Bank of America, N.A. v. Karen A. Brunner, John and Jane Does Nos. 1 Through 25, as the Unknown Descendants of Ronald A. Brunner, Any Distributees of an Unsatisfied Specific Bequest Due From the Estate of Joel T. Brunner, and All Others Claiming By, Through or Under John and Jane Does Nos.1 Through 25

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00131-CV
________________

BANK OF AMERICA, N.A., Appellant

V.

KAREN A. BRUNNER, JOHN AND JANE DOES NOS. 1 THROUGH 25, AS
THE UNKNOWN DESCENDANTS OF RONALD A. BRUNNER,
DECEASED, ANY DISTRIBUTEES OF AN UNSATISFIED SPECIFIC
BEQUEST DUE FROM THE ESTATE OF JOEL T. BRUNNER, AND ALL
OTHERS CLAIMING BY, THROUGH OR UNDER
JOHN AND JANE DOES NOS. 1 THROUGH 25, Appellees
________________________________________________________________________

On Appeal from County Court at Law No. 6
Montgomery County, Texas
Trial Cause No. 23-33376
________________________________________________________________________

MEMORANDUM OPINION

Bank of America, N.A. (“Bank of America”) challenges the denial of its

interpleader petition involving funds in a checking account (the “Disputed Funds”)

of decedent, Joel T. Brunner (“Joel”). Joel’s widow, Karen A. Brunner (“Karen”)

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opposed the interpleading of the funds and filed a counterclaim 1 under the Uniform

Declaratory Judgments Act to establish herself as the rightful owner to the Disputed

Funds in the account. The trial court denied Bank of America’s interpleader and

granted Karen’s declaratory judgment motion for summary judgment and awarded

attorneys’ fees.

We hold that Bank of America was reasonable to anticipate rival claims, and

the trial court abused its discretion when it denied Bank of America’s interpleader.

As a result, we reverse the Final Judgment denying the Interpleader and granting

Karen’s motion for summary judgment on her declaratory judgment claim and award

of attorneys’ fees. We remand to the trial court for an Order granting the interpleader,

ordering the Disputed Funds be deposited into the registry of the court, discharging

Bank of America from the suit, and dismissing with prejudice Karen’s counterclaim

against Bank of America under the Uniform Declaratory Judgments Act.

Background

In August 2023, Bank of America filed its Original Petition in Interpleader

pursuant to Rule 43 against Karen A. Brunner and John and Jane Does Nos. 1

through 25, as the unknown descendants of Ronald A. Brunner, Deceased, (“Ronald

1
Throughout the record, Karen uses the term counterclaim and cross claim
interchangeably in reference to her claim under the Uniform Declaratory Judgments
Act. Unless otherwise noted in the title of a document, we will refer to Karen’s claim
under the Uniform Declaratory Judgments Act as a counterclaim.
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A. Brunner” or “Ronald”) any distributees of an unsatisfied specific bequest due

from the Estate of Joel T. Brunner, and all others claiming by, through, or under

John and Jane Does Nos. 1 through 25. See Tex. R. Civ. P. 43. The property at issue

is money deposited into a checking account, in the name of Joel T. Brunner, ending

in 9263 that totals $19,250.35 (“Disputed Funds”).

In the petition, Bank of America stated that Joel died leaving a valid Last Will

and Testament dated August 17, 1994 and made the following bequests:

a. $5,000.00 to Joel’s brother, Ronald A. Brunner;

b. $1,000.00 to Joel’s sister, Bambi Pesce;

c. $1,000.00 to Joel’s nephew, Walter H. Peters, III;

d. $1,000.00 to Joel’s niece, Heather L. Maybee;

e. $1,000.00 to Joel’s nephew, Roderick M. Maybee, IV;

f. $1,000.00 to Joel’s niece, Rachel B. Pesce; and

g. $500.00 per month to Joel’s mother, Ella May Townsend,2 until either (1)

the total distributed amount reaches $25,000.00 or (2) Ella May Townsend

dies.

The Will further directs the remainder of the estate to pass to Joel’s wife, Karen.

2
Throughout the record, Ella May Townsend is also referred to as Ella Mae
Townsend. For consistency, we will refer to her as Ella May Townsend in this
opinion.
3
The petition stated that after Joel’s passing, Karen applied to probate the Will

as a Muniment of Title in March 2023, and an Order was issued admitting the Will

as such. The Order authorized beneficiaries described in the Will to receive the assets

without administration. It specifically stated that “the persons entitled to receive a

particular asset be further entitled to deal with and treat the properties to which they

are entitled in the same manner as if the record title were vested in their name.” Per

the Petition, Karen’s counsel confirmed that specific bequests to Bambi Pesce,

Walter H. Peters, III, Heather L. Maybee, Roderick M. Maybee, IV, and Rachel B.

Pesce were satisfied. The petition also pointed to Joel’s mother, Ella May Townsend,

and his brother, Ronald A. Brunner, who both predeceased Joel. Karen further

represented to Bank of America that Joel died without any children.

According to the petition, for distribution of the Disputed Funds, Bank of

America proposed a distribution agreement that would provide assurances of

Karen’s representations; however, Karen rejected the proposal. Based on Karen’s

refusal, Bank of America anticipated rival claims to the Disputed Funds and sought

interpleader relief. Additionally, Bank of America sought reasonable attorneys’ fees

and court costs associated with the cause of action. 3

3
At the request of Bank of America, the trial court appointed an Attorney Ad
Litem to represent the remaining interpleader-defendants that are unknown but
potential beneficiaries.
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Karen filed her combined Answer; Cross Claim for Declaratory Judgment;

and Motion for Traditional Summary Judgment. Karen generally denied all

allegations and specifically denied that the proper owner of the Disputed Funds is

unknown or that an interpleader of the funds is necessary. She also requested that

Bank of America’s request for attorneys’ fees be denied.

