Opinion

John Bryan Langdon v. Leslie Mathison Gilbert

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Sep 24, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

Reference to incorrect version of statute excused; Texas follows a fair notice standard, which looks to whether Page 131 the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.

How later courts described this case

Reference to incorrect version of statute excused; Texas follows a fair notice standard, which looks to whether Page 131 the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.
Appellate timetables do not run from the date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal.

Written by the judges who cited it.

The opinion

ACCEPTED

03-15-00305-CV

5651450

THIRD COURT OF APPEALS

AUSTIN, TEXAS

September 24, 2015 6/12/2015 10:06:06 AM

JEFFREY D. KYLE

CLERK

APPELLATE CASE NO. 03-15-00305-CV

RECEIVED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

JOHN BRYAN LANGDON

6/12/2015 10:06:06 AM

Appellant JEFFREY D. KYLE

Clerk

LESLIE MATHISON GILBERT

Appellee

On Appeal from the

County Court at Law Number Two of Travis County, Texas

APPELLANT BRIEF

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon

Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy

Attn: John M. Davidson Attn: Tom Murphy

16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W

Spring, Texas 77379 Austin, Texas 78759

(281) 251-7900 (512) 477-5680

(281) 251-7909 Fax (512) 493-0691 Fax

Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com

Trial Attorney and Trial Attorney and

Presumed Appellee Counsel for Gilbert Appellate Counsel for Langdon

TABLE OF CONTENTS

PAGE

Identity of Parties and Counsel ……………………………………………………... 1

Table of Contents ……………………………….………………………………… 2

Index of Authorities ………………………………………………………………. 3

Statement of Case ………………………………………………………………… 6

Issues Presented …………………………………………………………………... 7

Statement of Facts ………………………………………………………………… 8

Summary of Arguments ………………………………………………………….. 11

Argument ………………………………………………………………………… 13

I. Are attorneys’ fees awardable to a prevailing

party for a Bill of Review …………......................... 13

II. Was the trial court’s Granting of an Order for the

Notice of Non-Suit without Prejudice

in the Underlying Suit Appropriate? ……………… 19

III. Did the trial court improperly enter a Final,

Appealable Order/Judgment? ………………...…… 21

Conclusion and Prayer……………………………………………………………. 23

Certificate of Compliance ………………………………………………………... 25

Certificate of Service …………………………………………………………….. 26

Appendix ………………...………………………………………………………. 27

INDEX OF AUTHORITIES

PAGE

1A TexJur Actions §49 and §62 ………………………………………………… 17

34 TexJur Equity §2 ……………………………………………………………...17

Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884

(Tex. App. – Dallas 209, no pet.) ……………………………………………….. 14

Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas 1992, no writ) …… 18

Black’s Law Dictionary, 10th ed. (2014) ………………………………............... 16

CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d 674, 688

(Tex. App. – Fort Worth 2013, pet. granted, judgm’t vacated w.r.m.) …. 13 and 15

Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627

(Tex. App. – San Antonio 2011, no pet.) ……………………………………….. 14

Franzetti v. Franzetti, 120 S.W.2d 123, 125-26

(Tex. App. – Austin 1938, no writ) ………………………………………………17

G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs.,

930 S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied) ................................ 15

Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174

(Tex. 1992) .…………………………………..…………………………………… 15

Hill v. Thompson & Knight, 756 S.W.2d 824, 826

(Tex. App. – Dallas 1988, no writ) ……………………………………….……… 15

In Re Smith, 2007 Tex. App. LEXIS 1153 *4

(Tex. App. – Houston [1st Dist.] 2007, no pet.) …………………………………... 17

Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655

(Tex. 2009) …………………...………………………………………………….. 16

Kessler v. Kessler, 693 S.W.2d 522, 525

(Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.) ………………………………..20

Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799

(Tex. 1974) ...…………………….............................................................................. 13

Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299

(Tex. App. —San Antonio 1999, pet. denied) ……………………………..18 and 19

Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392

(Tex. App.-Houston [1st Dist.] 2004, no pet.) ……………………………. 20 and 21

MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663

(Tex. 2009) ………………………………………………………………………... 13

Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58

(Tex. 2008) ………………………………………………………………………. 13

Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982) …………………….. 18 and 19

Mitchell v. LaFlamme, 60 S.W.3d 123, 130

(Tex. App. – Houston [14th Dist.] 2000, no pet.) ……………………………….... 14

Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C.,

126 S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ……….. 19

Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03

(Tex. App.--Austin 1981, no writ) ……………………………………………….. 18

Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64

(Tex. App.-Houston [1st Dist.] 1992, no writ) …………………………… 20 and 21

Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104, 108

(Tex. 2010) ..………………………………………………………………………. 14

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593

(Tex. 1996) ………………………………...……………………………………… 13

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866

(Tex. 2010) ………………………………………………………………...16 and 17

TEXAS RULES OF CIVIL PROCEDURE PAGE

TEX. R. CIV. P. §54 …………………………………………………….. 14 and 15

TEX. R. CIV. P. §329b(d) ….…………………………………………………... 19

TEX. R. CIV. P. §329b(f) ………………………………………………………...16

STATEMENT OF CASE

1) Nature of the case. This is an appeal of a summary judgment for a Bill of

Review. The Underlying Suit is related to the rental of real property with a

cause of action for failure to return rental security deposit and unjust

enrichment related to a leasehold.

2) Name of the trial judge. Honorable Todd T. Wong

3) Trial court. County Court at Law Number Two of Travis County, Texas

4) Disposition in the trial court. The trial court rendered a summary judgment

against Appellee, Leslie Mathison Gilbert entering an Agreed Order to grant

a Bill of Review. The underlying judgment was in Cause No. C-1-CV-13-

009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default

judgment rendered on or about March 19, 2014.

After granting the Bill of Review, Appellee non-suited the Underlying Suit

after the trial court’s plenary power expired in the Underlying Suit.

Appellee subsequently filed a Motion for Summary Judgment for an Order

determining whether or not attorneys’ fees can be awarded for a Bill of

Review. The Order granting Appellee’s Motion for Summary Judgment

regarding the issue of attorneys’ fees also included a Mother Hubbard Clause

that made the Order/Judgement final and appealable without a determination

of the merits of the Underlying Suit.

5) Parties in the trial court. John Bryan Langdon was the Plaintiff; Leslie

Mathison Gilbert was the Defendant.

ISSUES PRESENTED

1. Are attorneys’ fees awardable to a prevailing party for a Bill of Review?

2. Was the trial court’s granting of an Order for the Notice of Non-Suit without

Prejudice in the Underlying Suit Appropriate?

3. Did the trial court improperly enter a Final, Appealable Order/Judgment?

STATEMENT OF FACTS

The Appellee filed suit against the Appellant for damages related to the failure

to provide an accounting and refund of a security deposit in Cause No. C-1-CV-13-

009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default

judgment rendered on or about March 19, 2014.

In that cause, Appellant was found liable for bad faith in failing to provide an

accounting and refund of Appellee’s security deposit of $4,000.00, as well as retaining

an overpayment of rents in the amount of $1,500.00. Attorney’s fees, a civil penalty

of $100.00 and trebling of damages of $12,000.00 was entered against Appellant.

In filing the Underlying Suit, Appellee tendered service of process to the Texas

Secretary of State, alleging that the Secretary of State was the agent for Appellant

because Appellant had not designated or maintained a resident agent for service in

Texas, that he engaged in business in Texas, does not maintain a regular place of

business in Texas, and that the lawsuit arose from Appellant’s business in Texas. As

such, Appellee alleged that the Secretary of State was the proper agent for service.

Upon serving the Secretary of State, Appellee was required to provide the

Secretary of State a document that contains a statement of the name and address to

deliver Notice of Citation to Appellant.

Appellee provided the Secretary of State the following address: 275 2nd Ave.,

Long Branch, New Jersey 07740. This address was not the address of Appellant.

Appellant’s correct address was 275 2nd Ave. Front, Long Branch, New Jersey

07740.

On April 24, 2014, thirty-six (36) days after the Default Judgment, Appellant

filed a Bill of Review to set aside or vacate the Default Judgment alleging due

process violation for improper service by providing the Secretary of State the wrong

address to serve Appellant.

On July 28, 2014, the trial court denied Appellant’s Motion for Summary

Judgment for a Bill of Review and granted Appellee’s Motion for Summary

Judgment to deny a Bill of Review.

Appellant filed an appeal of the trial court’s original Order granting

Appellee’s Motion for Summary Judgment denying a Bill of Review.

On December 31, 2014, this Court issued a Memorandum Opinion that

reversed the trial court’s judgment and remanded for further consideration.

On January 30, 2015, Appellant filed another Motion for Summary Judgment

to have a Bill of Review granted. On March 27, 2015, Appellee conceded that a Bill

of Review should be granted. On April 2, 2015, the trial court entered an Agreed

Order granting Summary Judgment for a Bill of Review. However, the Agreed

Order denied attorneys’ fees with a later trial date to determine the amount of

attorneys’ fees, if any, were to be awarded. There was not a determination of the

merits of the Underlying Suit.

On April 2, 2015, Appellant filed a Notice of Non-Suit without Prejudice. On

April 8, 2015, the trial court signed an Order granting the Non-Suit without Prejudice

for the Underlying Suit.

On April 20, 2015, Appellee filed a Motion for Summary Judgment seeking

a ruling that attorneys’ fees are not awardable for a Bill of Review. On May 12,

2015, the trial court entered an Order granting Appellee’s Motion for Summary

Judgment ruling that recovery of attorneys’ fees in a Bill of Review is not

recoverable for a Bill of Review. In the Order granting Appellee’s Summary

Judgment, the trial court signed the Order with a Mother Hubbard Clause making it

a final, appealable order without a determination of the merits of the causes of action

in the Underlying Suit.

SUMMARY OF ARGUMENT

The general rule is that litigants must pay their own attorneys’ fee. However,

when authorized by statute, contract, or equity, then attorneys’ fees may be awarded.

The parties entered into a contract that provided that the prevailing party in

any legal proceeding is to be awarded attorneys’ fees and cost, thereby creating an

exception to the general rule and authorizes an award of attorneys’ fees.

Additionally, on April 8, 2015, the trial court signed an Order granting a

Notice of Non-Suit without Prejudice in the Underlying Suit. The trial court did not

have authority to enter an Order of Dismissal for the Underlying Suit because the

trial court’s plenary power had expired. The only way to make a determination of

the causes of action in the Underlying Suit, is in a Bill of Review, and where the

movant in a Bill of Review prevails, the judgment previously entered is set aside,

and a new judgment, based on the evidence heard on the bill of review, must be

entered. Resultantly, the trial court had no authority to enter an Order of Dismissal

for the Underlying Suit.

Appellant pled for attorneys’ fees and prevailed on the Bill of Review, and,

therefore, should have been awarded attorneys’ fee. In the alternative, the trial court

improperly entered an Order that included a Mother Hubbard Clause that prevented

a determination of the merits of the causes of action in the Underlying Suit, and

therefore, a determination of the prevailing party, which would also determine an

award of attorneys’ fees based upon the merits because attorneys’ fees can be

awarded in a Bill of Review to the same extent that attorneys’ fees could be awarded

in the Underlying Suit.

ARGUMENT

I. Are Attorneys’ Fees Awardable to a Prevailing Party for a Bill of Review?

1. General Rule to Award Attorneys’ Fees

The general rule is that litigants must pay their own attorneys’ fee. MBM Fin.

Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009). However,

recovery of attorneys’ fees is permitted when authorized by statute, contract between

the litigants, or under equity. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d

55, 58 (Tex. 2008); Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974).

Such authorization must be express and cannot be implied. Travelers Indem. Co. v.

Mayfield, 923 S.W.2d 590, 593 (Tex. 1996).

The parties entered into a lease agreement that provided that “[a]ny person

who is a prevailing party in any legal proceeding brought under or related to the

transaction described in this lease is entitled to recover prejudgment interest,

attorney’s fees, cost of service, and all other costs of the legal proceeding from the

non-prevailing party.” Lease Agreement at ¶29 (Appendix # 1). Since the parties

entered into a contractual agreement that authorized an award of attorneys’ fee, then

an exception to the general rule is created. Accordingly, attorneys’ fee can be

awarded to the prevailing party of a legal proceeding provided the legal proceeding

was related to the contract. See, e.g., CenterPlace Props., Ltd. v. Columbia Med.

Ctr., 406 S.W.3d 674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t

vacated w.r.m.). Whether attorneys’ fees are available under a contract is a question

of law that is reviewed de novo. Fitzgerald v. Schoeder Ventures II, LLC, 345

S.W.3d 624, 627 (Tex. App. – San Antonio 2011, no pet.)

2. Prerequisites for Recovery of Attorneys’ Fee Met

A party must plead for attorneys’ fee. Alan Reuber Chevrolet, Inc. v. Grady

Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.). A party

should also specify the authority under which the party claims it is entitled to recover

attorneys’ fee, but if the party fails to do so, the party may still recover attorneys’

fee only if (1) the party pleads facts that support a claim for attorneys’ fee or (2) the

opposing party does not object to the failure to identify the authority. Mitchell v.

LaFlamme, 60 S.W.3d 123, 130 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

Appellant pled for attorneys’ fees in his Second Amended Petition for Bill of Review

at ¶30 (Appendix #2) and identified the Lease Agreement as the authority. Moreover,

Appellee made no objection to any failure to identify the authority for attorneys’

fees. Consequently, Appellant satisfactory pled for attorneys’ fee.

Appellant must also satisfy all conditions precedent. Solar Applications Eng’g

v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010). In Appellant’s Second

Amended Petition for Bill of Review at ¶4, he specifically pled “All conditions

precedent to Plaintiff’s right to recover has been performed or has occurred.” This

satisfies the requirement of all conditions precedent. Tex. R. Civ. P. §54. A Rule 54

pleading, shifts the burden of pleadings (not of proof) to the Appellee to specifically

deny conditions precedent that have not occurred and a simple denial that some

conditions precedent have not occurred is not satisfactory. Id.; Greathouse v.

Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174 (Tex. 1992); Hill v. Thompson &

Knight, 756 S.W.2d 824, 826 (Tex. App. – Dallas 1988, no writ). At no time did

Appellee specifically deny any conditions precedent. Resultantly, all conditions

precedent have been satisfied for the recovery of attorneys’ fees.

It is further axiomatic that Appellant was represented by an attorney, as

evidenced by the trial court record and appellate record. There is also evidence of

attorneys’ fees being incurred, as evidenced by the Attorneys’ Fee affidavit

submitted as part of Appellant’s second Motion for Summary Judgment as Exhibit

B (Appendix #3). As for proving whether or not the fees were reasonable and

necessary, that question could not be answered because of the trial court’s Order

ruling that attorneys’ fee could not be recovered in a Bill of Review.

The final requirement that must be met is whether or not a Bill of Review is a

legal proceeding related to the contract instituted and meet the requirement of the

contractual provisions. See, e.g., CenterPlace Props., Ltd., 406 S.W.3d at 688; G.

Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930 S.W.2d 124, 130 (Tex.

App. – Tyler 1996, writ denied). The Lease Agreement provides for “[a]ny person

who is a prevailing party in any legal proceeding brought under or related to the

transaction described in this lease is entitled to recover prejudgment interest,

attorney’s fees, cost of service, and all other costs of the legal proceeding from the

non-prevailing party.” Lease Agreement at ¶29 (Appendix # 1).

3. Prevailing Party

The Lease Agreement does not define “prevailing party”. If the Lease

Agreement does not define who is a prevailing party, the trial courts will apply the

term’s ordinary meaning. Intercontintental Grp. v. KB Home Lone Star, L.P., 295

S.W.3d 650, 655 (Tex. 2009). A plaintiff is a prevailing party, under an ordinary

meaning, if the trial court awarded plaintiff an enforceable judgment in the form of

monetary damages or equitable relief. Id. at 653. The trial court granted Appellant

equitable relief by signing an Agreed Order granting a Bill of Review. 1 Accordingly,

Appellant was the prevailing party.

4. Legal Proceeding Related to the Contract

Likewise, there can be no question that a Bill of Review, although

occasionally described as an ‘equitable remedy’, nonetheless qualifies as a “legal

proceeding”. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010).

Black’s Law Dictionary, 10th ed. defines the term “legal proceeding” as follows:

Any proceeding authorized by law and instituted in a court or tribunal to

acquire a right or to enforce a remedy.

Appellee conceded that a Bill of Review should be granted with the filing of her Response to

Appellant’s second Motion for Summary judgment filed on March 27, 2015. (Appendix #4)

Given that the Bill of Review procedure is specifically authorized by TRCP 329b(f),

to acquire the right to belatedly set aside an invalid judgment, there can be little

question that Appellant’s Bill of Review qualifies as a “legal proceeding” under the

Black’s definition. Travelers, ibid.

This is especially so in Texas – despite any superficial labelling of Bill of

Review as an equitable remedy – because our state’s unique legal heritage means

that it does not, and never has, recognized any meaningful division between law and

equity. See 1A TexJur Actions §49 and §62, and 34 TexJur Equity §2, citing

Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. – Austin 1938, no writ):

The distinctions between law and equity have never obtained in Texas…At

most, the distinction in this states is a narrow one. In some aspects it may be

said to be more one of form than of substance.

Given such antecedents, it is of little surprise that a Texas court has explicitly

stated that "[a] bill of review is an independent legal proceeding brought to set aside

a judgment that is no longer appealable" (emphasis added). In Re Smith, 2007 Tex.

App. LEXIS 1153 *4 (Tex. App. – Houston [1st Dist.] 2007, no pet.). Resultantly, a

Bill of Review is a legal proceeding.

Furthermore, this legal proceeding is related to the transaction of renting the

leasehold. Appellee originally sued, in the Underlying Suit, for a cause of action

related to the security deposit. See Appellee’s First Amended Petition (Appendix

#5). Subsequently, Appellant filed his Bill of Review to set aside the default

judgment, which too is related to the security deposit, and therefore related to the

transaction of renting the leasehold. As such, the legal proceeding was related to the

transaction, and therefore, Appellant was entitled to a determination of his attorneys’

fees for being the prevailing party in the Bill of Review.

5. Attorneys’ Fees are Awardable in a Bill of Review

There is authority allowing for the recovery of attorneys’ fees in a Bill of

Review. A party who successfully prosecutes a Bill of Review is entitled to recover

attorney's fees if attorneys' fees are authorized in the prosecution or defense of the

Underlying Suit. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. - Dallas 1992,

no writ) citing Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982). Attorney's fees

are recoverable in a Bill of Review proceeding to the same extent as attorneys’ fees

were recoverable at trial of the Underlying Suit. Lowe v. Farm Credit Bank of Texas,

2 S.W.3d 293, 299 (Tex. App. —San Antonio 1999, pet. denied); See also Meece,

631 S.W.2d at 730; Bakali, 830 S.W.2d at 257; Rodriguez v. Holmstrom, 627 S.W.2d

198, 202-03 (Tex. App.--Austin 1981, no writ).

In the Underlying Suit, there is a basis for an award of attorneys’ fees.

Appellee sued for failure to provide an accounting of a security deposit. On February

18, 2014, Appellee filed a Motion for Default Judgment Motion for Default

Judgment and presented as evidence the lease agreement. (Appendix #6). Appellant

has recognized that attorneys’ fees were awardable to the prevailing party based

upon the lease agreement. The lease agreement is the authority for an award of

attorneys’ fees for either party in the Underlying Suit.

Since the trial court could have awarded Appellant attorney's fees at the trial

of the Underlying Suit, then Appellant is entitled to attorneys’ fees in this Bill of

Review. Lowe, 2 S.W.3d at 299; Meece, 631 S.W.2d at 730. In our case, Appellant

could have been awarded attorney’s fees under the terms of the lease agreement.

Therefore, attorneys’ fees are awardable to Appellant, if he is the prevailing party in

his Bill of Review because there is authority for an award of attorneys’ fees in the

Underlying Suit based on the lease agreement.

II. Was the Trial Court’s Granting of an Order for the Notice of Non-Suit without

Prejudice in the Underlying Suit Appropriate?

The trial court did not have authority to enter an Order granting a Non-Suit

without Prejudice. On March 19, 2014 (Appendix #7), the trial court granted a

default judgment. Absent a motion that extends the trial court's plenary power, the

trial court has plenary power to modify its final judgment or order within 30 days of

signing it, and the trial court loses jurisdiction to modify its judgment after the 30

days had expired. TEX. R. CIV. P. 329b(d); Moore Landrey, L.L.P. v. Hirsch &

Westheimer, P.C., 126 S.W.3d 536, 538-39 (Tex. App. - Houston [1st Dist.] 2003,

no pet.). Since there was not any filing that would extend the trial court’s plenary

power, then its plenary power expired on April 18, 2014.

Once plenary power has expired, the trial court loses jurisdiction to modify its

judgment. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392

(Tex. App. - Houston [1st Dist.] 2004, no pet.).

However, on April 8, 2015 the trial court entered the Order granting the Non-

Suit without Prejudice (Appendix #8). This was not an effective modification of the

March 19, 2014 judgment because it was outside the trial court's plenary power. Id.

at 392. Accordingly, the trial court had no authority to sign an Order granting Non-

Suit without Prejudice.

This is important because Appellee’s Non-Suit without Prejudice in the

Underlying Suit, was an attempt on the part of Appellee to cut off attorneys’ fees by

trying to contend that because of the Non-Suit without Prejudice in the Underlying

Suit occurred, there was no basis for an award of attorneys’ fees in the Underlying

Suit.

However, any subsequent determination of Appellee’s cause of action in the

Underlying Suit can only be determined through the Bill of Review. “[A] final

judgment in a bill of review action should either deny any relief to the petitioner or

grant the bill of review and set aside the former judgment, insofar as it is attacked,

and substitute a new judgment which properly adjudicates the entire controversy.”

Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex. App. - Houston [1st

Dist.] 1992, no writ) (citing Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. -

Corpus Christi 1985, writ ref'd n.r.e.).

Appellee’s attempt to Non-Suit the Underlying Suit is ineffective because the

trial court lacked plenary power to modify its Orders/Judgment after plenary power

has expired. Martin, 176 S.W.3d at 392. Resultantly, attorneys’ fees can be awarded

in a Bill of Review because the issues in the Underlying Suit must now be

determined with a new judgment through the Bill of Review.

III. Did the trial court Improperly Enter a Final Order/Judgment?

The trial court should not have entered an Order/Judgment that was final and

appealable because it prevents an adjudication of the issues of Underlying Suit.

As stated above, “[A] final judgment in a bill of review action should either

deny any relief to the petitioner or grant the bill of review and set aside the former

judgment, insofar as it is attacked, and substitute a new judgment which properly

adjudicates the entire controversy." Shahbaz, 827 S.W.2d at 64. By entering a final

and appealable Order/Judgment before an actual determination of the merits of the

causes of action, then Court prevented an adjudication of the entire controversy, in

violation of Appellant’s right to have a determination of the merits of a causes of

action in the Underlying Suit in his Bill of Review action.

This of course would lead to a fact that neither party was not a prevailing party

at the time the trial court entered its final and appealable in the Bill of Review action.

However, this is acceptable because this matter would be remanded back to the trial

court to permit the parties to have a determination of the merits of the causes of

action in the Underlying Suit, determine who the prevailing party is, and a

determination of attorneys’ fees, which could be awarded in the Underlying Suit,

and therefore in the Bill of Review action.

CONCLUSION AND PRAYER

A party that successfully prosecutes or defends a Bill of Review can be

awarded their attorneys’ fees if there is a basis to award them in the Underlying

Suit.

The parties entered into a lease agreement that provides for the prevailing

party in a legal proceeding be awarded their attorneys’ fees. This creates an

exception to the general rule is that litigants must pay their own attorneys’ fee.

Appellant satisfied the conditions required by the lease agreement to be awarded

attorneys’ fees. Appellant was the prevailing party, as the trial court granted the

Bill of Review, which Appellee also conceded that a Bill of Review should be

granted. The Underlying Suit and the Bill of Review were related to the transaction

of leasing the leasehold, and a Bill of Review is legal proceeding. Moreover, it is

clear that attorneys’ fees are permissible in a Bill of review if they could be awarded

in the Underlying Suit. In this case, attorneys’ fees could have been awarded to

Appellant in the Underlying Suit based on the lease agreement.

The trial court’s granting of the Order for the Notice of Non-Suit without

Prejudice is without effect because the trial court’s plenary power had expired, and

therefore, had no authority to modify the judgment in the Underlying Suit. As such,

a determination of the merits of the causes of action of the Underlying Suit can only

be made through a Bill of Review, which means a determination of the prevailing

party and that attorneys’ fees are awardable in a Bill of Review because attorneys’

fees could be awarded in the Underlying Suit.

In the alternative, the trial court improperly entered a final appealable Order

that prevented a determination of the merits of the causes of action in the Underlying

Suit, and a determination of the prevailing party. As such, this matter should be

remanded back to the trial for a determination of the amount of attorneys’ fees to be

awarded; or remanded back for a trial on the merits for a determination of the merits

of the causes of action for the Underlying Suit, including a determination of

attorneys’ fees for the prevailing party.

CERTIFICATE OF COMPLIANCE

I, Tom Murphy, certify that this computer-generated document that is subject

to a word limit under Tex. R. App. P. 9.4(i) that the number of words in the

document is 5248. I hereby certify that I am relying on the word count of the

computer program used to prepare the document.

By: _______________________________

Tom Murphy

Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: ________________________________

Tom Murphy

TSB # 24013217

9600 Great Hills Trail, Ste. 150W

Austin, Texas 78759

(512) 477-5680

(512) 493-0691 Fax

Email: tom@tommurphyslaw.com

Attorney for Appellant Langdon

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was delivered to the

following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Evans Kosut Davidson, PLLC Court of Appeals

Attn: John M. Davidson Third District of Texas

16000 Stuebner Airline Rd., Ste. 200 Attn: Jeffrey D. Kyle, Clerk of the Court

Spring, Texas 77379 PO Box 12547

(281) 251-7900 Austin, Texas 78711-2547

(281) 251-7909 Fax

Email: jdavidson@ekklaw.com

Trial Attorney and Presumed

Appellate Counsel for Gilbert

____________________________________

Tom Murphy

APPENDIX

Appendix #1. Copy of the Lease Agreement

Appendix #2. Copy of the Second Amended Petition for Bill of Review

Appendix #3. Copy of Exhibit B (Attorneys' Fees) of Motion for Summary

Judgment

Appendix #4. Appellee's Response to Appellant's Motion for Summary

Judgment

Appendix #5. Appellee's First Amended Petition

Appendix #6. Motion for Default Judgment

Appendix #7. Final Judgment in the Underlying Suit

Appendix #8. Order Granting Appellee’s Notice of Non-Suit without Prejudice

Appendix #9. TEX. R. CIV. P. 54

Appendix #10. TEX. R. CIV. P. 329b(d)

Appendix #11. TEX. R. CIV. P. 329b(f)

Appendix #12. 1A TexJur Actions §49 and §62

Appendix #13. 34 TexJur Equity §2

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287

S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas

1992, no writ)

Appendix #16. Black’s Law Dictionary, 10th ed. (2014)

Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d

674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t

vacated w.r.m.)

Appendix #18. Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627

(Tex. App. – San Antonio 2011, no pet.)

