is particularly true when, as here, the defendant files a declaratory 

judgment counterclaim after the plaintiff takes a nonsuit. Tex. Elec. Utils. Co. v. 

Rocha, 762 S.W.2d 275 (Tex. App.—El Paso 1989, writ denied) (improper to 

bring declaratory action after nonsuit to attempt to litigate potential liability); 

K.M.S. Research Labs. v. Willingham, 695 S.W.2d 564, 566 (Tex. App.—Dallas 

1982, no writ) (“litigation of liability by a potential defendant in a tort action is an 

improper use of declaratory judgment legislation”). 

Relatedly, Stern argues that the declaratory judgment counterclaims were 

also erroneous because the Act is not available to settle disputes, i.e., Vickie’s 

tortious interference claims, already pending before a different forum in a different 

court. 

Appellees respond that their “declaratory judgment counterclaims did not 

ask the court to determine their potential tort liability.” Rather, they argue, they 

“asked for declarations concerning [Marshall II]’s estate plan and the parties’ 

rights to his assets [pursuant to] TEX. CIV. PRAC. & REM. CODE ANN. §§37.004–

37.005.” 

We agree with appellees. Stern does not complain that the Marshall 

defendants actually requested a declaration of non-liability for a tort from the 

Texas probate court. Instead, he complains that Pierce was able to use a 
43

declaration in the Texas probate court to defeat a tort award in California. But our 

concern here is whether the probate court properly found the Marshall defendants’ 

requested declarations to be within the gamut of the Texas Declaratory Judgment 

Act, not whether those declarations–once obtained—could be used elsewhere for a 

different purpose. 

C. Timeliness

Finally, Stern argues that the Marshall defendants’ “declaratory judgment 

action, filed five weeks after Vickie nonsuited her claims and almost five months 

into the trial, were not timely filed since Vickie had an absolute right to her 

nonsuit.” He argues that Vickie timely objected to the new counterclaims, and 

proved that the new pleadings substantively changed the nature of the case and 

trial, were prejudicial and a surprise.” 

A court must allow pleadings to be amended during trial “when the 

presentation of the merits will be subserved thereby and the objecting party fails to 

satisfy the court that the amendment would prejudice that party in maintaining the 

action or defense on the merits.” State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 

658 (Tex. 1994) (citing TEX. R. CIV. P. 66). “A court may not refuse a trial 

amendment unless (1) the opposing party presents evidence of surprise or 

prejudice, or (2) the amendment asserts a new cause of action or defense, and thus 
44

is prejudicial on its face.” Id. (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 

S.W.2d 938, 939 (Tex.1990)).

The burden of showing surprise or prejudice rests on the party resisting the 

amendment. Id. If the trial amendment is not mandatory, then the decision to 

permit or deny the amendment rests within the sound discretion of the trial court. 

TEX. R. CIV. P. 66; Greenhalgh, 787 S.W.2d at 939. In such a case, the court’s 

decision to allow or deny a trial amendment may be reversed only if it is a clear 

abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex. 1980).

Because Stern is proceeding without a reporter’s record, he cannot meet his 

burden of showing “surprise or prejudice” and we presume the record supports the 

trial court’s exercise of its discretion. See Christiansen v. Prezelski, 782 S.W.2d 

842, 843 (Tex. 1990) (per curiam). We also conclude that the amendments were 

not prejudicial on their face. The Marshall defendants’ declaratory judgment 

counterclaims concerned the very topics already at issue before the court and were 

issues that Vickie put at issue in the Texas probate court and the federal courts. In 

this situation, Stern cannot demonstrate that allowing the Marshall defendants to 

add their counterclaims was an abuse of discretion. See Kilpatrick, 874 S.W.2d at 

658 (holding that trial amendment adding new cause of action was not prejudicial 

on its face because it involved the same subject matter and trial court could have 
45

reasonably believed that the trial amendment did not impair defendant’s ability to 

present defense). 

THE JUDGMENT

The remainder of Stern’s complaints concern the trial court’s judgment. 

Specifically, Stern complains that the judgment contains recitations adjudicating 

rights that are not supported by the pleadings, the verdict, or the law. 