In her filing, Karen brought a counterclaim for declaratory judgment asking

the trial court to declare that she is the rightful owner of assets of Joel’s estate. She

specifically requested the following declarations:

a. that the bequest to Ella May Townsend in Joel’s will terminated when Ella

May Townsend predeceased Joel;

b. that the bequest to Ronald A. Brunner in Joel’s will became part of the

residuary of the estate of Joel pursuant to Texas Estates Code, sections

255.152(a) and 255.153(a);

c. that the residuary of Joel’s estate passes to Karen; and

d. that the Disputed Funds titled in Joel’s name belong to Karen. Karen also

requested costs and reasonable and necessary attorneys’ fees as allowed in

section 37.009 of the Texas Civil Practice and Remedies Code.

Finally, Karen’s combined filing included a Motion for Traditional Summary

Judgment where Karen moved for summary judgment on Bank of America’s

interpleader claim and under the Uniform Declaratory Judgments Act. Karen argued

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that she demonstrated the Disputed Funds did not need to be interplead as she has

shown that all specific bequests that could be paid were paid, that Ella May

Townsend and Ronald A. Brunner predeceased Joel, that the residuary of Joel’s

estate goes to her, and that the Disputed Funds belong to her as stated in the

Muniment of Title order. Included as an exhibit is Karen’s affidavit swearing to the

same.

Karen later filed a First Supplement to Motion for Summary Judgment and a

Second Supplement to Motion for Summary Judgment, which included affidavits

from John Denton and Keith McAfee, respectively, in support of her summary

judgment and declaratory judgment request. Denton and McAfee provided

declarations that stated that Ronald predeceased Joel and left no children. Karen

argued that this further proves that Joel’s bequest to Ronald is part of the residuary

left to Karen.

In September 2023, the attorney for the unknown heirs filed a Report of the

Attorney Ad Litem and stated the following:

1. In my opinion there are no unknown heirs, minor heirs, incompetent
heirs, or heirs with a legal disability.

2. I searched online and social media, including “my heritage” but I did
not find any marriages or children of Ronald Brunner.

3. I filed my Answer on behalf of the unknown heirs, known heirs
suffering legal disability, and known heirs whose whereabouts are
unknown on August 23, 2023.

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4. The obituary of Ronald Brunner does not mention any marriage or
children. Social media does not reveal any relationships that could have
resulted in a child.

5. The declarations under the penalty of perjury of John Denton and
Keith McAfee who knew Ronald Brunner and his family for over 55
years also state that there are no children or marriages of Ronald
Brunner.

Karen filed a Third Supplement to Motion for Summary Judgment and included the

Report of the Attorney Ad Litem in support of her Motion and Declaratory Judgment

request.

In response, Bank of America filed its Objection to the Court’s Premature

Consideration of Cross Action for Declaratory Judgment, Special Exception,

Objections to Defendant’s Summary Judgment Evidence, and Response to

Defendant’s Motion for Traditional Summary Judgment. Bank of America argued

that it was premature for the trial court to consider Karen’s counterclaim for

declaratory judgment before the issue of the interpleader. Bank of America further

specially excepted to the summary judgment motion as it did not expressly state the

specific grounds for relief. According to Bank of America, Karen merely stated that

an interpleader was not necessary as “there is no dispute or genuine issue of material

fact about who the funds belong to.”

Bank of America objected to the summary judgment evidence stating that

Karen’s affidavit contained legal and factual conclusions and subjective beliefs and

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opinions. According to Bank of America, this is a substantive defect in the summary

judgment evidence and improper evidence to support her claim. Bank of America

further argued that the declarations of John Denton and Keith McAfee and the Report

of the Attorney Ad Litem were all executed or completed post-filing and lack any

evidentiary evidence relevant to the issue of interpleader relief.

Finally, in its response to Karen’s Traditional Motion for Summary Judgment,

Bank of America argued that Karen failed to disprove, as a matter of law, any

essential element of the interpleader claim. According to Bank of America, it

reasonably anticipated rival claims when it interpled due to the uncertainty of

Ronald’s bequest. As to this uncertainty, Bank of America noted that Karen failed

to present evidence that Ronald had no descendants, and Karen refused to execute

an assurance agreement. Additionally, Denton’s and McAfee’s supporting

declarations and the Report of the Attorney Ad Litem were presented after the

interpleader was filed. Bank of America contended that the Report of the Attorney

Ad Litem established a reasonable anticipation of conflicting claims. Bank of

America further argued that it timely filed its petition, did not delay, and tendered

the Disputed Funds unconditionally to the court.

Bank of America included the following as exhibits: the affidavit of Tanya L.

Randles, Group Operations Manager at Bank of America; Joel’s account profile;

Letter of Instruction and Account Closure Request; Joel’s Last Will and Testament;

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Order Admitting Will to Probate as Muniment of Title; correspondence between

Karen, and counsels for Bank of America and Karen; affidavit of Cassandra Walsh,

counsel for Bank of America; and Order Appointing Attorney Ad Litem.

Karen filed her Response to Plaintiff’s Objection to Court Consideration of

Motion for Summary Judgment; and Response to the Summary Judgment Evidence

Objections; and Reply in Support of Motion for Summary Judgment. In her

response, Karen noted that Bank of America did not object to the Court considering

her summary judgment motion on the interpleader claim. She argued all filings are

ripe for consideration, and considering both motions simultaneously is judicially

efficient. According to Karen, the evidence shows there is no dispute about the

ownership of the funds that required interpleading of the funds. Thus, she contended

she is entitled to summary judgment on both the interpleader claim and the

declaratory judgment claim.