Appendix #19. Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. –

Austin 1938, no writ)

Appendix #20. G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930

S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied)

Appendix #21. Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174

(Tex. 1992)

Appendix #22. Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. –

Dallas 1988, no writ)

Appendix #23. In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. –

Houston [1st Dist.] 2007, no pet.)

Appendix #24. Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d

650, 655 (Tex. 2009)

Appendix #25. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus

Christi 1985, writ ref'd n.r.e.)

Appendix #26. Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974)

Appendix #27. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex.

App. —San Antonio 1999, pet. denied)

Appendix #28. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d

390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.)

Appendix #29. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663

(Tex. 2009)

Appendix #30. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58

(Tex. 2008)

Appendix #31. Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982)

Appendix #32. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App. –

Houston [14th Dist.] 2000, no pet.)

Appendix #33. Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126

S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no

pet.)

Appendix #34. Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App. -

Austin 1981, no writ)

Appendix #35. Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex.

App.-Houston [1st Dist.] 1992, no writ)

Appendix #36. Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104,

108 (Tex. 2010)

Appendix #37. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.

1996)

Appendix #38. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010)

APPENDIX

4109 Michael Ne ill

Re~denUalLease~ncerning: ~~~~~~~~~~~~~~=u=s~t=i~n~~T=~~~7~8~7~3~0~~~~~~~~~~~~~

B. For the purposes of paying rent and any late charges, the mailbox is not the agent for receipt for Landlord (the

postmark date is not the date Landlord receives the payment). The parties agree that the late charge is based on a

reasonable estimate of uncertain damages to the Landlord that are incapable of precise calculation and result from

late payment of rent. Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies

under Paragraph 27.

7. RETURNED PAYMENT: Tenant will pay Landlord$ 25. 00 for each payment Tenant tenders to

Landlord which is returned or not honored by the institution on which it is drawn for any reason, plus any late charges

.until landlord receives payment. Tenant must make any returned payment good by paying such amount(s) plus any

associated charges in certified funds.

8. APPLICATION OF FUNDS: Regardless of any notation on a payment Landlord may apply funds received from Tenant

first to any non-rent obligations of Tenant. including but not limited to late charges returned payment charges repairs,

brokerage fees periodic utilities, pet charges, and then to rent.

9. PETS:

A. Unless the parties agree otherwise in writing, .I.enanLm~.ru:ll_p_ermi.t.....fMlll temporarily,_am(_p.et_mL1M Property

(including but not limited to any mammal, reptile, bird, fish, rodent, or insect}.

B. If Tenant violates this Paragraph 9 or any agreement to keep a pet on the Property, Landlord may take all or any of

the following action:

(1) declare Tenant to be in default of this lease and exercise Landlord's remedies under Paragraph 27;

(2) charge Tenant, as additional rent, an initial amount of$ and $ - -- - -- --

per day thereafter per pet for each day Tenant violates the pet restrictions;

(3) remove or cause to be removed any unauthorized pet and deliver it to appropriate local authorities by providing

at least 24-hour written notice to Tenant of Landlord's intention to remove the unauthorized pet; and

(4) charge to Tenant the Landlord's cost to:

(a) remove any unauthorized pet;

(b) exterminate the Property for fleas and other insects;

(d) repair any damage to the Property caused by the unauthorized pet.

C. When taking any action under Paragraph 98 Landlord will not be liable for any harm, injury, death, or sickness to

any pet.

10. SECURITY DEPOSIT:

A . Security Deposit: On or before execution of this lease, Tenant will pay a security deposit to Landlord in the amount

of$ 3, 000 . 00 . "Security deposit" has the meaning assigned to that term in §92.102, Property

Code.

B. Interest: No interest or income will be paid to Tenant on the security deposit. Landlord may place the security

deposit in an interest-bearing or income-producing account and any interest or income earned will be paid to

Landlord or Landlord's representative.

C. Bfilun.d.: Tenant must give Landlord at feast thirty (30) days written notice of surrender before Landlord is obligated

to refund or account for the security deposit.

Notices about Security Deposits:

(1) §92.108, Property Code provides that a tenant may not withhold payment of any portion of the last month's

rent on grounds that the security deposit is security for unpaid rent.

(TAR-2001) 6-1-10 Tenants: _ _ . _ _ , _ _ , _ _ & Landlord or Landlord's Representative: ~ __ Page 3 of 14

P1oduced with ZipForm~ by zlploglx 18070 Fifteen Mlle Road. F1asor, Michigan 48026 VNIW zipl ogjx com Lease Listing

REDACTED PER TRAP 9.9

APPENDIX

CAUSE NO. C-1-CV-14-003653 Filed: 4/21/2015 4:58:55 PM

Dana DeBeauvoir

JOHN BRYAN LANGDON § IN THE COUNTY COURT Travis County Clerk

Plaintiff, § C-1-CV-14-003653

§ Sophia Delacroix

v. § AT LAW #2

LESLIE MATHISON GILBERT, §

Defendant. § TRAVIS COUNTY, TEXAS

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION FOR BILL OF REVIEW

COMES NOW, John Bryan Langdon, Plaintiff complaining of Leslie Mathison Gilbert, Defendant, and for cause of

action would show the following:

I. DISCOVERY

1. Discovery in this case is intended to be conducted under Level 1 of Rule 190 of the Texas Rules of Civil

Procedure. Plaintiffs seeks monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest,

and attorney’s fees.

II. PARTIES AND SERVICE

2. Plaintiff is John Bryan Langdon, (“Mr. Langdon” or “Plaintiff”) is an individual currently residing at

1004 West Wayne St., Fort Wayne, Indiana 46802.

3. Defendant is Leslie Mathison Gilbert (“Ms. Gilbert” or “Defendant”) has already appeared and may be

served by delivery to her attorney of record pursuant to the TRCP.

III. JURISDICTION AND VENUE

4. The amount in controversy, exclusive of interest and costs, is within the jurisdictional limits of this

Court. Venue is proper in Travis County, Texas as the real property at issue and the events that gave rise to this

lawsuit are located within Travis County, Texas. All conditions precedent to Plaintiff’s right to recover has been

performed or has occurred.

IV. FACTUAL BACKGROUND

5. The Defendant filed suit in this Court against the Plaintiff for damages related to a Residential Lease

Agreement in Cause No. C-1-CV-13-009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a

default judgment rendered on or about March 19, 2014. A copy of the Default Judgment is attached hereto as Exhibit

6. In such suit, Plaintiff Mr. Langdon was found liable for bad faith in failing to provide an accounting and

refund of Ms. Gilbert’s security deposit, as well as retaining an overpayment of rents in the amount of $1,500.00.

Attorney’s fees, civil penalty and trebling of damages were also entered against Mr. Langdon.

7. In filing the suit, Ms. Gilbert tendered service of process to the Texas Secretary of State, alleging that the

Secretary of State was the agent for Mr. Langdon because Mr. Langdon has not designated or maintained a resident

agent for service of in Texas, that he engaged in business in Texas, does not maintain a regular place of business in

Texas, and that the lawsuit arises from Mr. Langdon’s business in Texas. As such, Ms. Gilbert alleges that the

Secretary of State was the proper agent for service pursuant to Tex. Civ. Prac. & Rem. Code §17.044.

8. Upon serving the Secretary of State, Ms. Gilbert, she was required to provide the Secretary of State a

document that contains a statement of the name and address to deliver Notice of Citation to Mr. Langdon, pursuant to

Tex. Civ. Prac. & Rem. Code §17.045. The return of service includes the address provided by Defendant Ms. Gilbert to

the Secretary of State. See Exhibit B.

9. Ms. Gilbert provided the Secretary of State the following address: 275 2nd Ave., Long Branch, New Jersey

07740.

10. This address was not the address of Mr. Langdon. Mr. Langdon’s correct address is 275 2nd Ave. Front,

Long Branch, New Jersey 07740.

11. Accordingly, Ms. Gilbert did not provide effective notice of citation upon Mr. Langdon.

V. BILL OF REVIEW STANDARD

12. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the

factual statements contained in the preceding paragraphs into this Section V.

13. A default judgment may be attacked by a Bill of Review after it is too late to file either an appeal or Motion

for New Trial. Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (Tex. 2012).

14. Mr. Langdon must file a sworn pleading that states the grounds for the Bill of Review. Baker v. Goldsmith,

582 S.W.2d 404, 408 (Tex. 1979). To be entitled to a hearing, the petition must make a prima facia showing of

sufficient cause, which is not defined by TRCP 329(b).

15. Mr. Langdon claims that his due-process rights have been violated by ineffective or improper service.

16. Ordinarily for a Bill of Review, a party must prove 1) a meritorious defense; 2) justification for failure to

assert the defense; and 3) no fault or negligence on the part of Mr. Langdon for the rendering of the default judgment.

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). However, when to establish sufficient cause when there is a due-

process violation claimed, Mr. Langdon is not required to prove the first two elements set out above. Mabon Ltd., 369

S.W.3d at 812; Caldwell, 154 S.W.3d 96-97.

17. Judgment rendered without proper service is a violation of due process. Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80, 86-87 (1988). Further, the third element, no fault or negligence, is conclusively established if Mr.

Langdon proves he was not served with process. Mabon Ltd., 369 S.W.3d at 812; Ross v. National Ctr. For the Empl.

Of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006). A party that did not get served with process or who did not

receive notice cannot be at fault or negligent in allowing a default judgment to be rendered. Caldwell at 154 S.W.3d at

97; Cash v. Beaumont Dealers Auto Auction, Inc., 275 S.W.3d 915, 918-19 (Tex. App. – Beaumont 2009, no pet.).

VI. ARGUMENT

18. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the

factual statements contained in the preceding paragraphs into this Section VI.

19. As previously stated, the Secretary of State was served with the citation for the underlying cause, to wit Ms.

Gilbert provided an incorrect address for Mr. Langdon, or the Secretary of State delivered citation to an incorrect

address. The Secretary of State delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. A copy of the

Secretary of State’s Return of Service is attached hereto as Exhibit B and incorporated herein by reference as if fully set

forth at length.

20. The Return of Service evidences that Citation was delivered to 275 2nd Ave., Long Branch, New Jersey

07740. However, Mr. Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740.

21. In Royal Surplus Lines v. Samaria Baptist Church, 840 S.W.2d 382, 383 (Tex. 1992), the Secretary of

State delivered citation to Defendant addressed to “1201 Bassie”, rather than “1201 Bessie”. Even though such

error was “a typographical error in the forwarding address typed by the Secretary is grounds to set aside a

default judgment based on substituted service.” In doing so, Royal Surplus cites to Uvalde Country Club v.

Martin Linen Supply Co., 690 SW2d 884, 884 (Tex. 1985), which overturned a default judgment on the hyper-

technical ‘invalid service’ grounds that the citation naming defendant’s agent omitted the “Jr.” at the end of his

name.

22. In Commission of Contracts of General Executive Committee of Petroleum Workers Union of

Republic of Mexico v. Arriba, Ltd., 882 SW2d 576, 585 (Tex. App. – Houston [1st Dist.] 1994, no pet.), is a bill

of review case where a default judgment was overturned where SOS service had been to “37 Bahia de Espiruta

Santo Esquira (at the corner of) Bahia de Ballenas”, rather than on the correct “37 Bahia de Todos Santos (at

the corner of) Bahia de Ballenas”, some three blocks away.

23. In Salzgitter v. Alexander Steel Sales, 2011 US Dist. LEXIS 52098 (S.D. Tex. May 16, 2011), long

arm service via Texas SOS found defective where address was off by one digit, holding that such does not

strictly comply with the Texas long arm statute. Also notes in dicta at n.13 that if a plaintiff could serve an out-

of-state defendant merely by supplying the Texas SOS an incorrect address, “the nonresident’s due process

rights [appear] to be in significant danger.”

24. In Marquez v. Greig, 2012 Tex. App. LEXIS 6551 *6-7 (Tex. App. – Houston [1st Dist.] August 9,

2012, no pet.), a default judgment was overturned via restricted appeal where the correct address was “2155

North Fairview”, but SOS had forwarded citation to “2155 Northfairview” and it had been returned marked

“unclaimed”. Marquez cites both Royal Surplus and Uvalde Country Club to the effect that where there is

evidence that the defendant’s actual address differed, IF ONLY SLIGHTLY, from the address to which the

Secretary of State forwarded service of process, the court held that the record does not affirmatively show strict

compliance with the rules governing service of process.

25. In Harper McLeod Solicitors v. Keaty & Keaty, 260 F.3d 389, 398-99 (5th Cir. 2001), upheld the

voiding of a default judgment because, among other things, plaintiff provided the Texas SOS an address that

contained an erroneous suite number. Harper also cites to both Royal Surplus and Arriba, infra, in holding that

Texas courts have consistently required strict compliance with the terms of the long arm statute” … and that “a

typographical error in the forwarding address …is grounds to set aside a default judgment.” Also states that

defendant having ACTUAL NOTICE without proper service is irrelevant, because without such proper service,

a court cannot gain jurisdiction over such an out-of-state defendant, whether he has notice or not.

26. Lastly, in Shackelford v. Carter Copters, 2011 Tex. App. LEXIS 7150 *12 (Tex. App. – Fort Worth

Aug 31, 2011, no pet.), a party challenging default judgment under bill of review survives summary judgment,

which was a case that involved SOS service on out-of-state resident at “333 Howard Street” rather than “333B

Howard Street”. Citing Royal Surplus, the Shackelford court muses that such an address may not be incorrect,

but it is incomplete, and allows defendant’s case to go forward, despite the fact that the citation came back

‘refused’ (and not merely undelivered).

27. In our case, the SOS delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. However, Mr.

Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740. The address is incorrect or at

the least incomplete. As such strict compliance with delivery of citation has not been met. Therefore, Mr.