“The judgment of the court shall conform to the pleadings, the nature of the 

case proved and the verdict, if any, and shall be so framed as to give the party all 

the relief to which he may be entitled either in law or equity.” TEX. R. CIV. P. 301. 

A. Conforming to the Pleadings

Stern argues that aspects of the judgment do not conform to the pleadings. 

By electing to proceed with this appeal without a reporter’s record, however, Stern

has waived any complaint about the judgment not conforming to the pleadings. 

See Gutierrez v. Gutierrez, 86 S.W.3d 721, 729 (Tex. App.—El Paso 2002, no 

pet.) (recognizing that appellate court cannot determine if unpleaded issue has been 

tried by consent without reporter’s record).

B. Abandonment v. Nonsuit

The final judgment recites throughout that Vickie shall take nothing against 

various defendants because of “her non-suit and abandonment of such claims” that 

were, or could have been, brought against those defendants. Stern argues that this 
46

is erroneous, as her nonsuiting certain claims under Rule 162 of the Texas Rules of 

Civil Procedure, see TEX. R. CIV. P. 162 (“At any time before the plaintiff has 

introduced all of his evidence other than rebuttal evidence, the plaintiff may 

dismiss a case or take a non-suit.”), is not an abandonment of those claims under 

Rule 165, see TEX. R. CIV. P. 165 (“A party who abandons any part of his claim or 

defense, as contained in the pleadings, may have that fact entered of record.”). 

Stern concedes that, “in some circumstances the nomenclature might be 

immaterial,” but argues that that such is not the case here, given her pending 

claims in California at the time of the nonsuit and the California court’s reliance on 

the probate court’s judgment to dismiss her claims in California. 

Appellees argue that the judgment does not specifically identify the claims 

that it deems abandoned, such that the abandonment findings “do not have the 

effect Stern fears of preventing Vickie from recovering on her claim against Pierce 

in California.” They point to this Court’s observation that the difference between a 

nonsuit and abandonment is “largely academic, because it is a rare situation in 

which a defendant is harmed by such action.” C/S Solutions, Inc. v. Energy Maint. 

Servs. Group LLC, 274 S.W.3d 299, 307 n.7 (Tex. App.—Houston [1st Dist.] 

2008, no pet.). Finally, they contend that we should not disturb the judgment 

because the “practical effect of either designation is the same – any claim Vickie 

had concerning J. Howard’s estate was foreclosed and could not be brought later 
47

because the estate was closing and the probate court had exclusive jurisdiction over 

those claims.” 

The parties appear in agreement that Vickie nonsuited certain claims, and 

that the reference to abandonment in the judgment is not correct. The parties focus 

on the impact of the abandonment language, and disagree about whether it caused 

the California court to rule that her tortious interference claim against Pierce in 

California was precluded by the Texas probate court’s judgment. It is not within 

our purview to assess the effect of a Texas judgment on a California court

proceeding. Rather, we only determine whether there is error in the judgment we 

are reviewing on appeal. Given Stern’s argument that this case presents the rare 

situation in which this misnomer matters (the correctness of which we do not 

opine), as well as the parties’ agreement that judgment’s reference to 

“abandonment” of claims is erroneous, we reform the judgment to eliminate the 

phrase “and abandonment” from paragraphs 3.26, 2.27, 2.28, 3.29, 3.31, 3.32, and 

3.33 of the judgment, and to replace the word “abandoned” with “nonsuited” in 

paragraph 3.24. See TEX. R. APP. P. 43.2(b); see also In re Estate of Tyner, 292 

S.W.3d 179, 283 (Tex. App.—Tyler 2009, no pet.) (“We have the authority to 

modify incorrect judgments when the necessary information is available for us to 

do so.”); Monk v. Pomberg, 263 S.W.3d 199, 208 (Tex. App.—Houston [1st Dist.] 

2007, no pet.) (“When an appellant raises an issue challenging a matter that may be 
48

resolved by the modification of the trial court’s judgment, a court of appeals may 

modify the trial court’s judgment.”). 