Next, Karen argued Bank of America’s fear of an unknown heir is unfounded,

because there is no evidence of any persons owning or claiming ownership of the

Disputed Funds. Karen stated that she has personal, factual knowledge that both

individuals predeceased Joel, that her affidavit is admissible evidence, and Bank of

America’s objections to her affidavit should be overruled. Karen reiterated her

position that Bank of America was unwilling to comply with the muniment order

and transfer the funds to her, and certain statements in her affidavit are unnecessary,

9
though true. Karen then noted all the statements that were not objected to and were

thus uncontested. Karen asserted that Denton’s and McAfee’s statements are

relevant to the non-existence of rival claims, and Bank of America’s objections

should be overruled.

Finally, Karen argued that she has shown as a matter of law there are no rival

claims, and there is no genuine issue of material fact of the funds’ ownership. Karen

asserted that she has proven the elements of her declaratory relief claims, and Bank

of America is not entitled to interpleader. She argued that she demonstrated that Ella

May Townsend’s and Ronald’s gifts lapsed when both predeceased Joel, and she has

proven that she is the owner of the Disputed Funds.

Three days later, the trial court issued its Order on Bank of America’s

Objection to the Court’s Premature Consideration of Defendant’s Cross Action for

Declaratory Judgment, Special Exception to Defendant’s Motion for Traditional

Summary Judgment, Objections to Defendant’s Summary Judgment Evidence, and

Defendant’s Motion for Traditional Summary Judgment. The trial court sustained

certain objections and overruled others. The trial court sustained Bank of America’s

objection that Karen’s counterclaim and motion for summary judgment were

premature. The trial court ruled, among other things, that “Defendant’s Cross-Action

for Declaratory Judgment, and any related motions for summary judgment on the

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same action, will be reserved for consideration following a ruling on Bank of

America, N.A.’s Original Petition in Interpleader.”

On September 25, 2023, Karen filed another dispositive motion, her Motion

for Traditional Summary Judgment on Bank of America’s Interpleader. In the

Motion, Karen argued that as a matter of law the $14,250.35 (Disputed Funds less

Joel’s $5,000.00 bequest to Ronald) belongs to her and should not be interpleaded.

Karen asserted that she owns the remaining $5,000.00 as there are no rival claims

anticipated, thus interpleader is unnecessary. According to Karen, she has

demonstrated that the $14,250.35 is not subject to any rival claims, Bank of America

has not identified any rival claims, and there is no reasonable doubt in law or fact as

to the existence of any rival claims since Karen is the rightful owner of the funds.

Karen again argued all specific bequests that could have been paid were paid except

for bequests to Ella May Townsend and Ronald, since both predeceased Joel.

According to Karen, the bequests either terminated or lapsed and became part of the

residuary which passed to Karen under Joel’s will.

She included the following exhibits: Karen’s Affidavit, the Unsworn

Declarations of John Denton and Keith McAfee, Report of the Attorney Ad Litem,

Joel’s Last Will and Testament, Order Admitting Will to Probate as Muniment of

Title, and Application for Probate of Will as a Muniment of Title.

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In October 2023, Bank of America filed its Objection to the Court’s Premature

Adjudication of Ownership of the Funds, Objections to Summary Judgment

Evidence, and Response to Motions for Traditional Summary Judgment. Bank of

America argued that before deciding who is entitled to ownership and possession of

the funds, the trial court should decide the merits of Bank of America’s Original

Petition in Interpleader. Bank of America contended that the trial court previously

sustained its objection to consideration of Karen’s earlier filed Traditional Motion

for Summary Judgment and declaratory judgment action as premature. It also

asserted that Karen’s most recently filed Motion for Traditional Summary Judgment

is a reiteration of her first premature summary judgment and would inherently

adjudicate her entitlement to the funds. Bank of America further objected to Karen’s

summary judgment evidence and argued that her affidavit, the unsworn declarations

of John Denton and Keith McAfee, and Report of the Attorney Ad Litem were all

created and offered after the interpleader petition was filed. Therefore, such

evidence is precluded when used to retroactively clarify factual uncertainties that

existed at the time of interpleading. Additionally, Bank of America objected to

substantive evidence defects in Karen’s affidavit as it contained legal and factual

conclusions.

Bank of America responded to Karen’s Motions for Traditional Summary

Judgment on Interpleader. It argued that Karen failed to conclusively negate any

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essential element of the interpleader claim since Bank of America reasonably

anticipated rival claims at the time it filed the interpleader claim. According to Bank

of America, at the time of filing, it faced conflict between Joel’s Will and Karen’s

assertion that the Disputed Funds should be paid solely to her, and Bank of America

is not required to demonstrate that such conflict actually developed into rival claims.

Bank of America argued the mere anticipation is a sufficient basis for it to seek

interpleader relief as it was uncertain if Ronald had any descendants, whether all

bequests were satisfied, and the rejection of a distribution agreement. Bank of

America also argued that it did not seek to segregate the Disputed Funds but to

interplead them all.

Next, Bank of America argued that it is entitled to recover reasonable and

necessary attorneys’ fees, because it possessed the Disputed Funds as a disinterested

stakeholder. Since an interpleading party is entitled to recover its fees unless it is

personally responsible for the conflicting claims, Bank of America, as a depository

institution, argued that it claimed no ownership to the Disputed Funds and played no

part in any potential conflict.

Bank of America attached the following exhibits to its Response: Declaration

of Tanya L. Randles; Joel’s account profile; Letter of Instruction and Account

Closure Request; Joel’s Last Will and Testament; Order Admitting Will to Probate

as Muniment of Title; Correspondence between Karen and counsels for Karen and

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Bank of America; Declaration of Cassandra Walsh; and Order Appointing Attorney

Ad Litem.

