The opinion
JUDGMENT
Court of Appeals
First District of Texas
NO. 01-14-00556-CV
MIKE BIRNBAUM AND BEVERLY BIRNBAUM, Appellants
V.
GENA J. ATWELL, PHYLLIS BROWNING,
PHYLLIS BROWNING COMPANY, AND MIMI WEBER, Appellees
Appeal from the 166th District Court of Bexar County. (Tr. Ct. No. 2013-CI-15152).
This case is an appeal from the final judgment signed by the trial court on March 18,
2014. After submitting the case on the appellate record and the arguments properly raised
by the parties, the Court holds that there was error in the portion of the trial court’s
judgment that awards appellate attorney’s fees without conditioning their recovery on a
successful appeal. Accordingly, the Court modifies the portions of the trial court’s final
judgment awarding attorney’s fees set forth at numbered paragraphs 2(B) through (D) and
3(B) through (D) to provide as follows:
2(B). Contingent on Defendant GENA ATWELL’s
success on appeal, for appeal to a Texas
intermediate court of appeals, the additional sum of $30,000.00
2(C). Contingent on Defendant GENA ATWELL’s
success on appeal, for preparation of a petition for
review to the Texas Supreme Court, the additional
$15,000.00
sum of
2(D). Contingent on Defendant GENA ATWELL’s
success on appeal, in the event that Texas Supreme
Court grants the petition for review and orders full
briefing on the merits, the additional sum of $25,000.00
* * *
3(B). Contingent on Defendants PHYLLIS
BROWNING, MIMI WEBER, and THE
PHYLLIS BROWNING COMPANY’s success on
appeal, for appeal to a Texas intermediate court of
appeals, the additional sum of $30,000.00
3(C). Contingent on Defendants PHYLLIS
BROWNING, MIMI WEBER, and THE
PHYLLIS BROWNING COMPANY’s success on
appeal, for preparation of a petition for review to
the Texas Supreme Court, the additional sum of $15,000.00
3(D). Contingent on Defendants PHYLLIS
BROWNING, MIMI WEBER, and THE
PHYLLIS BROWNING COMPANY’s success on
appeal, in the event that Texas Supreme Court
grants the petition for review and orders full
briefing on the merits, the additional sum of $25,000.00
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The Court further holds that there was no reversible error in the remaining portions
of the trial court’s judgment. Therefore, the Court affirms the trial court’s judgment as
herein modified.
The Court orders that the appellants, Mike Birnbaum and Beverly Birnbaum, jointly
and severally, pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered August 20, 2015.
Panel consists of Justices Jennings, Bland, and Brown. Opinion delivered by Justice Bland.
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