C. Compulsory Counterclaims

Stern contends that the probate court erred in entering “judgment that Vickie 

take nothing against Pierce individually as to any claims that should have been 

brought against him as ‘compulsory counterclaims,’ including claims relating to J. 

Howard’s intent to make a gift to Vickie from his property during his life.” Stern 

argues that the judgment is worded such that it renders judgment against Vickie on 

her tortious interference claims that were pending in California. Stern asserts that 

these claims cannot be compulsory counterclaims in Texas probate court because 

the claims were already pending in California. TEX. R. CIV. P. 97(a) (claims 

pending elsewhere are not compulsory counterclaims). Finally, Stern complains 

that the findings in the probate court’s judgment related to compulsory 

counterclaims are unlawfully vague and run afoul of the purpose of a judgment: “to 

define in clear, specific and unambiguous terms the duties or obligations imposed 

upon a party.”

Stern’s complaints are specifically lodged at the following recitations in the 

judgment:3

 

3

Stern also complains of the language of paragraph 3.2, but that section of the 

judgment does not relate to counterclaims. 
49

3.1. This Court has exclusive and dominant jurisdiction over (1) 

all claims regarding the property owned by J. Howard Marshall II; (2) 

the Last Will and Testament of J. Howard Marshall II, dated the 22nd 

day of December 1992; (3) the Codicil to Last Will and Testament of 

J. Howard Marshall II, dated the 11th day of June 1993; ( 4) the 

Amended and Restated Living Trust Indenture dated the 13th day of 

July 1994; (5) all prior wills, codicils, and trusts executed by J. 

Howard Marshall II; (6) all affirmative claims and all filed and 

possible compulsory counterclaims raised by J. HOWARD 

MARSHALL III and VICKIE LYNN MARSHALL; and (7) all 

plaintiffs’ and defendants’ claims raised and that could have been 

raised against the Estate of J. Howard Marshall II, concerning the 

making of any inter vivos or testamentary gift or transfer by J. 

Howard Marshall II of any of his property.

3.34. The Court finds that any and all claims by VICKIE 

LYNN MARSHALL against the Estate of J. HOWARD MARSHALL 

II or against the property in the J. Howard Marshall, II, Living Trust, 

including but not limited to claims that J. HOWARD MARSHALL II 

intended but failed to give her or to leave her any portion of such 

property during his life or upon his death, were required by law to 

have been asserted as compulsory counterclaims in this proceeding 

pursuant to TEX. R. CIV. P. 97. The Court further finds that the jury 

answered the foregoing questions that J. HOWARD MARSHALL II 

possessed mental capacity as required by law when he executed the 

Amended and Restated Living Trust indenture dated the 13th day of 

July 1994 and that the jury has failed to find that said execution was 

procured through undue influence exercised by E. PIERCE 

MARSHALL. The Court further finds that the jury answered the 

foregoing questions that J. HOWARD MARSHALL II possessed 

testamentary capacity as required by law when he executed the Last 

Will and Testament of J. Howard Marshall, II, dated the 22nd day of 

December 1992, and that the jury has failed to find that said execution 

was procured through undue influence exercised by E. PIERCE

MARSHALL. The Court further finds that all defendants are also 

entitled to a take-no thing judgment based on any claim that VICKIE 

LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, should have

made in this proceeding as a compulsory counterclaim.
50

3.35. IT IS, THEREFORE, ORDERED, ADJUDGED, AND 

DECREED by the Court as a matter of law that VICKIE LYNN 

MARSHALL, A/K/A ANNA NICOLE SMITH, does not possess any 

interest in and is not entitled to possession of any property within the 

Estate of J. HOWARD MARSHALL II or any property of the J. 

