Kevin Green and Amy Edwards, Individually and as Trustees of the Edwards Green Revocable Living Trust// Villas on Town Lake Owners Association, Inc. Steve Maitlen Lora Herring Geraldine White Gary Johnson And David Williams v. Villas on Town Lake Owners Association, Inc. Steve Maitlen Lora Herring Geraldine White Gary Johnson David Williams And Austin Valuation Consultants, Ltd.// Kevin Green and Amy Edwards, Individually and as Trustees of the Edwards Green Revocable Living Trust

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00375-CV

Appellants, Kevin Green and Amy Edwards, Individually and as Trustees of The Edwards

Green Revocable Living Trust // Cross-Appellants, Villas on Town Lake Owners

Association, Inc.; Steve Maitlen; Lora Herring; Geraldine White; Gary Johnson; and

David Williams

v.

Appellees, Villas on Town Lake Owners Association, Inc.; Steve Maitlen; Lora Herring;

Geraldine White; Gary Johnson; David Williams; and Austin Valuation Consultants, Ltd.

// Cross-Appellees, Kevin Green and Amy Edwards, Individually and as Trustees of

The Edwards Green Revocable Living Trust

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-003004, THE HONORABLE TIM SULAK, JUDGE PRESIDING

MEMORANDUM OPINION

This is a dispute over the division of proceeds from the sale of a condominium

complex. Kevin Green and Amy Edwards (the Greens) sued the Villas on Town Lake Owners

Association and the members of its board (collectively, the Villas) for failing to properly

compensate the Greens for their four units. The district court dismissed the Greens’ claims on

summary judgment and awarded the Villas their fees and taxable court costs. However, the

district court denied the Villas’ request for additional litigation costs under Section 82.161 of the

Uniform Condominium Act. Both parties appealed. For the following reasons, we will affirm.

BACKGROUND

The Villas at Town Lake was a fifty-eight-unit condominium complex on the

shore of Lady Bird Lake in Austin. The condominium’s governing documents provided that

each owner possessed an undivided ownership interest in the complex’s common elements

proportional to the square footage of the owner’s unit. In 2014, the Greens purchased four units,

thereby obtaining a 5.955403% share of the common elements. The Greens immediately began

renovations to merge their units into a single living space. The renovations were still in progress

two years later when the Sutton Company offered to purchase the entire complex for

$50,850,000. The Greens then stopped the renovations, leaving the units (in the words of their

live petition) “destroyed, empty and uninhabitable.”

Completing the sale required termination of the condominium regime, a process

that is governed by Section 82.068 of the Act. See generally Tex. Prop. Code § 82.068. When

the real property will be sold following termination, the proceeds “must be distributed to unit

owners and lienholders as their interests may appear, in proportion to the respective interests of

unit owners as provided by Subsection (f).” Id. § 82.068(c). The “interest of an owner” for these

purposes is “the fair market value of the owner’s unit, limited common elements, and common

element interest immediately before the termination, as determined by one or more independent

appraisers selected by the association.” Id. § 82.068(f). The “proportion of a unit owner’s

interest to that of all unit owners is determined by dividing the fair market value of the unit

owner’s unit and common element interest by the total fair market values of all the units and

common elements.” Id. The appraisal becomes final thirty days after it is distributed to the unit

owners unless a certain percentage of owners vote to disapprove it. Id.

2

The Association retained Evergreen Valuation Services to conduct an appraisal.

Evergreen determined that “highest and best use” of the property would be “demolition of the

existing improvements and redevelopment with a high-density project.” Based on this

determination, Evergreen did not appraise the individual value of each owner’s units. Instead,

Evergreen started with the value of the land if it was vacant and deducted the cost of demolishing

the existing improvements to arrive at an estimated fair market value of $45,400,000. The

Association submitted the Evergreen Appraisal to the unit owners and informed them that the

proceeds of the sale would be distributed according to each owner’s percentage share of the

common elements. The Evergreen Appraisal became final after thirty days.

Two dissenting owners—Teddy Parker Terhune and Katherine Lindsay—sued the

Association arguing that the sale and appraisal violated the Act (the Terhune suit). They sought

declaratory relief that Section 82.068(f) requires an appraisal of the fair market value of each

individual unit in addition to the value of the owner’s share of the common elements. The

Association answered and counterclaimed for declaratory relief that, among other things, the

appraisal complied with Section 82.068. The Association filed a motion to dismiss and a motion

for summary judgment. The trial court denied relief and concluded that Section 82.068(f)

required appraisal of the fair market value of each owner’s individual unit and their share of the

common elements. The parties reached a mediated settlement agreement in which the

Association agreed to have a second appraisal of the property done and to value each unit “as if it

were being individually sold in an arms-length transaction.” The trial court subsequently

rendered an agreed judgment dismissing the Terhune suit with prejudice.