Karen then filed her Reply in Support of her Motion for Traditional Summary

Judgment on Bank of America’s Interpleader. In the Reply, she argued that her

motion for summary judgment was not premature, that Bank of America had no

dispute or reasonable doubt about the ownership of $14,250.35 of the Disputed

Funds, and Bank of America is required to show rival claims exist as to the

remaining $5,000.00 and reasonable doubt about which rival claim is valid.

According to Karen, no rival claims exist, and she has shown through her summary

judgment evidence that Bank of America is not facing rival claims. Karen further

argued that regarding the $5,000.00 bequest to Ronald, she has negated rival claims,

and there is no reasonable doubt whose claim is valid because there is only one

claim.

Next, Karen argued that she has negated the essential element of reasonable

doubt as to the validity of her claim because Bank of America has not shown a

scintilla of evidence to create a genuine issue of material fact to show rival claims.

According to Karen, Bank of America must show a reasonable doubt existed in law

or fact as to which rival claims were valid. Karen also asserted that she established

no rival claims exist and interpleading the Disputed Funds into the court’s registry

is unnecessary.

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That same month, Bank of America filed its Motion to Take Judicial Notice

of the Court’s Own Records in this lawsuit, specifically, Joel’s Last Will and

Testament, Order Admitting Will to Probate as a Muniment of Title, Declarations of

Tanya Randles dated August 16, 2023, and September 14, 2023, Joel’s Account

Profile, Bank of America’s Deposit Agreement and Disclosures, Letter of Instruction

and Account Closure Request, and Section III of Karen’s Answer, Cross Claim for

Declaratory Judgment, and Motion for Traditional Summary Judgment.

Bank of America then filed its Reply in Support of Relevancy Objection to

Summary Judgment Evidence and again argued that Karen cannot use post filing

evidence to dispute Bank of America’s reasonably anticipated rival claims. It also

asserted that her declaratory judgment claim judicially admits that an ownership

question of the Disputed Funds existed. According to Bank of America, Karen’s

counterclaim for a declaratory judgment that she is the rightful owner of the Disputed

Funds established the existence of reasonable doubt when Bank of America

interpleaded, and she should not be allowed to contradict her judicial admission.

Bank of America further contended that it asked for documentation to resolve

its doubts. Yet Karen does not dispute that she rejected executing a distribution

agreement nor did she provide any evidence to support her claim to the Disputed

Funds. Therefore, Karen’s post-filing evidence is immaterial to whether Bank of

America reasonably anticipated rival claims.

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On October 19, 2023, the trial court held an evidentiary hearing on Bank of

America’s interpleader petition. At the hearing, Bank of America argued that neither

Joel’s Will nor the muniment order made it clear that Karen is entitled to the

Disputed Funds. It argued that Karen’s request that she be declared the rightful

owner of the funds established that a question existed that the Court must resolve,

and therefore interpleader was necessary.

Counsel for Karen argued that Bank of America has not established that

interpleader is necessary because it failed to establish that it faced rival claims, and

that there was a reasonable doubt in law or fact to which claim was valid. Counsel

further argued that Joel’s Will left the residuary of his estate to Karen and that Karen

had no issues collecting from other institutions. When questioned, Karen informed

Bank of America that all bequests that could be made, were made, and that Ella May

Townsend and Ronald predeceased Joel, and Ronald had no children. As a result,

there are no rival claims to Ronald’s bequest of $5,000.00, nor has Bank of America

alleged any.

The attorney ad litem stated that in her opinion, Ronald was not a descendant

of Joel, the anti-lapse statute and Estates Code dispose of Ronald’s share into the

residuary, and Karen is the owner of the Disputed Funds.

The trial court took judicial notice of its file with the understanding that it can

only take judicial notice of filings and adjudicative facts. The trial court admitted as

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evidence the business records declaration of Tanya Randles, Joel’s Will, the

Muniment Order, and the second business records declaration of Tanya Randles.

After Evan Moeller, an equity partner for the law firm representing Bank of

America, testified about attorneys’ fees, counsel for Karen moved for directed

verdict. Karen’s counsel argued that Bank of America failed to establish: (1) that

rival claims existed; and (2) that there was a reasonable doubt in law or fact as to

which claim is valid. In response, Bank of America argued that it was reasonable to

file the interpleader claim if it reasonably anticipated rival claims to the same funds.

Counsel further urged that the consideration should be at the time of the filing. Bank

of America asserted that before the filing, Karen requested that all the Disputed

Funds be distributed to her account, and Joel’s Will did not devise a specific amount

to her. It also argued that the Muniment Order and other documentary evidence made

no findings about whether any predeceased beneficiaries had heirs. According to

Bank of America, the evidence exceeds what is necessary to survive a directed

verdict and supports its entitlement to interpleader relief. In response, counsel for

Karen continued to argue that Bank of America had no evidence to believe or

anticipate rival claims at the time it filed the interpleader petition, and the directed

verdict should be granted as a matter of law.

Counsel for Karen then called the attorney ad litem, Olympia Sacaciu, to

testify. Sacaciu testified that in her research Ronald did not have any biological or

17
adopted children and was never married. She believed that Karen is entitled to the

Disputed Funds. On cross-examination, Sacaciu testified that she did not get

involved in the case until after the interpleader was filed, and her investigation began

after she was appointed.