Howard Marshall, II, Living Trust because of any representations, 

promises, or agreements made by J. HOWARD MARSHALL II to or 

with VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH;

3.36. IT IS FURTHER ORDERED, ADJUDGED, AND 

DECREED by the Court as a matter of law that any and all claims that 

have been or should have been asserted by VICKIE LYNN

MARSHALL A/K/A ANNA NICOLE SMITH, based upon alleged 

representations, promises, or agreements made by J. HOWARD 

MARSHALL II to or with VICKIE LYNN MARSHALL, A/K/A

ANNA NICOLE SMITH, have been disposed of in this proceeding;

3.37. IT IS FURTHER ORDERED, ADJUDGED, AND 

DECREED by the Court that J. HOWARD MARSHALL II did not 

intend to give and did not give to VICKIE LYNN MARSHALL,

A/K/A ANNA NICOLE SMITH, a gift or bequest from the Estate of 

J. HOWARD MARSHALL II or from the J. Howard Marshall, II, 

Living Trust either prior to or upon his death; and

3.38. IT IS FURTHER ORDERED, ADJUDGED, AND 

DECREED by the Court that VICKIE LYNN MARSHALL, A/K/A 

ANNA NICOLE SMITH, shall take nothing from any claim that she 

should have made in this proceeding as a compulsory counterclaim 

against any of the following persons and/or legal entities: 1. E. Pierce 

Marshall;

Appellees respond that Stern’s reading of the judgment is wrong and that 

none of these provisions can be interpreted to mean that Vickie’s tortious 

interference claims against Pierce were compulsory counterclaims in the Texas 

probate court. According to appellees, Vickie’s tortious interference claims in 

California were foreclosed by “the numerous declarations in the probate judgment 
51

that validated J. Howard’s estate plan, not because tortious interference was 

compulsory in the probate court.” Appellees also note that the judgment 

recitations dealing with claims against Marshall II’s estate or Living Trust cannot 

operate to foreclose against a tort claim against Pierce individually. As for 

recitations dealing with claims against Pierce individually, appellees argue that—

because this is a probate proceeding—the compulsory counterclaims referred to 

should be interpreted as limited to “claims related to the estate.” Finally, 

Appellees dispute that the judgment is vague and argue that the probate court was 

not required to identify specifically what claims should have been brought in the 

probate proceeding.

We agree with appellees that the trial court’s rendering judgment on any of 

Vickie’s claim against Marshall II’s estate or Living Trust cannot purport to 

adjudicate or foreclose Vickie’s tortious interference claims against Pierce. As 

the Supreme Court recognized in holding that the probate exception to federal 

jurisdiction did not preclude the federal courts from exercising jurisdiction over her 

claims, Vickie’s tortious interference claims do not seek judgment to recover 

property in the probate court’s “custody,” Marshall v. Marshall, 547 U.S. 293,

296–97, 126 S. Ct. 1739–10 (2006); rather, these claims seek damages from Pierce 

individually. Thus, it necessarily follows that the probate court’s recitation in the 

judgment that any claims against the estate or Living Trust were compulsory 
52

counterclaims in the underlying proceeding cannot render Vickie’s tortious 

interference claims against Pierce individually compulsory counterclaims. We 

reject Stern’s contrary interpretation. 

The judgment’s recitation that “[t]his [Probate] Court has exclusive and 

dominant jurisdiction over . . . all claims regarding the property owned by J. 

Howard Marshall II, . . . [and] all affirmative claims and all filed and possible 

compulsory counterclaims raised by . . . VICKIE LYNN MARSHALL” is, 

however, an overly broad statement of the trial court’s jurisdiction, reserving to the 

Texas probate court exclusive jurisdiction over torts and probate claims alike 

without regard for whether those claims were subject to a prior proceeding 

elsewhere. This is erroneous. See Marshall, 547 U.S. at 313–14, 126 S. Ct. 1740

(“Texas may not reserve to its probate courts the exclusive right to adjudicate a 

transitory tort.”). Accordingly, paragraph 3.1 of the judgment is modified to read,

3.1. This Court has exclusive and dominant jurisdiction over (1) 

all claims to regarding the property owned by J. Howard Marshall II;

(2) the Last Will and Testament of J. Howard Marshall II, dated the 

22nd day of December 1992; (3) the Codicil to Last Will and 

Testament of J. Howard Marshall II, dated the 11th day of June 1993; 

( 4) the Amended and Restated Living Trust Indenture dated the 13th 

day of July 1994; (5) all prior wills, codicils, and trusts executed by J. 