The Association hired Austin Valuation Consultants to perform a second appraisal

(Austin Appraisal). Austin Valuation determined that the total value of the Greens’ units was

3

$1,093,612, which included a $306,388 deduction for the estimated cost of bringing the units up

to “marketable condition.” As a result, the Greens’ proportional ownership interest fell from

5.955403% in the Evergreen Appraisal to 3.92% in the Austin Appraisal. The Austin Appraisal

was distributed to the owners and became final after thirty days.

The Greens sued the Villas for breach of fiduciary duty under the Act, see id.

§ 82.103(a), and for failing to pay the Greens their full share of the proceeds, see id. § 82.068(f).

They sought a declaration under the Uniform Declaratory Judgment Act (UDJA) that Section

82.068 required that their units “be valued at their common interest element,” i.e., that the

complex be appraised without considering the value of the individual units. See Tex. Civ. Prac.

& Rem. Code § 37.004 (providing that “[a] person . . . whose rights, status, or other legal

relations are affected by a statute . . . may have determined any question of construction or

validity arising under the [] statute . . . and obtain a declaration of rights, status, or other legal

relations thereunder”). In effect, the Greens argued that the proceeds should be distributed

according to the Evergreen Appraisal rather than the Austin Appraisal. The Greens also sued

Austin Valuation for negligence in conducting the appraisal.

The Villas answered and asserted the affirmative defenses of res judicata and

collateral estoppel, among other defensive theories, and sought attorney’s fees. Austin

Valuation, which was represented by different counsel, also answered. While the litigation was

ongoing, the owners voted to terminate the condominium regime and sell the property to Sutton.

Republic Title Insurance Company, which handled the sale, filed an interpleader action and

deposited the portion of the proceeds set aside for the Greens into the registry of the court. By

agreement of the parties, all but $250,000 was distributed to the Greens.

4

The district court granted summary judgment and rendered a take nothing

judgment in favor of Austin Valuation. The Villas then filed a partial traditional motion for

summary judgment on their affirmative defenses. The Greens subsequently filed a partial motion

for summary judgment arguing that there was no evidence to support the Villas’ affirmative

defenses and that the Greens were entitled to judgment as matter of law on their affirmative

claims. See Tex. R. Civ. P. 166a(c), (i). The district court granted the Villas’ motion for

summary judgment expressly on their res judicata and collateral estoppel defenses and denied the

Greens’ motion.

The parties (excluding Austin Valuation) then tried the issue of attorney’s fees to

the bench. Cathy Kyle, one of the Villas’ attorneys, testified in support of their fee application,

and the district court admitted the resumes of the Villas’ counsel and redacted fee statements

from three firms that worked on the case for the Villas. The district court later rendered a final

judgment that incorporated its summary judgment rulings and awarded the Villas $210,438.50 in

attorney’s fees incurred at trial, conditional appellate fees, and taxable costs of court, and denied

the Villas’ request for $14,000 in “pass-through litigation expenses” under the Act. See Tex.

Prop. Code § 82.161(b) (“The prevailing party in an action to enforce the declaration, bylaws, or

rules is entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing

party.”). The district court filed findings of fact and conclusions of law in support of its

judgment. Both parties filed notice of appeal.

5

THE GREENS’ APPEAL

The Greens argue on appeal that the district court erred by granting the Villas’

traditional motion for summary judgment and denying the Greens’ combined motion. We begin

with the ruling on the Villas’ traditional motion because it is dispositive.

Summary Judgment

We review an order granting summary judgment de novo, taking as true all

evidence favorable to the nonmovant and indulging every reasonable inference in the

nonmovant’s favor. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). A

party moving for traditional summary judgment has the burden to show that no genuine issue of

material fact exists and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P.

166a(c); JLB Builders, 622 S.W.3d at 864. A defendant moving for summary judgment on an

affirmative defense has the burden to conclusively establish each element of that defense. Eagle

Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021).

Res judicata, also known as claim preclusion, “bars the relitigation of claims that

have been finally adjudicated or that could have been litigated in the prior action.” Engelman

Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017). The party relying on res

judicata must prove: (1) a prior final determination on the merits by a court of competent

jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on

the same claims that were or could have been raised in the first action. Travelers Ins. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). “The judgment in the first suit precludes a second action by

the parties and their privies on matters actually litigated and on causes of action or defenses

arising out of the same subject matter that might have been litigated in the first suit.” Id. (citing

6

Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984)). The first and second

elements are in dispute.