Langdon’s due process rights have been violation, and he need not prove the first two elements required by a Bill

of Review, and the third element is conclusively proved by establishing that he was not served with process.

28. Mr. Langdon has no adequate legal remedy now available to avoid the effect of the erroneous Default

Judgment. Mr. Langdon did not have nor acquired actual knowledge of the Default Judgment until he was contacted by

opposing counsel in the underlying lawsuit until after the Court’s plenary power terminated. Accordingly, the court

should void the underlying judgment, and permit a new trial, after discovery has been conducted, to go forth.

VII. ATTORNEY’S FEES

29. Plaintiff seeks all reasonable and necessary attorneys’ fees in this case, which include, but are not

limited to the following:

(a) Investigation, and other Pre-Trial Matters;

(b) Preparation and trial of this lawsuit;

(d) An appeal to the court of appeals;

(e) Making or responding to an application for petition of review to the Supreme Court of Texas;

(f) An appeal to the Supreme Court of Texas in the event application for petition for review is granted;

and

(g) Post judgment discovery and collection in the event execution on the judgment is necessary.

30. A reasonable fee for the attorney’s services rendered and to be rendered is at least $7,500.00.

Attorney’s fees are authorized under Tex. Civ. Prac. & Rem. Code §38.000 et seq. and the Lease Agreement at

¶29 attached as Exhibit C.

VIII.

WHEREFORE, Plaintiff requests that Defendant be cited to appear and answer; that a new trial be granted;

and that on final trial hereof, the Court order that the Default Judgment be set aside and vacated; that the Court enter

judgment that the Defendant Ms. Gilbert take nothing; that Plaintiff recover from the Defendant, his damages and costs

herein expended; attorney’s fees, and have such other and further relief, at law or in equity, as to which he may be justly

entitled.

Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: _______________________________________

Tom Murphy

TSB # 24013217

9600 Great Hills Trail, Ste. 150W

Austin, Texas 78759

(512) 477-5680

(512) 493-0691 Fax

Email: tom@tommurphyslaw.com

Attorney for Langdon

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was delivered to the following parties or their

attorneys of record pursuant to the TRCP on April 21, 2015.

Troup & Bruce, LLP Evans Kosut Davidson, PLLC

Attn: Blair Bruce Attn: John M. Davidson

211 Florence 16000 Stuebner Airline Rd., Suite 200

Tomball, Texas 77375 Spring, Texas 77379

(281) 516-1100 (281) 251-7900

(281) 516-1180 Fax (281) 251-7909 Fax

blair@troupbruce.com jdavidson@ekklaw.com

________________________________________

Tom Murphy

APPENDIX

EXHIBIT B

APPENDIX

NO. C-1-CV-14-003653

JOHN BRYAN LANGDON ' IN THE COUNTY COURT

Plaintiff, '

VS. ' AT LAW #2 OF

LESLIE MATHISON GILBERT, '

Defendant ' TRAVIS COUNTY, TEXAS

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR

TRADITIONAL SUMMARY JUDGMENT FOR BILL OF REVIEW

AND NO EVIDENCE MOTION SOR SUMMARY JUDGMENT

LESLIE MATHISON GILBERT, Defendant herein, files her response to Plaintiff’s

Motion for Traditional Summary Judgment for Bill of Review and No Evidence Motion for

Summary Judgment.

SUMMARY:

To bring the appellate matters and bill of review case to a close and conserve resources,

Defendant concedes that the Court should grant Plaintiff Langdon’s bill of review and set aside

the underlying judgment, but objects to any award of attorney’s fees or other relief to Plaintiff

Langdon since there is no legal support for it. Alternatively, there is a question of material fact

regarding whether the attorney’s fees sought are reasonable or necessary or properly proven;

thus, summary judgment is improper.

RESPONSE:

1. Defendant Gilbert concedes that the Court should grant Plaintiff Langdon’s

bill of review and set aside the underlying judgment.

Solely to conserve resources, Defendant Gilbert concedes that the Court should grant

Plaintiff’s bill of review (based on the omission of the word “Front” on the citation in the

underlying lawsuit) solely to set aside the underlying March 19, 2014 default judgment and

return the parties to the pre-default judgment status in the underlying lawsuit. This will conclude

the bill of review lawsuit. Thereafter, the Court should re-set the underlying lawsuit for trial at a

later date. See Tex. R. Civ. P. 174(b) and 245; Caldwell v. Barnes 154 S.W. 2d 93, 97 (Tex.

2004); Baker v. Goldsmith, 582 S.W. 2d 404, 408 (Tex. 1979).

2. Defendant Gilbert objects to any award of attorney’s fees to Plaintiff

Langdon since there is no legal support for it; thus the Court should deny

summary judgment.

Plaintiff Langdon cites no authority in his motion or live pleading which would permit a

Court to award attorney’s fees to an equitable bill of review plaintiff.

The Court does not have discretion to award a bill of review plaintiff attorney’s fees

under the Uniform Declaratory Judgment Act. Mungia v VIA Metro Transit, 441 S.W. 3d 542

(Tex. App.—San Antonio 2014, no pet.).

The general rule in Texas is that each litigant must pay its own attorney’s fees. MBM

Fin. Corp. v. Woodland Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009). Recovery of attorney’s

fees from the adverse party is allowed only when the recovery is permitted by statute, by

contract, between the litigants, or under equity. Akin, Gump, Strauss, Hauer & Feld, LLP v.

National Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009).

3. Alternatively, there is a question of material fact regarding whether the

attorney’s fees sought are reasonable or necessary, and the Court should

deny summary judgment.

Assuming the Court determines that Plaintiff Langdon can recover attorney’s fees for

prosecuting a bill of review lawsuit, the Court should deny the motion for summary judgment as

to attorney’s fees since the affidavit of counsel for Defendant, marked and attached as Exhibit A,

regarding reasonable and necessary attorney’s fees, creates a material issue of fact. Additionally,

Plaintiff’s affidavit fails to state Plaintiff’s counsel’s hourly rate or provide any level of detailed

billing as required by the Texas Supreme Court in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757,

763-765 (Tex. 2012). Further, Plaintiff Langdon’s summary judgment evidence fails to provide

any evidence that his claim for attorney’s fees was timely presented to Defendant Gilbert. Tex.

Civ. Prac. & Rem. Code 38.002.

THEREFORE, Defendant requests that the underlying judgment be set aside and

Plaintiff’s request for attorney’s fees be denied, and for such other and further relief to which

Defendant may be justly entitled.

Respectfully submitted,

EVANS KOSUT DAVIDSON, PLLC

/s/ John M. Davidson

By: ______________________________________

John M. Davidson

State Bar No. 05434980

16000 Stuebner Airline Rd., Suite 200

Spring, Texas 77379

281-251-7900 – Telephone

281-251-7909 – Fax

jdavidson@ekklaw.com

CERTIFICATE OF SERVICE

I certify that a true copy of the above document has this 27th day of March, 2015, been

served to counsel of record as follows:

Via eFiling and/or eMail: tom@tommurphyslaw.com

Tom Murphy

Law Office of Tom Murphy

9600 Great Hills Trail, Ste. 150W

Austin, TX 78759

/s/ John M. Davidson

By: ______________________________________

John M. Davidson

NO. C-1-CV-14-003653

JOHN BRYAN LANGDON § IN THE COUNTY COURT

Plaintiff, §

VS, § AT LAW #2 OF

LESLIE MATHISON GILBERT, §

Defendant § TRAVIS COUNTY, TEXAS

AFFIDAVIT OF JOHN M. DAVIDSON

STATE OF TEXAS §

COUNTY OF HARRIS §

Before me, the undersigned authority, personally appeared John M. Davidson who, upon

his oath, deposed and said:

1. “My name is John M. Davidson. I am over 21 years of age and fully competent to

execute this afﬁdavit. I am an attorney with the law ﬁrm of Evans Kosut Davidson, PLLC in

Spring, Texas, and the attorney for LESLIE MATHISON GILBERT, Defendant in the above-

captioned action. I have personal knowledge of the facts in this afﬁdavit, and those facts are true

and correct.

2. I am an attorney in State of Texas and have been a

good standing licensed -in the

practicing attorney in Houston, Texas and nearby counties for 25 years. I am generally familiar

with the attorney’s fees charged by litigation counsel in Travis County, Texas.

3. I am

of the opinion that $18,500.00 in attomey’s fees, and related appellate fee

requests, would n_ot be a reasonable fee for the services summarily described in Plaintiffs

attomey’s afﬁdavit marked as Plaintiffs Exhibit B. Further, Plaintiffs afﬁdavit fails to state

Plaintiffs counsel’s hourly rate or provide any level of detailed billing as required by the Texas

Supreme Court in El Apple 1, Ltd. V. Olivas, 370 S.W.3d 757, 763-765 (Tex. 2012).

4. It is my

opinion that these fees are n_ot reasonable or necessary attorney's fees

based upon the factors set forth in Rule 1.4 of the Texas Disciplinary Rules of Professional

Conduct, and the case law interpreting this Rule:

a. The time and labor required, the novelty and difﬁculty of the issue

involved, the skill required to provide the legal services properly, and the

experience, reputation, and expertise of the lawyer or lawyers performing

the services;

b. The likelihood that the acceptance of the particular employment will

preclude other employment by the attorney;

c. The fee customarily charged .in the community for similar legal services.

d. The amount involved and the result obtained;

e. The time limitations imposed by the clients or by the circumstances;

f. The nature and length of professional relationship with the clients;

g. The experience, reputation, and the ability of the attorney performing the

services;

h. Whether or not the fee is fixed or contingent on the results obtained — that

is the uncertainty of collection before legal services have been rendered;

and

i. Based on common knowledge of the attorney involved and this Court.

5. In my opinion, the reasonable and necessary attorney’s fees, if any, for this

Plaintiff in a simple default judgment based upon incorrect service type of case, would be

signiﬁcantly lower than the amount being requested by Plaintiff in this bill of review proceeding.

Further, it would be inequitable to award the fees requested by Plaintiff since Plaintiffs counsel

could have timely ﬁled a motion for new trial and avoided the need for any bill of review

proceeding.

Further Afﬁant sayeth not.”

By:

John M. Davidson

SUBSCRIBED AND SWORN TO before me on the 27"‘ day of March, 2015.

By: /ll/\/LUL

Notf/jlirublic, State of Texas

APPENDIX

REDACTED PER TRAP 9.9

APPENDIX

REDACTED PER TRAP 9.9

ACCEPTED

03-15-00305-CV

5651777

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/12/2015 10:17:57 AM

JEFFREY D. KYLE

CLERK

APPELLATE CASE NO. 03-15-00305-CV

JOHN BRYAN LANGDON

Appellant

LESLIE MATHISON GILBERT

Appellee

On Appeal from the

County Court at Law Number Two of Travis County, Texas

APPELLANT’S APPENDIX

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon

Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy

Attn: John M. Davidson Attn: Tom Murphy

16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W

Spring, Texas 77379 Austin, Texas 78759

(281) 251-7900 (512) 477-5680

(281) 251-7909 Fax (512) 493-0691 Fax

Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com

Trial Attorney and Trial Attorney and

Presumed Appellee Counsel for Gilbert Appellate Counsel for Langdon

Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: ________________________________

Tom Murphy

TSB # 24013217

9600 Great Hills Trail, Ste. 150W

Austin, Texas 78759

(512) 477-5680

(512) 493-0691 Fax

Email: tom@tommurphyslaw.com

Attorney for Appellant Langdon

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was delivered to the

following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Evans Kosut Davidson, PLLC Court of Appeals

Attn: John M. Davidson Third District of Texas

16000 Stuebner Airline Rd., Ste. 200 Attn: Jeffrey D. Kyle, Clerk of the Court

Spring, Texas 77379 PO Box 12547

(281) 251-7900 Austin, Texas 78711-2547

(281) 251-7909 Fax

Email: jdavidson@ekklaw.com

Trial Attorney and Presumed

Appellate Counsel for Gilbert

____________________________________

Tom Murphy

APPENDIX

Appendix #1. Copy of the Lease Agreement

Appendix #2. Copy of the Second Amended Petition for Bill of Review

Appendix #3. Copy of Exhibit B (Attorneys' Fees) of Motion for Summary

Judgment

Appendix #4. Appellee's Response to Appellant's Motion for Summary

Judgment

Appendix #5. Appellee's First Amended Petition

Appendix #6. Motion for Default Judgment

Appendix #7. Final Judgment in the Underlying Suit

Appendix #8. Order Granting Appellee’s Notice of Non-Suit without Prejudice

Appendix #9. TEX. R. CIV. P. 54

Appendix #10. TEX. R. CIV. P. 329b(d)

Appendix #11. TEX. R. CIV. P. 329b(f)

Appendix #12. 1A TexJur Actions §49 and §62

Appendix #13. 34 TexJur Equity §2

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287

S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. - Dallas

1992, no writ)

Appendix #16. Black’s Law Dictionary, 10th ed. (2014)

Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d

674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t

vacated w.r.m.)

Appendix #18. Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627

(Tex. App. – San Antonio 2011, no pet.)

Appendix #19. Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. –

Austin 1938, no writ)

Appendix #20. G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930

S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied)

Appendix #21. Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174

(Tex. 1992)

Appendix #22. Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. –

Dallas 1988, no writ)

Appendix #23. In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. –

Houston [1st Dist.] 2007, no pet.)

Appendix #24. Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d

650, 655 (Tex. 2009)

Appendix #25. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus

Christi 1985, writ ref'd n.r.e.)

Appendix #26. Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974)

Appendix #27. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex.

App. —San Antonio 1999, pet. denied)

Appendix #28. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d

390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.)

Appendix #29. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663

(Tex. 2009)

Appendix #30. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58

(Tex. 2008)

Appendix #31. Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982)

Appendix #32. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App. –

Houston [14th Dist.] 2000, no pet.)

