# John Bryan Langdon v. Leslie Mathison Gilbert > Texas Court of Appeals, 3rd District (Austin) · September 24, 2015 URL: https://www.frixlaw.com/law-library/cases/4073343 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** September 24, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073343 ## Opinion text 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 v. 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 1 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 2 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 3 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 4 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 5 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. 6 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? 7 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. 8 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. 9 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. 10 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 11 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. 12 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 13 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 14 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 15 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. 1 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) 16 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 17 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 18 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. 19 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. - 20 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 21 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. 22 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 23 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. 24 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 25 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 26 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) 27 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) 28 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) 29 APPENDIX #1 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; (c) clean and deodorize the Property's carpets and drapes; and (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 #2 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 A. 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; (c) Post-trial, pre-appeal legal services; (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 #3 EXHIBIT B APPENDIX #4 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 1 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. 2 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 3 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 #5 U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L REDACTED PER TRAP 9.9 L IA IC FF O N U U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L APPENDIX #6 U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L REDACTED PER TRAP 9.9 L IA IC FF O N U U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L 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 v. 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 #7 U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L APPENDIX #8 U N O FF IC IA L APPENDIX #9 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. v. 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 v. 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." v. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073343. Public record. Not legal advice.