The Greens argue that there was no final judgment on the merits because the suit

“was voluntarily dismissed by the Terhune plaintiffs as a result of a settlement.” But the

Terhune suit was dismissed with prejudice, and “it is well established that a dismissal with

prejudice functions as a final determination on the merits.”1 Ritchey v. Vasquez, 986 S.W.2d 611,

612 (Tex. 1999) (per curiam) (citing Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (per

curiam)); see Energy v. Trinity Universal Ins. Grp., No. 03-12-00842-CV, 2014 WL 2522203, at

*2 (Tex. App.—Austin May 29, 2014, no pet.) (mem. op.) (“Dismissal with prejudice constitutes

a final determination on the merits.”). Further, a “judgment of dismissal entered by agreement of

the parties in pursuance of a compromise or settlement of a controversy becomes a judgment on

the merits.” Lexington v. Treece, No. 01-17-00228-CV, 2021 WL 2931354, at *9 (Tex. App.—

Houston [1st Dist.] July 13, 2021, no pet.) (citing Essman v. Gen. Acc. Ins. Co. of Am.,

961 S.W.2d 572, 574 (Tex. App.—San Antonio 1997, no pet.)). We conclude that the agreed

judgment of dismissal in the Terhune suit is a final determination on the merits for purposes of

res judicata.

Next, the Greens argue that the record does not conclusively establish that they

were in privity with the Villas. A person can be in privity with a party to a judgment in at least

1

The judgment stated:

It is therefore ORDERED that this lawsuit is dismissed in its entirety with

prejudice to refiling the same, including any claims arising out of the

Rudy Robinson appraisal, Sutton contract for sale, termination of condominium

regime for the Sutton sale or distribution from the sale of The Villas resulting

from the Sutton sale.

7

three ways: (1) by controlling the action that resulted in the judgment without being a party to it;

(2) by having its interests represented by a party to the action; or (3) by acting as a successor in

interest to a party to the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex.

1996). However, “[t]here is no general definition of privity that can be automatically applied

in all res judicata cases; the circumstances of each case must be examined.” Getty Oil Co.

v. Insurance Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992).

“An analysis to determine whether a person is in privity with a party to a

prior judgment begins by examining the interests the parties shared.” Truck Ins. Exch. v.

Mid-Continent Cas. Co., 320 S.W.3d 613, 618 (Tex. App.—Austin 2010, no pet.). Privity exists

if “the parties share an identity of interests in the basic legal right that is the subject of litigation.”

Amstadt, 919 S.W.2d at 653. In the Terhune suit, the Association sought a finding that the

Evergreen Appraisal—which did not independently appraise the value of the units—complied

with Section 82.068. The Greens now seek a finding that Section 82.068 requires that their units

“be valued at the common interest elements,” i.e., the value of the land. That both the

Association and the Greens sought essentially the same legal ruling on the same facts is “some

indication that they share an identity of interest in the basic legal right that is the subject of both

lawsuits.” See BP Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 202 (Tex.

App.—Texarkana 2017, no pet.). Moreover, the Greens were among the owners who voted for

the Association to defend the Terhune suit on their behalf, see Tex. Prop. Code § 82.102(a)(1)(4)

(providing that owners association may “institute, defend, intervene in, settle, or compromise

litigation or administrative proceedings in its own name on behalf of itself or two or more unit

owners on matters affecting the condominium”), and Kevin Green, an attorney, was closely

involved in the litigation. In November 2016, Green emailed counsel for the Association that he

8

would not be intervening and requested to review the pleadings in the case. Two days later,

Green emailed counsel that he had “reviewed the MSJ pleadings and they look great.” Four days

later, Green approached Lindsay and attempted to personally negotiate a settlement. Green

wrote to counsel again later that he considered their efforts a “joint prosecution.” The evidence

shows that the Greens considered that the Association represented their interests in the

Terhune lawsuit.

The Greens respond that the Association turned against them by rejecting their

proposal “to pay the Terhune plaintiffs in order to obtain favorable provisions regarding

appraisal as part of the settlement of the Terhune Lawsuit.” As proof of this allegation, the

Greens point to a letter Kevin Green received from the Association’s counsel. The letter states

that it is in response to Green’s “prior allegation” that the Association was “negligent in not

enabling [Green] to pay Lindsay and Terhune off to settle the lawsuit.” Even if we assume that

the Association would have had such a duty and that violating it would destroy privity, the letter

also states that Green “had meetings with [Terhune and Lindsay] and you yourself asked them

for a dollar figure pay off and they declined to provide you one.” The letter continues that the

Association asked Terhune and Lindsay “for a dollar figure payoff and they declined to ever

provide one. The first and only dollar figure they present as something that would settle the case

came at mediation, and even that was only in conjunction with a new appraisal.” The Greens do

not dispute the factual assertions in the letter or explain what more the Association should have

done to represent their interests.