Appendix #33. Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126

S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no

pet.)

Appendix #34. Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App. -

Austin 1981, no writ)

Appendix #35. Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex.

App.-Houston [1st Dist.] 1992, no writ)

Appendix #36. Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104,

108 (Tex. 2010)

Appendix #37. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.

1996)

Appendix #38. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010)

APPENDIX

RULE 54

CONDITIONS PRECEDENT

In pleading the performance or occurrence of conditions precedent, it shall be

sufficient to aver generally that all conditions precedent have been performed or

have occurred. When such performances or occurrences have been so plead, the

party so pleading same shall be required to prove only such of them as are

specifically denied by the opposite party.

APPENDIX

#10

RULE 329b(d)

TIME FOR FILING MOTIONS

The following rules shall be applicable to motions for new trial and motions to

modify, correct, or reform judgments (other than motions to correct the record under

Rule 316) in all district and county courts:

(d) The trial court, regardless of whether an appeal has been perfected, has

plenary power to grant a new trial or to vacate, modify, correct, or reform the

judgment within thirty days after the judgment is signed.

APPENDIX

#11

RULE 329b(f)

TIME FOR FILING MOTIONS

The following rules shall be applicable to motions for new trial and motions to

modify, correct, or reform judgments (other than motions to correct the record under

Rule 316) in all district and county courts:

(f) On expiration of the time within which the trial court has plenary power, a

judgment cannot be set aside by the trial court except by bill of review for sufficient

cause, filed within the time allowed by law; provided that the court may at any time

correct a clerical error in the record of a judgment and render judgment nunc pro

tunc under Rule 316, and may also sign an order declaring a previous judgment or

order to be void because signed after the court's plenary power had expired.

APPENDIX

#12

APPENDIX

#13

APPENDIX

#14

EXCERPTED

Page 877 Sale and Purchase Agreement whereby AMTJ, Inc.

agreed to buy Grady Chevrolet's assets under the terms

287 S.W.3d 877 (Tex.App.-Dallas 2009) and conditions in the agreement.

ALAN REUBER CHEVROLET, INC., Appellant Four provisions of the agreement are relevant to

the issues presented on appeal. First, AMTJ, Inc. agreed

v. to buy fixed assets at a price calculated on their fair

market value as appraised. Second, AMTJ, Inc. also

GRADY CHEVROLET, LTD., Formerly Grady

agreed to buy all the " non-obsolete current, unused, new

Chevrolet Company, Appellee.

and returnable Chevrolet factory parts and accessories"

on hand when the sale closed. These parts were to be

No. 05-08-00107-CV.

inventoried and valued at the net cost to Grady Chevrolet

Court of Appeals of Texas, Fifth District, Dallas as set forth in the most recent Chevrolet price book, less

any discounts or rebates reflected on the parts invoices.

June 9, 2009 Third, AMTJ, Inc. agreed to purchase " all non-Chevrolet

factory parts and accessories" on hand at the time of

Page 878 closing at fair market value, but if the parties could not

agree on their fair market value, they would not be

[Copyrighted Material Omitted] subject to the agreement.

Page 879 Page 881

[Copyrighted Material Omitted] Fourth, the agreement provided (in section 17) the

following regarding attorney's fees and costs:

Page 880

In the event of any litigation between the Parties hereto to

Jay Edward Ray, Glast, Phillips & Murray, PC,

enforce any provisions or rights hereunder, the

Dallas, for Appellant.

unsuccessful Party to such litigation shall pay to the

successful Party therein all costs and expenses expressly

Joe E. Weis, Pemberton, Green, Newcomb and

including, but not limited to, reasonable attorney's fees ...,

Weis, Greenville, for Appellee.

which ... attorney's fees shall be included in and as part of

Before Justices MOSELEY, FITZGERALD, and any judgment rendered in such litigation.

LANG-MIERS.

The fixed assets were appraised by Travis R.

OPINION Fralicks, who submitted an appraisal to both parties. The

parts were inventoried and valued by Leighton Railsback;

MOSELEY, Justice. he referred to a nonreturnable part as a " nonconforming"

part. [1] As relevant here, he valued the nonreturnable

In this appeal, we decide whether: (1) Alan Reuber parts at just under $60,000. Before the closing, AMTJ,

Chevrolet, Inc. (ARCI) is entitled to recover attorney's Inc. assigned its rights and obligations under the

fees as the successful party to Grady Chevrolet, Ltd.'s agreement to ARCI. The sale closed November 13, 2001,

breach of contract claim, despite pleading and procedure with the sale price based on the appraisals and

issues; and (2) the evidence supports the findings on the inventories.

damages awarded to Grady Chevrolet on its conversion

claim. Because we answer both of those questions in the Four days after the closing, Grady mistakenly

affirmative, we reverse the trial court's revised final opened an envelope from Fralicks to Reuber; the

judgment to the extent it denies ARCI's claim for envelope contained another appraisal-at higher values-of

attorney's fees and remand this case to the trial court for the fixed assets involved in the sale. Attached to the

further proceedings on that claim. In all other respects, second appraisal was a handwritten note from Fralicks to

we affirm the revised final judgment. Reuber: " Alan: This info for your use only." Grady

believed the second appraisal was evidence that he

I. FACTUAL BACKGROUND received less at the closing than he should have received.

Additionally, Grady was unsuccessful in obtaining the

Jerry Grady was the president of Grady Chevrolet nonreturnable parts, which had been excepted from the

Company, which operated a Chevrolet dealership in sale, from ARCI.

Greenville, Texas. Alan Reuber was the president of

ARCI and AMTJ, Inc. In September 2001, Grady and II. PROCEDURAL BACKGROUND

Reuber, as corporate officers, signed a Dealership Asset

…… unspecific, to be the basis of an award of attorneys' fees

under the [agreement]." Prejudgment letters of this sort

Page 883 do not constitute findings of fact and conclusions of law

and are not competent evidence of a trial court's basis for

III. ATTORNEY'S FEES judgment. See Cherokee Water Co. v. Gregg County

Appraisal Dist., 801 S.W.2d 872, 878 (Tex.1990)

Pertinent to the issues on appeal as to ARCI's

(discussing letter to parties characterized as findings of

request for attorney's fees, trial court found that: (1)

fact, trial court " could have disregarded the evidence at

ARCI's live pleading contained a general prayer for

the time judgment was actually signed" and such letter "

recovery of attorney's fees without specifying any statute

is not a finding of fact" as contemplated by rules of civil

or other basis on which ARCI could recover attorney's

procedure 296 through 299); Mondragon v. Austin, 954

fees; and (2) although Grady Chevrolet failed to meet its

S.W.2d 191, 193 (Tex.App.-Austin 1997, pet. denied)

burden of proof on its breach of contract claim against

(prejudgment letter " cannot constitute findings of fact

ARCI, Grady Chevrolet abandoned its breach of contract

and conclusions of law" ; citing Cherokee Water Co., 801

claim against ARCI before the judgment was signed.

S.W.2d at 878). However, in its findings of fact, the trial

In its first and third issues, ARCI attacks the trial court stated:

court's failure to award it attorney's fees as the successful

20. Said First Amended Original Answer filed by ARCI,

party on Grady Chevrolet's breach of contract claim.

within its prayer, contained a general prayer for recovery

Specifically, ARCI argues the trial court erred in denying

of attorney's fees without

its attorney's fees claim as the " successful party" under

the agreement on the grounds that: (1) it had not Page 884

sufficiently pleaded that claim; and (2) Grady Chevrolet

abandoned its breach of contract claim after the trial court specifying any statute or other basis on which attorney's

had already found that ARCI had not breached the fees could be recovered by ARCI.

contract.

While this conclusion of law, stated as a finding of

A. Standard of Review fact, does not exactly express the same opinion in the

letter, we conclude that ARCI's arguments encompass

A trial court's conclusions of law are always and attack this conclusion.

reviewable. Spiller v. Spiller, 901 S.W.2d 553, 556

(Tex.App.-San Antonio 1995, writ denied). We uphold 1. Applicable Law and Standard of Review

conclusions of law on appeal if the judgment can be

sustained on any legal theory supported by the evidence. Attorney's fees may not be recovered unless

Id. We do not reverse a conclusion of law unless it is provided for by statute or by contract between the parties.

erroneous as a matter of law. Westech Eng'g, Inc. v. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835

Clearwater Constructors, Inc., 835 S.W.2d 190, 196 S.W.2d 75, 77 (Tex.1992). Absent a mandatory statute, a

(Tex.App.-Austin 1992, no writ). We review a trial trial court's jurisdiction to render a judgment for

court's conclusions of law de novo as legal questions, attorney's fees must be invoked by pleadings, and a

affording no deference to the lower court's decision. judgment not supported by pleadings requesting an award

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 of attorney's fees is a nullity. State v. Estate of Brown,

S.W.3d 212, 227 (Tex.2002). Under de novo review, we 802 S.W.2d 898, 900 (Tex.App.-San Antonio 1991, no

exercise our own judgment and redetermine each legal pet.) (citing Wolters v. White, 659 S.W.2d 885, 888

issue. Id. at 222. We do not reverse a judgment for (Tex.App.-San Antonio 1983, writ dism'd), and Ex parte

incorrect conclusions of law if the controlling findings of Fleming, 532 S.W.2d 122, 123 (Tex.Civ.App.-Dallas

fact support the judgment under a correct legal theory. 1975, orig. proceeding)). See In re Pecht, 874 S.W.2d

Westech Eng'g, Inc., 835 S.W.2d at 196. 797, 803 (Tex.App.-Texarkana 1994, no writ) (" In order

to be entitled to a discretionary award of attorney's fees,

B. Sufficient Pleading for Attorney's Fees however, the movant must affirmatively plead for them

unless the issue is waived or tried by consent." ).

In its first issue, ARCI argues it properly pleaded

for the recovery of its attorney's fees in its first amended " The office of pleadings is to define the issues at

original answer and its general request for attorney's fees trial, and to give the opposing party information

therein provided sufficient and fair notice to Grady sufficient to enable him to prepare a defense." Estate of

Chevrolet that it was seeking attorney's fees pursuant to Brown, 802 S.W.2d at 900 (quoting Murray v. O & A

section 17. Express, Inc., 630 S.W.2d 633, 636 (Tex.1982), and

Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)). "

ARCI's briefing is directed primarily to the trial Texas follows a ' fair notice' standard for pleading, in

court's statement in the September 10, 2007 letter that which courts assess the sufficiency of pleadings by

ARCI's request for attorney's fees " in the prayer alone, determining whether an opposing party can ascertain

and not in the body of its answer, is insufficient, and too from the pleading the nature, basic issues, and the type of

evidence that might be relevant to the controversy." Low

v. Henry, 221 S.W.3d 609, 612 (Tex.2007) (citing

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,

896-97 (Tex.2000)). See TEX.R. CIV. P. 47(a).

A general prayer for relief will not support an

award of attorney's fees because it is a request for

affirmative relief that must be supported by the pleadings.

Varner v. Howe, 860 S.W.2d 458, 466 (Tex.App.-El Paso

1993, no writ). See Kissman v. Bendix Home Sys., Inc.,

587 S.W.2d 675, 677 (Tex.1979) (" The prayer for

general relief is of no assistance [in giving fair notice of a

claim] because a prayer must be consistent with the facts

stated as a basis for relief." ). However, in passing on the

sufficiency of a pleading, all allegations in the adversary's

pleading may be considered, and any omission in the

pleading is cured when the omission is supplied by the

opponent's pleading. S. Ins. Co. v. Fed. Serv. Fin. Corp.,

370 S.W.2d 24, 28 (Tex.Civ.App.-Austin 1963, writ

dism'd). See Land Title Co. of Dallas, Inc. v. F.M. Stigler,

Inc., 609 S.W.2d 754, 756 (Tex.1980) (" In determining

whether issues are supported by pleadings, the trial court

will supply omissions in the pleadings of one party by

referring to the allegations contained in the pleadings of

another." ); Lacy v. First Nat'l Bank, 809 S.W.2d 362,

365 (Tex.App.-Beaumont 1991, no writ) (same);

Whittington v. Glazier, 81 S.W.2d 543, 545

(Tex.Civ.App.-Texarkana 1935, writ ref'd) (same). An

opposing party should use special exceptions to identify

defects in a pleading so that they may be cured, if

possible, by amendment. Auld, 34 S.W.3d at 897. When a

party fails to specially except, courts should construe the

pleadings liberally in favor of the pleader. Id.

Whether a party is entitled to recover attorney's

fees is a question of law

Page 885

that we review de novo. Holland v. Wal-Mart Stores,

Inc., 1 S.W.3d 91, 94 (Tex.1999).

APPENDIX

#15

EXCERPTED

Page 251 The trial court approved the settlement and granted a

divorce. The attorneys were instructed to prepare a

830 S.W.2d 251 (Tex.App. Dallas 1992) divorce decree that reflected the agreement of the parties.

The judge stated that if the parties could not agree on a

Saleha BAKALI, Appellant, written order, the statement of facts would be transcribed

to act as a decree.

Husband's attorney drafted a divorce decree and

Gulam Ishaq BAKALI, Appellee.

submitted it to wife's attorney and the trial court. This

proposed decree did not comport with the agreement read

No. 05-91-00756-CV.

into the record in several material respects. Specifically,

Court of Appeals of Texas, Fifth District, Dallas the decree awarded husband (1) all of his stock in

Lockwood Green Engineering; (2) two IRA's in his name;

April 21, 1992 (3) the unpaid bonuses that accrued while he was

employed at Lockwood; and (4) a Honda automobile.

Page 252 The decree also ordered wife to pay certain medical

expenses and a portion of any tax liability for 1988.