Howard Marshall II; and (6) all affirmative claims and all filed and 

possible compulsory counterclaims raised by J. HOWARD 

MARSHALL III and VICKIE LYNN MARSHALL; and (7) all 

plaintiffs’ and defendants’ claims and compulsory counterclaims

raised and that could have been raised against the Estate of J. Howard 

Marshall II, concerning the making of any inter vivos or testamentary 

gift or transfer by J. Howard Marshall II of any of his property. 
53

D. The Verdict and Judgment

Stern contends that several of the probate court “findings” were erroneous, 

as they are not supported by the only jury finding relating to Vickie at trial—the 

finding that Vickie “did not have an agreement with J. Howard Marshall II that he 

would give her one-half of all his property.” Specifically, Stern complains that this 

single finding does not “support the probate court’s “broad findings, such as that 

Vickie ‘take nothing’ against Pierce individually,” and that “her husband ‘did not 

intend to give’ her a gift ‘prior to’ his death.” Stern thus asks us to reverse the 

numerous factual findings in the jury he argues were not supported by the jury’s 

verdict. See Saden v. Smith, 415 S.W.2d 450, 470 (Tex. App.—Houston [1st Dist.] 

2013, pet. denied) (holding it was error to include “fraud, defalcation, and 

embezzlement” findings in the judgment because these claims were not included in 

the pleadings, and not all the elements were submitted to the jury); Freedman v. 

Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 218 (Tex. App.—Houston [14th 

Dist.] 1989, writ denied) (concluding that finding in order was “beyond the scope 

of the jury’s verdict” reforming order to delete language, and affirming as 

modified).

Appellees disagree that the verdict does not support the judgment, and argue 

that all the findings must be viewed together to determine what the jury found with 

regard to Marshall II’s property and estate plan. 
54

We have reviewed all the paragraphs cited by Stern, and reject the 

arguments aimed at the recitations addressing (1) compulsory counterclaims 

(which we have held do not include the tortious interference claims against Pierce), 

(2) allegedly abandoned claims (which we have reformed to indicate they were 

nonsuited), and (3) Vickie’s claim to assets in the estate or Living Trust (which are 

separate from claims against Pierce’s individual assets). The only remaining 

finding that can be read to sweep too broadly is the declaration that any and any 

and all claims that “have or should have been asserted” by Vickie “based upon 

alleged representations, promises, or agreements made by J. Howard Marshall II to 

or with” Vickie have been “disposed of in this proceeding.” We accordingly 

reform the following recitation to include the limiting language found elsewhere in 

the judgment,

3.36. IT IS FURTHER ORDERED, ADJUDGED, AND 

DECREED by the Court as a matter of law that any and all claims 

against the Estate of J. HOWARD MARSHALL II or against the 

property in the J. Howard Marshall II, Living Trust that have been or 

should have been asserted by VICKIE LYNN MARSHALL A/K/A 

ANNA NICOLE: SMITH, based upon alleged representations, 

promises, or agreements made by J. HOWARD MARSHALL II to or 

with VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, 

have been disposed of in this proceeding. 
55

We otherwise reject Stern’s contention that “the judgment is too vague and 

indefinite to be enforceable” and, as such, the “Final Judgment cannot stand.”

4

ATTORNEYS’ FEES

Finally, Stern argues that the attorneys’ fees awarded against Vickie were 

erroneous and should be reversed. Only three questions presented to the jury 

involved attorneys’ fees. The first asked the jury to find “necessary expenses and 

disbursements, including reasonable attorneys’ fees, expenses and costs including 

fees paid to expert witnesses, incurred by Pierce Marshall in defending J. Howard 

Marshall, II’s December 22, 1992 Will for the purpose of having the Will admitted 

to probate?” The jury found trial legal fees of $833,000.00 and conditional 

appellate fees of $400,000.00 for an appeal to the Court of Appeals, and 

$89,000.00 for an appeal to the Texas Supreme Court. 