Next, Karen testified and stated that Joel, her husband, passed away on March

4, 2023. She explained that all the specific gifts made in Joel’s Will were paid except

for two, which was the gift to his mother who passed in 2003, and the gift to his

brother Ronald who passed in 2013. Karen testified that Ronald was five years older

than Joel, and during the time she knew Ronald, he did not have a wife or kids. Karen

acknowledged that under Joel’s Will, she is the beneficiary of the remainder of his

estate, other than the specific gifts. On cross-examination, Karen testified that she

refused to sign a distribution agreement as requested by Bank of America.

On October 23, 2023, the trial court signed an Order denying Bank of

America’s request for interpleader. The next day, Karen filed her Motion for No-

Evidence and Traditional Partial Summary Judgment on her Declaratory Judgment

Claim. In the Motion, Karen pleaded for the following declarations:

a. that the bequest to Ella May Townsend in Joel’s Will terminated when Ella

May Townsend predeceased Joel;

b. that the bequest to Ronald in Joel’s Will became part of Joel’s residuary

estate pursuant to Texas Estates Code, sections 255.152(a) and 255.153(a);

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c. that the residuary of Joel’s estate passes to Karen; and

d. that the Disputed Funds titled to Joel belong to Karen.

Karen argued that Bank of America has no evidence that Ronald A. Brunner

left any descendants and no evidence that anyone other than Karen owns the

Disputed Funds. Karen also moved for traditional summary judgment providing that

all specific bequests were paid except those to Ella May Townsend, whose specific

bequest terminated under the terms of the Will, and Ronald, whose specific bequest

became part of the residuary of Joel’s estate, that the residuary of Joel’s estate passes

to Karen, and that the Disputed Funds belong to Karen. Karen argued there is no

genuine issue of material fact about the requested declarations.

Attached as exhibits are Joel’s Last Will and Testament, Order Admitting Will

to Probate as Muniment of Title, Karen’s Affidavit, Unsworn Declaration of John

Denton and Keith McAfee, Report of Attorney Ad Litem, Order denying

interpleader relief, Declaration of Tanya L. Randles, Joel’s Account Profile, Decree

Admitting Ella May Townsend’s Will to Probate, Karen’s Answer, Claim for

Declaratory Judgment and Motion for Traditional Summary Judgment, and

Application for Probate of Will as a Muniment of Title.

Bank of America filed its Response to Defendant’s Motion for No-Evidence

and Traditional Partial Summary Judgment on her Declaratory Judgment Claim and

argued that Karen’s counterclaim under the Uniform Declaratory Judgments Act is

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not the proper use of the Act to prove her entitlement to summary judgment.

According to Bank of America, an interpleader, not a declaratory judgment, is the

proper way to determine the ownership of the property at issue and only seeks to

determine ownership rights, which is already at issue by the interpleader petition.

Bank of America further argued that Karen’s counterclaim is barred by the mirror

image rule and she is using the declaratory action to recover otherwise unrecoverable

attorneys’ fees. Further, Karen, not Bank of America, bears the burden to prove

ultimate ownership, and she cannot do so with a no-evidence motion for summary

judgment.

That same day, Bank of America filed its Answer and Special Exceptions to

Karen’s Cross Claim for Declaratory Judgment and generally denied the allegations

and specially excepted to her entire Cross Claim for Declaratory Judgment because

it failed to state a viable claim under the Uniform Declaratory Judgments Act. Bank

of America also asked the trial court to award reasonable and necessary attorneys’

fees.

Karen filed her Reply in Support of her Motions for Summary Judgment on

her Declaratory Judgment Claim. She argued Bank of America did not provide

evidence of another owner of the Disputed Funds and failed to disprove any element

of her declaratory judgment claims. Karen contended that because the interpleader

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was denied, there is no pending suit to determine the ownership of the Disputed

Funds; therefore, her request for declaratory relief is proper.

On November 16, 2023, the trial court signed an Order on Karen’s Motion for

Partial Summary Judgment and made the following declarations: (1) the specific

bequest to Ella May Townsend set forth in Decedent Joel Brunner’s will terminated

under its own terms because Ella May Townsend predeceased Joel Brunner; (2) the

specific bequest to Ronald A. Brunner became a part of the residuary of the estate

of Joel Brunner pursuant to Texas Estates Code, section 255.153(a) and 255.152(a);

(3) under Joel Brunner’s will, the residuary of his estate passes to Karen A. Brunner;

and (4) the funds held by Bank of America titled in Joel Brunner’s name belong to

Karen A. Brunner. The Order stated that recovery of Karen’s reasonable and

necessary attorneys’ fees under the Declaratory Judgment Act remained pending.

Bank of America then filed its Motion for Reconsideration of Order Denying

Interpleader Relief and argued that Karen only presented the bank with Joel’s Will

and the Muniment Order, which did not provide the necessary information to

determine the residuary’s value. Bank of America argued that it properly sought to

interplead the Disputed Funds because it reasonably anticipated rival claims when

Karen refused to execute a distribution agreement that would hold her accountable

if her representations were inaccurate. Bank of America further argued that Karen’s

declaratory judgment action judicially admits that Bank of America was reasonable

21
to question her right to the Disputed Funds. Additionally, Bank of America

contended that it provided sufficient evidence that it incurred significant attorneys’

fees because of Karen’s strategy and requested the court award the amount

requested. Bank of America attached the transcript from the October 19, 2023,

evidentiary hearing to its motion.

Bank of America later filed its Combined Response to Karen’s Objection to

Submission Hearing and Reply in Support of its Special Exceptions. In the filing,

Bank of America argued that the court should consider its special exceptions on

November 16, and that the denial of interpleader relief does not validate Karen’s

declaratory judgment counterclaim as it did not present any new controversies and

was used to recover attorneys’ fees. On November 20, 2023, the trial court signed

an Order Overruling Bank of America’s Special Exception to Karen’s Declaratory

Judgment Act claim.