[Copyrighted Material Omitted]

On August 21, 1989, wife's attorney sent a letter to

Page 253 the judge objecting to the payment of medical expenses

and income taxes set forth in the divorce decree. Counsel

Mark H. How, Marcia F. Pennell, Dallas, for

also requested a telephone conference prior to the entry

appellant.

of the decree. On August 24, 1989, husband's attorney

wrote to the judge stating that the matters raised by wife's

Khalid Y. Hamideh, Prema A. Velu, Dallas, for

attorney had been resolved and that a telephone

appellee.

conference would not be necessary. The judge struck the

Before STEWART, CHAPMAN and KAPLAN, JJ. provisions pertaining to the payment of medical

expenses.

OPINION

The divorce decree was signed on August 29, 1989.

KAPLAN, Justice. On that same day, the judge sent a letter to counsel for

both parties enclosing a copy of the signed divorce

Saleha Bakali appeals from a summary judgment decree. The judge instructed husband's attorney to file the

denying her petition for bill of review and awarding her original decree by September 19, 1989, whether or not it

former husband attorney's fees. In four points of error, was approved by opposing counsel. The signed decree

wife contends that (1) the underlying divorce decree is was tendered to the clerk on September 19,

void and subject to collateral attack, (2) the trial court

erred in granting summary judgment, and (3) the trial Page 254

court erred in awarding attorney's fees to husband. We

overrule all points of error and affirm the trial court's 1989. The decree was never approved by wife's attorney.

judgment.

………………………….

FACTUAL BACKGROUND

Gulam Ishaq Bakali sued his wife for divorce. The

case was specially set for trial on July 20, 1989. After one Husband attached an affidavit from the judge's

full day of testimony and hours of negotiation, the parties personal secretary to his motion for

announced to the court that they had reached a settlement.

A settlement agreement was dictated into the record. The Page 257

agreement provided that (1) each party would receive all

summary judgment. This affidavit states that the signed

personal property in his or her possession; (2) wife would

divorce decree was sent to wife's attorney on August 29,

receive sixty percent of the community property interest

1989. A copy of the transmittal letter to the attorneys for

in husband's retirement plan at Lockwood Green

both parties is attached as an exhibit to the affidavit. This

Engineering; (3) wife would receive $450 a month for

evidence is uncontroverted. The affidavit and exhibits are

eighteen months as her community share of husband's

sufficient to show compliance with the duties imposed on

profit sharing plan at Lockwood; and (4) wife would

court clerks under rule 306a(3) of the Texas Rules of

receive sixty percent of the remaining marital assets.

Civil Procedure and to negate any allegation of official

mistake.

Husband has conclusively negated one essential

element of wife's cause of action. We conclude that the

trial court properly granted husband's motion for

summary judgment. Wife's third point of error is

overruled.

ATTORNEY'S FEES

Finally, wife contends that the trial court erred in

granting attorney's fees to her former husband.

Specifically, she contends that there is no basis in law for

awarding attorney's fees in a bill of review proceeding.

A party who successfully defends a bill of review is

entitled to recover attorney's fees if attorney's fees are

authorized in the prosecution or defense of the underlying

case. Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex.1982).

The legislature has authorized trial courts to award

reasonable attorney's fees and expenses in divorce

proceedings. TEX.FAM.CODE ANN. §§ 3.65, 3.77, and

3.93 (Vernon Supp.1992). Trial courts also have the

discretion to award reasonable attorney's fees for the

appeal of divorce actions. Dickson v. McWilliams, 543

S.W.2d 868, 870 (Tex.App.--Houston [1st Dist.] 1976, no

writ). Because husband could have recovered attorney's

fees if wife had appealed the divorce decree, the trial

court did not err in awarding attorney's fees in this bill of

review proceeding. Wife's fourth point of error is

overruled.

The judgment of the trial court is affirmed.

APPENDIX

#16

Black’s Law Dictionary, 10th ed. (2014)

Legal Proceeding – “Any proceeding authorized by law and instituted in a court or

tribunal to acquire a right or to enforce a remedy.”

APPENDIX

#17

EXCERPTED

Page 674 Page 676

406 S.W.3d 674 (Tex.App.-Fort Worth 2013) CenterPlace. We reverse and render in part and affirm in

part.

CENTERPLACE PROPERTIES, LTD., Appellant

II. Background

Ganesh Harpavat, general partner of CenterPlace,

COLUMBIA MEDICAL CENTER OF formed CenterPlace in 1998 to develop a commercial

LEWISVILLE SUBSIDIARY, L.P. d/b/a Medical property complex on three tracts of land that he owned in

Center of Lewisville and Raymond Dunning, Flower Mound, Texas. Harpavat's development plan was

Appellees. to construct three medical office buildings referred to as

CenterPlace I, CenterPlace II, and CenterPlace III.

No. 02-11-00049-CV. CenterPlace I was completed in 1998, and CenterPlace II

was completed in 2004.[2]

Court of Appeals of Texas, Second District, Fort

Worth In 2004, CenterPlace and MCL began negotiations

for MCL to lease space in CenterPlace II for an

May 30, 2013

ambulatory surgery center or medical and administrative

Rehearing Overruled Aug. 1, 2013. offices. On November 22, 2004, CenterPlace and MCL

entered into a ten-year lease (the lease) covering

Page 675 approximately 17,300 square feet, the entire first floor of

CenterPlace II (the premises). At that time, MCL planned

John H. Cayce Jr., Adrienne N. Wall, Kelly Hart & to build out the premises for use as an ambulatory surgery

Hallman LLP, Fort Worth, TX, for Appellant. facility.

Sherri T. Alexander, Angela R. Joyce, Bell Section 10 of the lease provided that " [t]he parties

Nunnally & Martin LLP, Dallas, TX, for Appellees. acknowledge and agree that [MCL] may make alterations

and improvements to the interior of the Leased Space in

PANEL: GARDNER, WALKER, and MEIER, JJ. order to prepare the Leased Space for use by [MCL] as

medical offices and/or an outpatient surgery facility."

OPINION Another part of Section 10 required that CenterPlace

provide MCL an allowance of $536,200 for tenant

ANNE GARDNER, Justice.

improvements (the TI funds) to finish out the premises.

CenterPlace was required to provide the TI funds to MCL

I. Introduction

" on or before the Commencement Date, or if Landlord

This is a breach of contract case. Appellant and Tenant shall agree, in installments as the [w]ork

CenterPlace Properties, Ltd. (CenterPlace) appeals an progresse[d]." [3]

adverse judgment following a bench trial in a suit for

Section 10(c) of the lease required that MCL, within

breach of a lease agreement that CenterPlace filed against

thirty days of the lease date, submit to CenterPlace for

Appellee Columbia Medical Center of Lewisville

approval " a space plan which in outline form shows the

Subsidiary, L.P. d/b/a Medical Center of Lewisville

layout and configuration of the Leased Space." If

(MCL) and Raymond Dunning.[1] The trial court's

CenterPlace did not make any written comments or

judgment ordered that CenterPlace take nothing against

objections to the space plan within ten days, the lease

MCL based upon findings that CenterPlace materially

provided that CenterPlace was " deemed to have

breached the parties' lease agreement and that

approved" the plan. MCL submitted a space plan for an

CenterPlace's breach excused MCL's failure to pay rent

ambulatory surgical center to CenterPlace on December

after November 1, 2007. The judgment further ordered

21, 2004. The parties disagreed at trial as to whether the

that CenterPlace pay MCL $34,071.15 in statutory

space plan provided by MCL complied with the lease's

damages and a total of $319,700 in attorneys' fees and

terms, but it is undisputed that CenterPlace did not

costs. CenterPlace contends in four issues, which include

comment about or object to the space plan within ten

several subissues, that the evidence is legally and

days.

factually insufficient to support the findings and

judgment and that the trial court erred by awarding

Although it had provided a space plan to

attorneys' fees to MCL and in failing to award attorneys'

CenterPlace, MCL did not start finishing out the interior

fees to

of the premises. MCL presented evidence that it did not

find adequate physician interest to support its plans for an

ambulatory surgery center and that it proposed to move (Tex.App.-Houston [1st Dist.] May 20, 2010, pet. denied)

forward immediately with alternate plans for a diagnostic (mem. op.) (op. on reh'g) (concluding defendant who

imaging center and a pediatric urgent-care clinic. successfully defended against

CenterPlace expressed its disapproval with MCL's

alternate plans, particularly regarding the proposed Page 687

imaging center as possibly competing with an existing

tenant, but Harpavat testified that it was very important to breach of contract claim was a " prevailing party" under

him that MCL had represented to him that it was going to attorneys' fees provision of contract); see also Fitzgerald

proceed immediately. The parties then disputed whether v. Schroeder Ventures II, LLC, 345 S.W.3d 624, 629

MCL had breached the lease or fraudulently induced (Tex.App.-San Antonio 2011, no pet.) (holding

CenterPlace into the lease. The parties' dispute evolved defendants who successfully obtained jury findings of no

into discussions about amending the lease. liability resulting in take-nothing judgment in suit

relating to contract were each a " prevailing party"

…………. entitled to attorneys' fees as provided by contract). We

overrule the part of CenterPlace's fourth issue that asserts

V. Attorneys' Fees that the trial court erred by awarding attorneys' fees and

costs to MCL based on Section 27 of the lease and MCL's

CenterPlace argues in its fourth issue that the trial status as the prevailing party in the litigation.[16]

court erred by awarding MCL its attorneys' fees and costs

and by concluding that CenterPlace was not entitled to C. MCL's Recovery Under Property Code

recover its attorneys' fees and costs pursuant to Section Section 93.002

27 of the lease agreement.

MCL's recovery of attorneys' fees under property

A. Lease Language code section 93.002 is a different matter. The trial court

awarded MCL $37,700 in attorneys' fees for

Section 27 of the lease states: CenterPlace's alleged violation of section 93.002(c), but

we held above that legally insufficient evidence supports

In the event any litigation ensues with respect to the the trial court's determination that CenterPlace violated

rights, duties and obligations of the parties under this property code section 93.002(c). Thus, MCL's attorneys'

Lease, the unsuccessful party in any such action or fees can only be awarded pursuant to the contract and

proceeding shall pay for all costs, expenses and cannot be awarded pursuant to section 93.002(g). See

reasonable attorney's fees incurred by the prevailing party Tex. Prop.Code Ann. § 93.002(g)(2) (providing that

in enforcing the covenants and agreements of this Lease. tenant may recover reasonable attorneys' fees and court

The term " prevailing party, " as used herein, shall mean costs less any delinquent rents or other sums for which

the party that obtains substantially the relief sought by tenant is liable to landlord if landlord or landlord's agent

such party, whether by compromise, settlement or violates that section). MCL did not prevail on its claim

judgment. Further, in the event Landlord retains legal under section 93.002(g), nor is it the " prevailing party"

counsel to enforce any of Tenant's obligations hereunder, under the contract language on its counterclaim for

Tenant shall reimburse Landlord for all reasonable legal damages based on violation of property code section

fees incurred by Landlord. 93.002. We therefore sustain the part of CenterPlace's

fourth issue that challenges the trial court's award of

B. MCL as Prevailing Party

attorneys' fees to MCL based on CenterPlace's alleged

CenterPlace first argues that MCL will no longer violation of section 93.002(c).

be the " prevailing party" as defined by the lease if

D. CenterPlace's Claim for Attorneys' Fees

CenterPlace succeeds on its first three issues because, in

that event, MCL would not have obtained substantially CenterPlace argues in the final part of its fourth

the relief sought by it in the judgment. We held above, issue that the trial court erred by failing to award it

however, that legally and factually sufficient evidence recovery of its attorneys' fees because the last sentence of

supports the trial court's determination that CenterPlace Section 27 mandates an award of reasonable attorneys'

breached the lease by refusing to release the remaining TI fees to CenterPlace, even if it is not the prevailing party.

funds to MCL. That breach excused MCL's further In other words, CenterPlace contends that MCL's

payment of rent, a conclusion of law by the trial court of obligation to pay attorneys' fees to CenterPlace under

which CenterPlace does not complain. Thus, MCL was Section 27 is not contingent upon CenterPlace's litigation

and remains the " prevailing party" under Section 27 of success. We are not, however, persuaded that

the lease because it obtained through the judgment CenterPlace's proposed interpretation of Section 27 is

substantially the relief it sought in the lawsuit. See correct.

Johnson v. Smith, No. 07-10-00017-CV, 2012 WL

140654, at *3 (Tex.App.-Amarillo Jan. 18, 2012, no pet.) The interpretation of an unambiguous contract is a

(mem. op.); Silver Lion, Inc. v. Dolphin St., Inc., No. question of law that we review de novo. MCI Telecomms.

01-07-00370-CV, 2010 WL 2025749, at *18 Corp. v. Tex. Utils. Electric Co., 995 S.W.2d 647, 650-51

(Tex.1999). " Our primary concern in construing a absence of litigation and for the first two sentences to

written contract is to ascertain the objective intent of the apply in the event of litigation is confirmed by the parties'

parties as expressed in the contract." DaimlerChrysler use of " [f]urther" as an introduction to the last sentence

Motors Co. v. Manuel, 362 S.W.3d 160, 178 and " [i]n the event any litigation ensues" as an

(Tex.App.-Fort Worth 2012, no pet.) (citing Coker v. introduction to the first sentence. See generally Gen. Fin.