The second question asked the jury to find “necessary expenses and 

disbursements, including reasonable attorneys’ fees, expenses and costs including 

 

4

The parties devote significant portions of their respective briefs arguing about the 

effect of the probate court’s judgment in the California litigation, with Stern 

contending that the judgment was used to improperly foreclose Vickie’s California 

claims, while appellees urge that we should not disturb the probate judgment

because “it needs to be remembered that what Stern actually seeks is not truly any 

relief in the Texas probate court, but merely the opportunity to take yet another 

shot at relief in the federal courts in California.” Given these arguments, we 

reiterate that although we have made some reformations of the judgment, our 

review has been limited to assessing the correctness of the judgment. We do not 

ascribe any legal significance to those particular modified finding, nor should our 

modification be read to endorse or repudiate anyone’s view of the scope of the 

original judgment or judgment as reformed here. 
56

fees paid to expert witnesses, incurred by trustees Finley Hilliard and Ken Farrar in 

defending J. Howard Marshall, II’s December 22, 1992 Will for the purpose of 

having the Will admitted to probate?” The jury found trial legal fees of 

$147,500.00 and conditional appellate fees of $200,000.00 for an appeal to the 

Court of Appeals, and $44,500.00 for an appeal to the Texas Supreme Court. 

The third question asked the jury to find the “necessary expenses and 

disbursements, including reasonable attorneys’ fees, expenses and costs, incurred 

by the Temporary Administrator, Robert S. Macintyre, Jr.?” The jury answered 

$1,200,000.00.

The probate court’s judgment contains an award to Pierce consistent with the 

jury’s verdict on the cost of defending Marshall II’s will:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED 

by the Court that E. PIERCE MARSHALL have and recover from the 

ESTATE OF J. HOWARD MARSHALL II attorneys’ fees in the sum 

of EIGHT HUNDRED THIRTY-THREE THOUSAND AND N0/100 

DOLLARS ($833,000.00) for services rendered through the trial of 

this cause. In the event of an appeal by J. HOWARD MARSHALL III 

to the court of appeals, if such appeal is unsuccessful, E. PIERCE 

MARSHALL will be further entitled to recover FOUR HUNDRED 

THOUSAND AND N0/100 DOLLARS ($400,000.00) from the 

ESTATE OF J. HOWARD MARSHALL II as additional reasonable 

attorneys’ fee. In the event of an appeal by J. HOWARD 

MARSHALL III to the Supreme Court of Texas, if such appeal is 

unsuccessful, E. PIERCE MARSHALL will be further entitled to 

recover EIGHTY-NINE THOUSAND AND N0/100 DOLLARS 

($89,000.00) from the ESTATE OF J. HOWARD MARSHALL II as 

additional reasonable attorneys’ fees; 
57

The judgment also contains an award of attorney’s fees to Pierce from 

Vickie on Pierce’s declaratory judgment action:

The Court finds that, pursuant to the Uniform Declaratory Judgment 

Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.009 (Vernon 1987), E. 

PIERCE MARSHALL is entitled to an award of his reasonable and 

necessary attorneys’ fees as is equitable and just against VICKIE 

LYNN MARSHALL A/K/A ANNA NICOLE SMITH. The attorneys’

fees awarded herein against VICKIE LYNN MARSHALL A/K/A 

ANNA NICOLE SMITH are solely and exclusively based upon 

evidence relating to the attorneys’ fees incurred during the trial which 

occurred in this cause between September 18, 2000 and February 18, 

2001.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED by 

the Court that E. PIERCE MARSHALL have and recover from 

VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, 

attorneys’ fees in the sum of FIVE HUNDRED FORTY-ONE AND 

N0/100 DOLLARS ($541,000.00) for services rendered through the 

trial of this cause. In the event of an appeal by VICKIE LYNN 

MARSHALL, A/K/A ANNA NICOLE SMITH, to the court of 

appeals, if such appeal is unsuccessful, E. PIERCE MARSHALL will 

be further entitled to recover ONE HUNDRED THOUSAND AND 

N0/100 DOLLARS ($100,000.00) from VICKIE LYNN 

MARSHALL, A/K/A ANNA NICOLE SMITH, as additional 

reasonable attorneys’ fees. In the event of an appeal by VICKIE 

LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, to the 

Supreme Court of Texas, if such appeal is unsuccessful E. PIERCE 

MARSHALL will be further entitled to recover ONE HUNDRED 

THOUSAND AND N0/100 DOLLARS ($100,000.00) from VICKIE 

LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, as additional 

reasonable attorneys’ fees;