Karen then filed her Response to Bank of America’s Motion for

Reconsideration of the Court’s Order Denying Interpleader. In the Response, Karen

argued that the trial court should deny Bank of America’s request since it failed to

meet its burden of proof for interpleader by establishing (1) that it was facing rival

claims for the Disputed Funds and (2) that reasonable doubt existed in law or fact as

to which claim was valid. Karen further argued that her Declaratory Judgments Act

claim is not a judicial admission that Bank of America was reasonable in questioning

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her right to the Disputed Funds. Rather, it only shows that Bank of America failed

to give her the Disputed Funds, and she brought legal action to do so.

Bank of America then filed its Reply in Support of its Motion for

Reconsideration of Order Denying Interpleader Relief and argued that it only had to

show that reasonable grounds existed to anticipate rival claims and that Karen is the

sole cause of the interpleader action by failing to obtain declarations in the probate

proceedings to establish Joel’s residuary estate.

On November 30, 2023, the trial court signed an Order Denying Bank of

America’s Motion for Reconsideration of the Denial of its Interpleader Claim.

On February 15, 2024, a trial was held on Karen’s attorneys’ fees. Counsel

for Karen testified that he has practiced law for twenty-nine years and his rates are

customarily charged in Montgomery County for suits involving declaratory

judgments and actions related to wills and assets of the decedent. Karen prevailed in

her request for declaratory relief, and counsel testified that the court could award

reasonable and necessary fees as is equitable and just.

On the same day as the trial, Bank of America filed its Bench Brief on

Attorneys’ Fees. In the brief, Bank of America argued that the work attributed to

Karen’s declaratory judgment counterclaim was unnecessary, as the counterclaim

was entirely unneeded. Bank of America urged the trial court to find that equity

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weighed against awarding Karen attorneys’ fees since Karen chose not to

incorporate declaratory relief into the muniment order.

On February 23, 2024, the trial court signed its Final Judgment. The Final

Judgment incorporated the Order denying Bank of America’s interpleader and the

Order granting Karen’s summary judgment on the substance of her declaratory

judgment claim by reference. The sole remaining claim for trial was the recovery of

attorneys’ fees under the Uniform Declaratory Judgments Act, and the trial court

found it was equitable and just to award Karen her reasonable and necessary

attorneys’ fees, and it would not be equitable or just to award Bank of America’s

fees against Karen. The trial court also found that it was equitable and just that Karen

recovers her costs of court from Bank of America and awarded $6,867.50 in

reasonable and necessary attorneys’ fees plus 8.5% post-judgment interest annually

from the date of judgment until fully paid. The trial court further awarded attorneys’

fees in the event of appeal with post-judgment interest.

This appeal followed.

On appeal, Bank of America challenges the denial of its interpleader and the

granting of Karen’s summary judgment. Bank of America argues that it reasonably

anticipated rival claims to the Disputed Funds when Karen refused to provide

adequate assurance that the gift to Ronald had lapsed, and Karen’s counterclaim for

declaratory judgment seeking the Disputed Funds was barred by the mirror-image

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rule as an effort to recover attorneys’ fees. Finally, Bank of America challenges

Karen’s award of attorneys’ fees.

Standard of Review

We utilize an abuse of discretion standard of review of a trial court’s ruling

on an interpleader action. See Bryant v. United Shortline Inc. Assurance Servs., 972

S.W.2d 26, 31 (Tex. 1998). When presented with conflicting claims to money it

holds, a stakeholder may apply to a court for protection, because the stakeholder

does not know which claimant to pay and fears exposure to multiple liabilities for

the single stake. See Clayton v. Mony Life Ins. Co. of Am., 284 S.W.3d 398, 401

(Tex. App.—Beaumont 2009, no pet.); see also Tex. R. Civ. P. 43. By placing the

money in the court’s control for the court to decide ownership in a proper

interpleader, the stakeholder is relieved from potential liability to pay the single fund

more than once, and from litigation costs attending the rival claims. Clayton, 284

S.W.3d at 401.

At common law a petitioner in interpleader had to prove that he: (1) was

subject to, or has reasonable grounds to anticipate, rival claims to the same funds;

(2) did not unreasonably delay filing the interpleader action; and (3) unconditionally

tendered the funds into the registry of the trial court. Fort Worth Trans. Auth. v.

Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018); Olmos v. Pecan Grove Mun. Utility

Dist., 857 S.W.2d 734, 741 (Tex. App.—Houston [14th Dist.] 1993, no writ). That

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said, we have previously explained, “Rule 43 expressly disclaims certain pre-rule

restrictions imposed on interpleader practice. The Rule extended and liberalized the

equitable remedy of interpleader. Interpleader under Rule 43 requires only

conflicting claims.” Clayton, 284 S.W.3d at 402 (internal quotations omitted) (citing

Tex. R. Civ. P. 43; State Farm Life Ins. Co. v. Martinez, 216 S.W.3d 799, 806–07

(Tex. 2007)) (other citation omitted). Delay or failure to unconditionally tender the

funds may implicate the interpleader’s right to attorney’s fees, but not its right to

interplead the funds. See Martinez, 216 S.W.3d at 807 (“Thus while delay may bar

recovery of attorney’s fees and incur the statutory penalties, only the absence of rival

claims justifies continuing statutory penalties after interpleader occurs.”). Under

Rule 43, to interplead the funds into the court’s registry, all the disinterested

stakeholder must show is that it was subject to or reasonably anticipated rival claims.

See Tex. R. Civ. P. 43; Fort Worth Trans. Auth., 547 S.W.3d at 850. Courts must

consider the circumstances at the time the interpleader petition is filed. Fort Worth

Trans. Auth., 547 S.W.3d at 850 (discussing in the context of jurisdiction). “[E]very

reasonable doubt should be resolved in favor of the stakeholder’s right to

interplead.” Bryant, 972 S.W.2d at 31 (citation omitted).