Coker, 650 S.W.2d 391, 393 (Tex.1983); City of the Servs., Inc. v. Practice Place, Inc., 897 S.W.2d 516, 522

Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex.App.-Fort Worth 1995, no writ) (" The language of

(Tex.App.-Fort Worth 2008, pet. dism'd)). " We examine a contract should be given its plain, ordinary, and

and consider the entire document in an effort to commonly accepted meaning. Courts are required to

harmonize and give effect to all provisions of the contract follow elemental rules of grammar for a reasonable

so that none will be rendered meaningless." Id. (citing application of the legal rules of construction." (citations

Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 omitted)). The use of " [f]urther" as an introduction to the

S.W.3d 342, 345 (Tex.2006); Coker, 650 S.W.2d at 393; last sentence of Section 27 suggests that the last sentence

City of the Colony, 272 S.W.3d at 722); see applies only to a circumstance different than the first two

sentences of Section 27. And the introductory " [i]n the

Page 688 event any litigation ensues" language in the first sentence

of Section 27, particularly compared to the more general

El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 language used in the last sentence of Section 27, suggests

S.W.3d 802, 805 (Tex.2012). " When the provisions of a that the parties intended for only the first two sentences to

contract appear to conflict, they should be harmonized if apply once the parties' dispute led to litigation, and the

possible to reflect the intentions of the parties." Ogden v. first two sentences permit only the prevailing party in the

Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983) litigation to recover its costs and attorneys' fees. MCL is

(op. on reh'g) (citing Harris v. Rowe, 593 S.W.2d 303, the prevailing party and is thus the only party entitled to

306 (Tex.1979)). " Generally, the parties to a contract recover its costs and attorneys' fees. Had CenterPlace

intend every clause to have some effect[,] and the Court prevailed in the litigation, then only CenterPlace would

will not strike down any portion of the contract unless have been entitled to recover its costs and attorneys' fees.

there is an irreconcilable conflict." Id. (citing Woods v. Contrary to CenterPlace's contention, the only reasonable

Sims, 154 Tex. 59, 64, 273 S.W.2d 617, 620 (1954)). manner in which

The first two sentences of Section 27 provide for Page 689

the mandatory award of attorneys' fees to the prevailing

party if litigation ensues relating to the lease. MCL, as to construe Section 27 to give effect to all three

stated above, is the prevailing party entitled to recover its sentences is to interpret it to mean that CenterPlace

costs and attorneys' fees under that portion of Section 27. would have been entitled to recover its attorneys' fees if

But in arguing that it should also be awarded its attorneys' the parties' dispute had not resulted in litigation but that

fees, CenterPlace relies on the last sentence of Section because " litigation ensue[d]" from the parties' dispute,

27, which states, " Further, in the event Landlord retains only MCL is permitted to recover its costs and attorneys'

legal counsel to enforce any of Tenant's obligations fees as the prevailing party. We therefore hold that the

hereunder, Tenant shall reimburse Landlord for all trial court did not err by refusing to award CenterPlace its

reasonable legal fees incurred by Landlord." attorneys' fees under Section 27 of the lease.

Accordingly, we overrule the remainder of CenterPlace's

CenterPlace, even though it is not a prevailing fourth issue.

party, argues that it is entitled to recover its attorneys'

fees because the last sentence of Section 27 does not VI. Conclusion

require that CenterPlace prevail, only that CenterPlace

retain legal counsel to enforce MCL's lease obligations. Having sustained the first part of CenterPlace's first

But CenterPlace is asking that we ignore the first two issue and part of its fourth issue, and having overruled the

sentences of Section 27 and read the last sentence in remainder of CenterPlace's dispositive issues, we reverse

isolation. This we cannot do because we must consider the portions of the trial court's judgment relating to

the entire document in order to give each provision MCL's claim for statutory damages and attorneys' fees

meaning if possible. See DaimlerChrysler Motors Co., under property code section 93.002. We render judgment

362 S.W.3d at 178. Giving effect to all parts of Section that MCL take nothing on its property code section

27, it seems clear that the parties intended that 93.002 claim. We affirm the remainder of the trial court's

CenterPlace would be entitled to reimbursement of its judgment.

reasonable legal fees if CenterPlace retained counsel to

enforce MCL's obligations under the lease agreements so ---------

long as litigation did not ensue. But if litigation ensued,

only the prevailing party in the litigation would be Notes:

entitled to recover its attorneys' fees. That the parties

[1] Dunning was named as a defendant, individually, in

intended the last sentence of Section 27 to apply in the

the trial court, having been CEO of MCL at the time the

lease was negotiated and executed. He retired in 2005. any manner except by judicial process. Willful exclusion

The final judgment orders that CenterPlace take nothing shall mean preventing the tenant from entering into the

both as to MCL and Dunning. Although he is named in premises with intent to deprive the tenant of such entry.

the style of the case on appeal, CenterPlace has not ..." Id. at 175 (emphasis added) (quoting Tex.Rev.Civ.

sought reversal of the take-nothing judgment as to him. Stat. Ann. art. 5236c (1973)).

[2] At the time of trial, construction had not begun on [13] The preceding sentence in the December 21, 2006

CenterPlace III. letter states, " Please provide details on how you would

like the invoice process for this project to be handled."

[3] The lease defined " Commencement Date" as the

earlier of the date MCL opened for business in the leased [14] The December 29 and January 11 letters also

space or 180 days from the date the lease was executed highlight the lack of an agreement between the parties as

by both parties. to how the remaining TI funds would be released,

whether by lump sum or by CenterPlace's direct payment

[4] The $33,557.59 rent amount was later increased by of invoices. In the absence of such agreement, the trial

2% to $34,071.15 pursuant to section 2(c) of the lease. court could have reasonably concluded that CenterPlace

was obligated to release to MCL the remaining TI funds

[5] It is undisputed that CenterPlace had retained the key upon MCL's November and December requests.

to the premises at all times and that MCL had previously

gained access to the premises by contacting Harpavat and [15] Because we have overruled the fourth part of

meeting him at the premises. CenterPlace's first issue, we need not address the second

and third parts of CenterPlace's first issue. See

[6] MCL paid a total of $1,017,149.48 in rent from the Tex.R.App. P. 47.1. We also need not address

inception of the lease to November 1, 2007. CenterPlace's second or third issues because those issues

are contingent upon CenterPlace's success on the entirety

[7] The trial court granted MCL's motion for directed

of its first issue.

verdict as to CenterPlace's fraud claims. CenterPlace has

not appealed that ruling. [16] CenterPlace does not argue that MCL would not be a

prevailing party under the lease language in the event we

[8] The parties agree that the three exceptions are

overrule any part of CenterPlace's first three issues.

inapplicable in this case.

---------

[9] MCL contended, and the trial court found, that prior

to the time MCL ceased paying rent in November 2007,

CenterPlace notified MCL that its right of possession was

terminated and that it would no longer be allowed to enter

the premises, which notice— under the circumstances of

this case— physically excluded MCL from the premises,

thus " intentionally prevent[ing]" MCL from entering the

premises and constituting both a breach of the lease

agreements and a violation of property code section

93.002.

[10] The same question— what is meant by "

intentionally preventing" — applies both to the trial

court's finding that CenterPlace violated section 93.002

and to its separate finding that CenterPlace breached the

lease and amended lease by " intentionally preventing"

MCL from entering the leased premises.

[11] Two of the three cases address property code section

92.0081, which is the residential-lease version of section

93.002. The two statutes are identical in all material

respects for the purposes of this case, and we thus look to

interpretations of section 92.0081 to guide our analysis

here. Compare Tex. Prop.Code Ann. § 92.0081(b) (West

Supp.2012), with id. § 93.002(c).

[12] The predecessor statute stated in relevant part as

follows: " It shall be unlawful for a landlord or his agent

to willfully exclude a tenant from the tenant's premises in

APPENDIX

#18

EXCERPTED

Page 624 Family Trust. Wade P. Fitzgerald, a real estate broker,

represented Pratt in the sales transaction. The attorney's

345 S.W.3d 624 (Tex.App.-San Antonio 2011) fees provision in the parties' earnest money contract

provided:

Wade P. FITZGERALD and Minot Tully Pratt, IV

and Michael G. Panzarella, as Trustee of the MTPIV 16. ATTORNEY'S FEES: If Buyer, Seller, any broker, or

Trust and Cinco Family Trust, Appellants, any escrow agent is a prevailing party in any legal

proceeding brought under or with relation to this contract

v. or this transaction, such party is entitled to recover from

the non-prevailing parties all costs of such proceeding

SCHROEDER VENTURES II, LLC, Appellee.

and reasonable attorney's fees. This Paragraph 16

survives termination of this contract.

No. 04-10-00371-CV.

Court of Appeals of Texas, Fourth District, San (emphasis added). The contract, which was a standard

contract promulgated by the Texas Association of

Antonio

Realtors, did not define the term " prevailing party."

April 6, 2011 Although not a signatory to the contract, Schroeder

Ventures assumed the buyers' rights and obligations

Page 625 under the contract by assignment.

[Copyrighted Material Omitted] After the sale closed, Schroeder Ventures sued

Fitzgerald, Pratt, and Panzarella for fraud, fraudulent

Page 626 misrepresentation, negligence, gross negligence, and

negligent misrepresentation in the sales transaction. The

Beth Watkins Squires, Law Office of Beth Squires, suit alleged Fitzgerald, Pratt, and Panzarella failed to

Jeff Small, Law Office of Jeff Small, San Antonio, TX, disclose the existence of a sinkhole adjacent to the real

for Appellant. property. Fitzgerald, Pratt, and Panzarella filed pleadings

seeking to recover attorney's fees based on the parties'

G. Thomas Coghlan, Langley & Banack, Inc., San

earnest money contract, but sought no other affirmative

Antonio, TX, for Appellee.

relief.

Sitting: CATHERINE STONE, Chief Justice,

At trial, the jury found in favor of Fitzgerald, Pratt,

KAREN ANGELINI, Justice and MARIALYN

and Panzarella— and against Schroeder Ventures— on

BARNARD, Justice.

all of the liability questions. Specifically, the jury found

Fitzgerald, Pratt, and Panzarella did not commit statutory

OPINION

fraud or fraud against Schroeder Ventures in the

KAREN ANGELINI, Justice. transaction. The jury also found Fitzgerald, Pratt, and

Panzarella did not make a negligent misrepresentation to

The issue presented in this appeal is whether Schroeder Ventures in the transaction. Finally, the jury

defendants who successfully defended claims arising found Fitzgerald, Pratt, and Panzarella were not negligent

from a real estate transaction should have been awarded in the transaction. In fact, the

attorney's fees and costs under the parties' earnest money

contract. The trial court refused to award attorney's fees Page 627

and costs under the contract, relying on the Texas

only party the jury found to be negligent in the

Supreme Court's decision in Intercontinental Group

transaction was Schroeder Ventures.

P'ship v. KB Home Lone Star, L.P., 295 S.W.3d 650

(Tex.2009). We conclude Intercontinental is not

The jury also made findings as to reasonable and

applicable here, and the defendants were entitled to

necessary attorney's fees. The jury found the reasonable

attorney's fees and costs under the plain language of the

and necessary fees for Fitzgerald's attorneys to be

parties' contract. We, therefore, reverse and render

$104,063.00 for trial and $25,000.00 for a successful

judgment awarding attorney's fees and costs.

appeal to the court of appeals. The jury found the

reasonable and necessary fees for Pratt's and Panzarella's

BACKGROUND

attorneys to be $195,688.00 for trial and $25,000.00 for a

Schroeder Ventures II, LLC, purchased a tract of successful appeal to the court of appeals. The jury also

land from Minot Tully Pratt, IV, and Michael G. found Pratt and Panzarella incurred $5,100.00 in costs.

Panzarella, as Trustee of the MTPIV Trust and Cinco

Fitzgerald, Pratt, and Panzarella moved for entry of

judgment in accordance with the jury's verdict. In prevailing party analysis provided in Intercontinental,

response, Schroeder Ventures argued Fitzgerald, Pratt, Fitzgerald, Pratt, and Panzarella were not prevailing

and Panzarella were not entitled to attorney's fees based parties,

on the Texas Supreme Court's analysis of the term "

prevailing party" in Intercontinental. Schroeder also Page 628

argued the attorney's fees provision in the contract did not

apply because Schroeder's claims were not contractual in and therefore, the trial court properly refused to award

nature, and the attorney's fees provision in the contract them attorney's fees.

covered only contractual claims.

The trial court concluded Intercontinental precluded

recovery of attorney's fees by Fitzgerald, Pratt, and

Panzarella, and refused to render judgment in accordance

with the jury's findings on attorney's fees. Instead, the

trial court rendered judgment denying Fitzgerald, Pratt,

and Panzarella recovery on their counterclaim for

attorney's fees, and ordered all attorney's fees and costs to

be paid by the party who incurred them. The trial court

rendered a take-nothing judgment in accordance with the

jury's liability findings.

Thereafter, Fitzgerald, Pratt, and Panzarella brought

this appeal to challenge the trial court's denial of

attorney's fees and costs under the contract.

STANDARD OF REVIEW

Generally, a trial court's award of attorney's fees is

reviewed for an abuse of discretion. Bocquet v. Herring,

972 S.W.2d 19, 20-21 (Tex.1998); Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 881

(Tex.1990). The trial court has discretion to fix the

amount of attorney's fees, but it does not have discretion

to deny attorney's fees entirely if they are proper. Mercier

v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775

(Tex.App.-Corpus Christi 2007, no pet.); World Help v.

Leisure Lifestyles, Inc., 977 S.W.2d 662, 683

(Tex.App.-Fort Worth 1998, pet. denied).

Texas follows the " American Rule" which

prohibits awards of attorney's fees unless specifically

authorized by statute or by a contract between the parties.

MBM Fin. Corp. v. The Woodlands Operating Co., L.P.,

292 S.W.3d 660, 669 (Tex.2009). An issue concerning

the availability of attorney's fees under a statute or a

contract presents a question of law that appellate courts

review de novo. Holland v. Wal-Mart Stores, Inc., 1

S.W.3d 91, 94 (Tex.1999); In re Lesikar, 285 S.W.3d

577, 583 (Tex.App.-Houston [14th Dist.] 2009, orig.

proceeding). Therefore, we apply the de novo standard of

review in this case.