Stern first argues that this award was erroneous because “the declaratory 

judgment action on which such fees and costs are based is improper.” Because we 

have rejected Stern’s argument that appellees did not have a proper declaratory 
58

judgment action, we likewise reject the argument that the Declaratory Judgment 

Act did not provide a basis for an attorneys’ fee award. See TEX. CIV. PRAC. &

REM. CODE § 37.009 (providing that “the court may award costs and reasonable 

and necessary attorney’s fees as are equitable and just” in proceeding under 

Declaratory Judgment Act).

Stern next argues that the “determination of the amount of reasonable and 

necessary attorneys’ fees under the Act presented issues of fact that were required 

to submitted to the jury.” Stern asserts that “Pierce’s failure to request and submit 

any such issues against Vickie waives his claim for attorneys’ fees against her.” 

Appellees respond that the court was permitted to award attorneys’ fees against 

Vickie as a matter of law because “they are conclusively established by the 

evidence” and because “Vickie did not object to the fact that the jury was not being 

charged on the reasonableness and necessity of the fees, thus waiving that 

argument for the purposes of Stern’s appeal.” We agree with Stern that Pierce 

waived recovery of attorneys’ fees from Vickie by failing to request submission of 

that issue to the jury. 

The judgment identifies each claim that the trial court resolved as a matter of 

law in response to a motion for summary judgment, directed verdict, or judgment 

notwithstanding the verdict. While appellees insist that the trial court decided the 

issue of Pierce’s entitlement and the amount of attorneys’ fees from Vickie as a 
59

matter of law, such a determination was never requested, and the trial court’s 

judgment instead categorizes the attorney’s fees award against Vickie as being 

based on the jury’s verdict.5 

“Whether attorney’s fees are reasonable and necessary are fact issues that 

must be submitted to a jury.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). 

Failure of the party seeking fees to request a jury submission “regarding the 

reasonableness and necessity of” attorneys’ fees waives that recovery. RDG 

P’Ship v. Long, 350 S.W.3d 262, 277 (Tex. App.—San Antonio 2011, no pet.). 

Thus, because it is appellees who sought attorney’s fees, Vickie did not waive—by 

failing to object—her complaint about the trial court awarding attorneys’ fees 

without a finding by the jury that the fees awarded were reasonable and necessary. 

TEX. R. APP. P. 279. It was Pierce’s burden to seek a jury finding on the issue, and 

he is the party that accordingly waived the issue. RDG P’Ship, 350 S.W.3d at 277; 

see also Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 821 (Tex. 2012) 

(affirming court of appeals’ holding that prevailing party at trial was not entitled to 

a new trial on attorneys’ fees because that party failed to object to trial court’s 

 

5

The judgment is separated in sections entitled: (1) Appearances, (2) Dispositions 

Prior to Trial (identifying specific settlements and interlocutory summary 

judgments), (3) Trial of the Case (identifying directed verdicts granted and 

nonsuits, as well as awards entered on the jury’s verdict), (4) Motion for Judgment 

Notwithstanding the Verdict (identifying those granted and denied), (5) Sanctions 

Motions, and (6) Reconsideration of Discovery Sanctions. The attorney’s fees 

awarded against Vickie are in the section identifying claims entered on the jury’s 

verdict. 
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inadvertent omission of certain categories of attorneys’ fees from the jury charge). 

We reverse the attorneys’ fees awarded to Pierce from Vickie and render judgment 

that Pierce take nothing on that claim. 

CONCLUSION

We reverse the attorneys’ fees awarded to Pierce from Vickie and render 

judgment that Pierce take nothing on that claim. We reform the remainder of the 

judgment and affirm the judgment as modified.

All pending motions are dismissed as moot. 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.