Generally, an interpleader involves two stages. Clayton, 284 S.W.3d at 402

(citations omitted). “In the first stage, the court determines whether interpleader is

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appropriate.” Id. If the interpleader is determined to be appropriate, the second stage

involves the rival claimants litigating their differences. Id.

Analysis

Here, both Bank of America and Karen agree that whether Bank of America

had reasonable grounds to anticipate rival claims to the same funds, is at issue. Bank

of America bore the burden of proof to establish that it had reasonable grounds to

anticipate rival claims. Olmos, 857 S.W.2d at 741. We consider the circumstances

at the time Bank of America filed its interpleader petition. Fort Worth Trans. Auth.,

547 S.W.3d at 850.

With its interpleader, filed on August 17, 2023, Bank of America provided

several pieces of evidence including the Declaration of Tanya L. Randles, Joel’s

Boss-Checking Profile, Bank of America’s Deposit Agreement and Disclosures,

Joel’s Will, Order Admitting Will to Probate as Muniment of Title, emails between

counsel for Bank of America and Karen’s counsel, Decree admitting Ella May

Townsend’s Will to Probate, and the Declaration of Cassandra Walsh. The

interpleader states that Joel died on March 4, 2023, and Joel’s Will is dated August

17, 1994. The documents submitted reveal that correspondence between counsel for

Bank of America and Karen began in June 2023. In an email dated June 26, 2023,

counsel for Bank of America requests confirmation from Karen’s counsel that the

following eight bequests listed in Joel’s Will were satisfied:

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1. All of [Joel]’s debts have been paid;
2. $5,000 was paid from the Estate to [Joel]’s brother, Ronald A.
Brunner;
3. $1,000 was paid from the Estate to [Joel]’s sister, Bambi Pesce;
4. $1,000 was paid from the Estate to [Joel]’s nephew, Walter H.
Peters, III;
5. $1,000 was paid from the Estate to [Joel]’s niece, Hea[]ther L.
Maybee;
6. $1,000 was paid from the Estate to [Joel]’s nephew, Roderick M.
Maybee, IV;
7. $1,000 was paid from the Estate to [Joel]’s niece, Rachel B. Pesce;
and
8. [Joel]’s mother, Ella May Townsend, predeceased [Joel] and, thus,
the specific bequest to Ella May Townsend is satisfied.

Karen’s counsel confirms that the bequests were satisfied, to which counsel for Bank

of America responds that he will be in touch once the account is cleared.

On June 26, 2026, counsel for Bank of America requested a copy of Ella May

Townsend’s death certificate. In a response that included Karen, Karen’s counsel

provided a link to Joel’s online obituary that references that Ella May Townsend

predeceased Joel, and asked Karen if she had a copy of Ella May Townsend’s death

certificate. That same day, Karen replied only to her counsel and stated she did not

have a copy of Ella May Townsend’s death certificate, that Ronald handled Ella May

Townsend’s estate matters, and that Ronald passed away in 2013. Karen’s counsel

replied and included counsel for Bank America and asked if the obituary along with

Karen’s statement would suffice. Karen replied with a link of Ella May Townsend’s

probate record on file with the Harris County Clerk.

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On June 30, 2023, counsel for Bank of America provided an update that stated

Ella May Townsend’s probate records were not available through the website, the

records were ordered, and requested they provide any documents Karen may have.

Karen’s counsel responded that seeing the filing on the website should be enough to

prove that Ella May Townsend predeceased Joel.

On July 7, 2023, Karen’s counsel followed up with an email stating that seeing

the filing online should suffice to show that Ella May Townsend predeceased Joel,

stated that he did not know why Bank of America would not immediately comply

with the Court’s order and provide the assets to Karen, and inquired as to what Karen

needed to do to collect the Disputed Funds. Counsel for Bank of America advised

that they were awaiting the probate documents.

On July 21, 2023, counsel for Bank of America informed Karen’s counsel that

Ella May Townsend’s probate records were received, and again asked for

confirmation that the above-mentioned eight bequests were satisfied and

confirmation that the Disputed Funds were payable to Karen according to the Will

and the terms of the Order Admitting Will to Probate as Muniment of Title. That

same day, Karen’s counsel responded, “Actually – reading more closely – Ronald

Brunner died in 2013 (predeceasing [Joel]).”

On July 31, 2023, Karen’s counsel requested an update from Bank of

America, and on August 7, 2023, Karen emailed counsel for Bank of America. She

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noted the previous confirmation and stated the Ronald passed away penniless in

2013, she did not have his death certificate, and he died intestate. Karen added that

she and Joel paid for Ronald’s funeral; therefore, she believed bequest was

technically honored. That same day, counsel for Bank of America inquired if Ronald

left any descendants at the time of his passing to which Karen responded that Ronald

never married and had no children. Karen then asked why Bank of America asked

about Ronald’s descendants.

Later that evening, Karen’s counsel informed Karen that Bank of America

was likely inquiring as to Ronald’s descendants to determine whether the anti-lapse

statute applied, and since Ronald predeceased Joel without descendants, Ronald’s

gift lapses and passes under the residuary provision to Karen. Karen’s counsel then

asked Bank of America when it would comply with the Muniment Order and give

Karen the Disputed Funds.

Also included with Bank of America’s interpleader, is the Declaration of

Cassandra Walsh, counsel for Bank of America. Walsh stated that on August 9,

2023, she spoke with Karen’s counsel and proposed a Distribution, Release, and

Indemnity Agreement. The Declaration stated that the agreement would (1) provide

assurances that the representations made by Karen and her counsel regarding

satisfaction of the bequests and that Ronald A. Brunner died in 2013 with no

descendants, and (2) facilitate distribution of the Disputed Funds. The Declaration

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stated that Karen’s counsel confirmed that Karen would not execute such an

agreement.