DOES INTERCONTINENTAL APPLY?

Fitzgerald, Pratt, and Panzarella argue that

Intercontinental did not preclude an award of attorney's

fees in this case, and that under the plain language of the

parties' earnest money contract, they were entitled to

recover their attorney's fees from Schroeder Ventures

because they successfully defended against all of its

claims. Schroeder Ventures counters that under the

APPENDIX

#19

EXCERPTED

Page 123 Appellee relies upon the following quotation from

19 C.J. p. 97, § 225: "Statutes limiting in general terms

120 S.W.2d 123 (Tex.Civ.App. 1938) the time within which actions may be brought do not

ordinarily apply to divorce suits, but in the absence of

FRANZETTI statutory limitation the equitable doctrine of estoppel is

usually applied."

Three cases are cited as supporting the text:

FRANZETTI.

Mosely v. Mosely, 67 Ga. 92; Tufts v. Tufts, 8 Utah 142,

30 P. 309, 16 L.R.A. 482; Yeager v. Yeager, 19

No. 8715.

Pa.Dist.R. 726. The case from a district court of

Court of Civil Appeals of Texas, Austin. Pennsylvania is not available, and we have not examined

it.

July 20, 1938

The Georgia case was predicated upon cruel

Rehearing Denied September 21, 1938. treatment, abandonment for over twenty years, and

adultery, all on the part of the husband. The plea of

Appeal from District Court, Ninety-Eighth District, limitation was predicated upon the ground that divorce

Travis County; J. D. Moore, Judge. was a statutory action as to which the statutes of

limitation applied.

Suit for divorce by Louis Franzetti against Gertrude

Franzetti. Judgment for plaintiff, and defendant appeals. It is to be observed that abandonment was one of

the grounds alleged. Even in states having specific

Reversed and remanded. statutes expressly applicable to divorce, abandonment is

held to be a continuing offense as to which limitation

Page 124

does not apply. See Wickliff v. Wickliff, 191 Ark. 411,

86 S.W.2d 553.

Cofer & Cofer, of Austin, for appellant.

In the Utah case, after alleged acts of cruelty on the

Judge Ocie Speer and Wright Stubbs, both of

part of the husband, the spouses separated and obtained a

Austin, for appellee.

"church divorce," which they thought to be legal. The

McCLENDON, Chief Justice. wife (plaintiff) married another man, but ceased to live

with him when she discovered the "church divorce" was

Appeal from a judgment upon a special issue not legal. The husband had married several times since

verdict, granting a divorce to Louis Franzetti (appellee) the "church divorce."

from his wife, Gertrude Franzetti (appellant).

In both of these cases there were elements which

The appeal presents two important questions which would have prevented running of the statute. However, it

appear to be of first impression in this state: is clear that the court in each case intended to hold that

statutes of limitation in general terms are not applicable

(1) Whether R. C. S. Art. 5529, barring all actions to actions for divorce.

"for which no limitation is otherwise prescribed" in four

years, is applicable to actions for divorce; and (2) A careful reading of the Georgia case leads us to the

whether in an action for divorce by the husband on the conclusion that the holding was rested largely upon the

ground of cruel treatment a single act of adultery on the fact that divorce, though the grounds therefor may be

part of the husband constitutes a complete defense to his prescribed by statute, is essentially an equitable action,

suit. and is governed by equitable principles derived largely

from the English common and ecclesiastical law, and

As to the plea of limitation: The suit was predicated therefore general statutes applicable to actions at law will

upon a series of acts of cruel treatment, culminating in a not be held to apply to them, unless there is some

separation of the spouses June 26, 1930. The instant suit expressed legislative intent to that end. We quote from

was brought November 2, 1934. The plea of limitation the opinion: "In other states, where common and

was therefore good as to the case presented by the ecclesiastical law prevailed, for this cause of action

pleadings, if the article cited applies to actions for special statutes in bar were enacted, and until the

divorce. law-making power here so enacts we do not feel

authorized by implication to apply any limitation now in

Page 125 force to this character of suit."

The Utah holding is predicated upon the Georgia Conrads v. Kasch, Tex.Civ.App., 26 S.W.2d 732, error

holding. refused 119 Tex. 449, 31 S.W.2d 630; 28 Tex.Jur. p. 89,

§ 15. In like manner, our statutes of limitations in suits

While in Kittle v. Kittle, 86 W.Va. 46, 102 S.E. for land are held to apply to equitable as well as legal

799, the Supreme Court of West Virginia reached the titles. New York & T. Land Co. v. Hyland, 8

same conclusion, the holding there was rested upon the Tex.Civ.App. 601, 28 S.W. 206, error refused.

proposition that "suits for divorce being cognizable only

in equity, are controlled solely by principles of equity, Where the wrongful act complained of is continuing

and the general statute of limitations does not apply." in its nature, as is the case in cloud upon title, limitation

manifestly does not apply. State M. Corp. v. Ludwig,

On the other hand, it was held by the Supreme 121 Tex. 268, 48 S.W.2d 950; Pannell v. Askew,

Court of North Carolina in Garris v. Garris, 188 N.C. Tex.Civ.App., 143 S.W. 364; Slider v. House,

321, 124 S.E. 314, that a statute in general terms, barring Tex.Civ.App., 271 S.W. 644; White Point Oil & Gas Co.

all actions, not otherwise provided for, in ten years was v. Dunn, Tex.Civ.App., 18 S.W.2d 267; Bookhout v.

applicable to divorce, although there was no statutory McGeorge, Tex.Civ.App., 65 S.W.2d 512.

provision expressly applicable to divorce.

But for its stated exceptions, Art. 5529 is

If the adjudications of other jurisdictions were all-inclusive in its wording. It reads: "Every action other

numerous and uniform, we might be reluctant not to than for the recovery of real estate, for which no

follow them. But the question at issue seems only to have limitation is otherwise prescribed, shall be brought within

reached the courts of last resort in three other states, and four years next after the right to bring the same shall have

the decisions in these are in conflict. There is also another accrued and not afterward."

reason why, in a matter of this sort, decisions of the

common law states should have no impelling force with In view of the above considerations, we hold that

us, namely, the fact that the distinctions between law and where the suit for divorce is based upon acts complete in

equity have never existed in this state, as in those states. themselves and not of a continuing nature, the four years

True, "Equitable principles are a part of the law of statute of limitations applies, as in other cases.

Texas"; but

There is evidence in the record to the effect that

"Every lawyer is informed as to the peculiar appellant continued her alleged acts of cruelty after the

distinctions between the English courts of law and courts separation in June, 1930. For which reason judgment

of chancery, and the differences between their systems of should not be rendered here.

law and remedies and procedure. Every Texas lawyer is

aware also that these distinctions and differences were Upon the second question: While the evidence was

unknown to the Spanish civil law which prevailed in circumstantial, and came from appellant and her mother

early times, and that they are of little if any importance alone, it was clearly sufficient to support a finding that

under the system which has come into being in this state. appellee was guilty of a single act of adultery after the

In truth, they seem to appertain to the realm of phrases, separation.

rather than to that of facts.

Appellant tendered, and the court refused, the

" 'The distinctions between law and equity have following special issue:

never obtained in Texas. They were not recognized in the

earliest times when the civil law of Mexico was "Do you find from a preponderance of the evidence

administered. They were unknown to the Constitution of that the plaintiff since he left defendant, if he did leave

Coahuila and Texas. After independence the Constitution her, has been guilty of adultery with another woman?

of the republic ignored them. Each succeeding Answer 'Yes' or 'No.

Constitution of the state has expressly denied their

"The term adultery as used in this charge means

Page 126 carnal intercourse between a married person and a single

person of the opposite sex."

existence. At most, the distinction in this state is a very

narrow one. In some aspects it may be said to be more Appellee contends that to constitute a defense to the

one of form than of substance.' " 17 Tex.Jur. pp. 4, 5. The husband's suit for divorce on the ground of cruel

quotation is from City of Dallas v. McElroy, treatment the adultery of the husband must be such as

Tex.Civ.App., 254 S.W. 599, error dismissed. would entitle the wife to a divorce on that ground, that is

that "he shall have abandoned her and lived in adultery

The right of trial by jury applies here without with another woman." R.C.S. Art. 4629, Subd. 3. We do

distinction, to both law and equity cases, and so far as we not concur in this contention.

have been able to discover our limitation laws apply alike

in equity as at law. Huggins v. Johnston, Tex.Civ.App., 3 It is conceded that adultery is generally held to be a

S.W.2d 937, affirmed 120 Tex. 21, 35 S.W.2d 688; complete defense to an action for divorce upon any

ground including that of cruel treatment. 15 Tex.Jur. p.

493, § 42; 9 R.C.L. p. 390, § 183.

This rule is not predicated upon the ground that the

guilty plaintiff has committed an act constituting a

statutory ground for divorce in favor of defendant. The

basis is thus stated in 9 R.C.L. p. 387, § 180: "It is a

general principle of the common law that whoever seeks

redress for the violation of a contract resting upon mutual

and dependent covenants, to obtain success must himself

have performed the obligations on his part. Something

analogous to this principle is found in the doctrine of

recrimination, or compensatio criminum, which was

originally borrowed from the canon law, by which the

defendant in divorce proceedings is permitted to contest

the plaintiff's application on the ground of his own

violation of the marriage contract--to set off, to use the

language of the cases, the equal guilt of the plaintiff. The

doctrine of recrimination by the defendant as a defense in

bar of the plaintiff's relief has become fully established in

this country; and though misconduct of the plaintiff, such

as adultery, occurs after the commencement of his or her

suit, it is as fully effective to bar the right to a divorce

therein, as if it had occurred previous to the

commencement of the suit."

We have a statute (Art. 4630) which expressly bars

a suit for divorce predicated upon adultery, where the

plaintiff, whether

Page 127

the husband or the wife, is shown likewise to be guilty of

adultery.

APPENDIX

#20

EXCERPTED

Page 124 Page 130

930 S.W.2d 124 (Tex.App. Tyler 1996) In its first cross-point, SBMA claims that it, as the

prevailing party in the litigation, was entitled to recover

G. RICHARD GOINS CONSTRUCTION court costs and attorney's fees from GCC pursuant to the

COMPANY, INC., Appellant, terms of the parties' agreement. We agree.

v. As noted above, SBMA sold lot 75 in the Pinnacle

Club to GCC. Paragraph 16 of the earnest money contract

S.B. McLAUGHLIN ASSOCIATES,INC., Appellee. provided in relevant part, "[a]ny signatory to this

contract, ... who is the prevailing party in any legal

No. 12-94-00361-CV.

proceeding brought under or with relation to this contract

or transaction shall be additionally entitled to recover

Court of Appeals of Texas, Twelfth District, Tyler

court costs and reasonable attorney fees from the

May 31, 1996 non-prevailing party." At trial, the jury found that SBMA

incurred $50,000 in reasonable attorney's fees in

Page 125 defending against GCC's claims.

Rehearing Overruled Aug. 9, 1996. As a general rule, a prevailing party is not entitled to

recover his attorney's fees from his adversary. Turner v.

Page 126 Turner, 385 S.W.2d 230, 233 (Tex.1964). However,

parties to a contract may provide by agreement that the

T. Wesley Holmes, Donovan Campbell, Jr., Dallas, prevailing party is entitled to recover attorney's fees.

for appellant. Weng Enterprises v. Embassy World Travel, 837 S.W.2d

217, 222-23 (Tex.App.--Houston [1st Dist.] 1992, no

Luke Madole, Dallas, for appellee.

writ). The "prevailing party" is the party who successfully

defends against the action on the main issue. Id. at 223.

Before RAMEY, C.J., and HOLCOMB and

HADDEN, JJ.

In the present case, GCC brought a DTPA action

against SBMA for SBMA's actions in the sale and

HOLCOMB, Justice.

development of the Pinnacle Club. However, SBMA

This is an appeal from the trial court's judgment that prevailed in the litigation by successfully asserting the

Appellant, G. Richard Goins Construction Co., Inc. defense of limitations. The trial court rendered a

("GCC" or "Appellant"), take nothing from S.B. take-nothing judgment against GCC. Thus, by the parties'

McLaughlin Associates, Inc. ("SBMA"). We will affirm agreement, SBMA was entitled to attorney's fees as the

in part, modify in part, and reverse and render in part. prevailing party. At trial, the jury found that SBMA

incurred reasonable attorney's fees in the amount of

SBMA is the owner and developer of the Pinnacle $50,000 in connection with its defense of claims asserted

Club, a planned residential community located in by GCC. We therefore sustain SBMA's first cross-point

Henderson County, Texas. On January 13, 1986, SBMA and hold that the trial court erred in denying SBMA

sold Lot 75 in the Pinnacle Club to GCC. A dispute arose recovery of its attorney's fees.

between SBMA and GCC regarding SBMA's obligations

to develop the Pinnacle Club. On September 19, 1989, In its second cross-point of error, SBMA alleges that

GCC brought suit against SBMA. [1] In its petition, GCC the trial court erred in extending an agreed temporary

alleged that SBMA violated the Texas Deceptive Trade injunction past entry of final judgment. We agree.

Practices Act [2] ("DTPA"). SBMA responded, asserting,

The trial court's final judgment ordered in relevant

inter alia, the affirmative defenses of limitations and

part:

waiver.

That the Agreed Order made in open court herein on

At trial, the jury found that SBMA knowingly

August 25, 1992 and further memorialized in an Agreed

violated the DTPA, and that such violation was the

Order signed herein on March 10, 1993 are [sic] set aside

producing cause of $174,000 in actual damages to GCC.

and held for naught, same expiring upon this judgment

However, the jury also found that GCC discovered, or

becoming final.

should have discovered, SBMA's DTPA violations on

July 30, 1986. Further, the jury found that

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