In the interpleader, Bank of America stated that because of Karen’s rejection

of the Distribution, Release, and Indemnity Agreement, it reasonably anticipated

rival claims to the Disputed Funds and filed suit.

“Under Rule 43, the innocent stakeholder needs only show that he is or he

may be exposed to double or multiple liability as a result of conflicting claims

justifying a reasonable doubt as to which claimant is entitled to the funds.” Allstate

Ins. v. Felts, No. 09-92-00239-CV, 1993 WL 367053, at *3 (Tex. App.—Beaumont

Sept. 16, 1993, writ denied) (mem. op., not designated for publication). It is clear

that Bank of America was concerned about a descendant of Ronald bringing a claim

for the bequest made to him in Joel’s Will. Karen provided contradictory information

when she initially confirmed that all bequests, including the bequest to Ronald, were

satisfied, but later stated that Ronald predeceased Joel. It was only after the

discussion regarding Ella May Townsend’s estate that Karen informed Bank of

America that Ronald also predeceased Joel, but she could provide no documentation

of his estate or descendants. Karen also refused to execute a Distribution, Release,

and Indemnity Agreement that Ronald died with no descendants. Although Karen

included a self-serving affidavit, dated August 23, 2023, in which she swore that

Ronald died without a will and descendants, the affidavit was included with Karen’s

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answer and executed after Bank of America filed its interpleader on August 17, 2023.

This is also true for the supporting declarations of Denton and McAfee. Therefore,

considering the evidence provided at the time Bank of America filed its interpleader

and resolving every reasonable doubt in favor of its right to interplead, we hold that

it was reasonable for Bank of America to anticipate rival claims as to the Disputed

Funds, and the trial court abused its discretion by denying Bank of America’s request

for interpleader. See Fort Worth Trans. Auth., 547 S.W.3d at 850; Bryant, 972

S.W.2d at 31.

We sustain Bank of America’s first issue.

Next, Bank of America argues that Karen’s counterclaim for declaratory

judgment is barred by the mirror-image rule and having sustained Bank of America’s

first issue, we agree.

In her request for declaratory relief, Karen requested the following

declarations under Texas Civil Practice and Remedies Code section 37.005:

1. that the specific bequest to Ella May Townsend terminated under Joel

Brunner’s Will when Ella May Townsend predeceased Joel Brunner;

2. that the specific bequest to Ronald Brunner became part of the residuary

of the estate of Joel Brunner pursuant to Texas Estates Code, sections

255.153(a) and 255.152(a);

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3. that the residuary of the estate of Joel Brunner passes to Karen A.

Brunner; and

4. that the funds in the hand of Bank of America titled in Joel Brunner’s

name belong to Karen Brunner. The trial court granted Karen’s requests

and made the declarations requested in an Order dated November 16,

2023.

Karen’s counterclaim with a request for declarations included the same subject-

matter before the trial court through Bank of America’s interpleader and sought to

be determined in the second phase of the interpleader. See Clayton, 284 S.W.3d at

402 (citations omitted) (explaining that interpleader is decided in two phases, the

first phase determines if interpleader is appropriate and the second phase determines

the rightful claimant). Bank of America put the rightful claimant and proper

distribution of the Disputed Funds at issue through its interpleader and therefore,

Karen’s counterclaim seeking declaratory relief was improper. See Koch Oil Co. v.

Wilber, 895 S.W.2d 854, 866 (Tex. App.—Beaumont 1995, writ denied) (citing John

Chezik Buick v. Friendly Chevrolet, 749 S.W.2d 591, 594–95 (Tex. App.—Dallas

1988, writ denied) (explaining that a declaratory judgment is not available to issues

in a pending suit that present no new controversies)). Thus, we sustain Bank of

America’s second issue.

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In its third issue, Bank of America challenges Karen’s award of attorneys’

fees under the Uniform Declaratory Judgments Act. Having sustained Bank of

America’s challenge to Karen’s counterclaim for declaratory judgment and

determined that Karen’s counterclaim seeking declaratory relief was improper, we

further hold that Karen is therefore not entitled to attorneys’ fees under the Uniform

Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009

(authorizing costs and attorney’s fees in any proceeding under Chapter 37).

Therefore, we sustain Bank of America’s third issue. 4

Conclusion

In conclusion, having determined that the trial court abused its discretion in

denying Bank of America’s interpleader, we reverse the Final Judgment of the trial

court. We further reverse the trial court’s Order granting Karen’s counterclaim for

Declaratory Judgment Motion for Summary Judgment and award of attorneys’ fees.

We remand to the trial court for an Order granting the interpleader, ordering the

Disputed Funds be deposited into the registry of the court, discharging Bank of

4
In its fourth and final issue, Bank of America waived its right to attorneys’
fees as an interpleader plaintiff. See Fort Worth Transp. Auth. v. Rodriguez, 547
S.W.3d 830, 850 (Tex. 2018) (explaining that an innocent stakeholder is entitled to
attorneys’ fees to be paid out of the interpleaded funds). We therefore do not address
Bank of America’s right to attorneys’ fees.

34
America from the suit, and dismissing with prejudice Karen’s counterclaim against

Bank of America under the Uniform Declaratory Judgments Act.

REVERSED AND REMANDED.

W. SCOTT GOLEMON
Chief Justice

Submitted on October 23, 2025
Opinion Delivered May 14, 2026

Before Golemon, C.J., Wright and Chambers, JJ.

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