In sum, the evidence conclusively shows that the Greens and the Villas share “an

identity of interests in the basic legal right that is the subject of litigation.” See Amstadt,

919 S.W.2d at 653. We therefore conclude that the Villas were entitled to summary judgment on

9

their affirmative defense of res judicata. Because this ruling is sufficient to uphold the dismissal

of the Greens’ claims with prejudice, we do not reach the Greens’ remaining challenges to the

summary judgment. See Tex. R. App. P. 47.1 (instructing appellate courts to “hand down a

written opinion that is as brief as practicable but that addresses every issue raised and necessary

to final disposition of the appeal”).

Attorney’s Fees

Next, the Greens challenge the award of $210,438.50 in attorney’s fees and

conditional appellate fees under the UDJA and the Act. See Tex. Civ. Prac. & Rem. Code

§ 37.009 (“In any proceeding under [the UDJA], the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.”); Tex. Prop. Code § 82.161(b) (“The

prevailing party in an action to enforce the declaration, bylaws, or rules is entitled to reasonable

attorney’s fees and costs of litigation from the nonprevailing party.”). The Greens argue that the

district court erred because (1) there is insufficient evidence that the fees are reasonable and

necessary; (2) the Villas failed to segregate their fees; and (3) the award of appellate fees is not

contingent on the Villas prevailing.

Sufficiency of the Evidence

First, the Greens argue that there is legally insufficient evidence that the fees were

reasonable.2 We review an award of attorney’s fees for an abuse of discretion. See Sullivan

2

The Greens argue in this issue that the Villas “provided legally and factually

insufficient evidence of its reasonable and necessary attorneys’ fees” but make only legal

sufficiency arguments—that there is “no evidence” to support the reasonableness of the fees.

See, e.g., Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). They also

ask this Court to render a take nothing judgment, relief which is not available in a factual

sufficiency challenge. See Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex.

10

v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (stating that decision regarding award of

“reasonable attorney’s fees” generally “rests within the court’s sound discretion”). “It is an

abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding

legal principles, or to rule without supporting evidence.” Bocquet v. Herring, 972 S.W.2d 19, 21

(Tex. 1998) (internal citations omitted). However, a trial court does not abuse its discretion “if

some evidence reasonably supports the court’s ruling.” Henry v. Cox, 520 S.W.3d 28, 34

(Tex. 2017).

When an appellant challenges the legal sufficiency of a finding on which it did

not have the burden of proof, it must show that there is no evidence to support the finding.

Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). We will sustain a

legal sufficiency challenge if: (1) there is a complete lack of evidence of a vital fact, (2) we are

barred by rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact, (3) there is no more than a scintilla of evidence offered to prove a vital fact, or (4) the

evidence conclusively establishes the opposite of the vital fact. Pike v. Texas EMC Mgmt., LLC,

610 S.W.3d 763, 783 (Tex. 2020). When reviewing the record for legal sufficiency, we consider

the evidence in the light most favorable to the challenged finding, crediting favorable evidence if

a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder

could not. Id.

1985) (reiterating that if appellate court finds evidence factually insufficient “it must reverse the

judgment of the trial court and remand for new trial” and has “no jurisdiction to render”

judgment). Because the Greens make only legal sufficiency arguments and request that we

reverse and render judgment in its favor, we construe this issue as a legal sufficiency challenge.

See Maynard v. Booth, 421 S.W.3d 182, 183 (Tex. App.—San Antonio 2013, pet. denied)

(construing similarly-briefed issue as legal-sufficiency challenge).

11

To support its claim for attorney’s fees, the Villas submitted fee statements from

the three law firms that have worked on the case, biographies of the attorneys who represented

the Villas, and the testimony of one of their counsel, Cathy Kyle. Kyle testified that she

concluded the fees incurred in this case were reasonable by employing the lodestar method,

which entails multipying the reasonable hours worked by a reasonable hourly rate, the product of

which is the base fee or lodestar. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP,

578 S.W.3d 469, 498 (Tex. 2019). The supreme court has held that sufficient evidence to

support this calculation “includes, at a minimum, evidence of (1) particular services performed,

(2) who performed those services, (3) approximately when the services were performed, (4) the

reasonable amount of time required to perform the services, and (5) the reasonable hourly rate

for each person performing such services.” Id. The lodestar method is essentially a “short hand

version” of the Arthur Andersen factors for assessing the reasonableness of attorney’s fees. See

id. at 490 (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.

1997)). Kyle discussed each of the lodestar factors and several of the more specific Arthur

Anderson factors in detail during her testimony.

The Greens argue that Kyle’s testimony amounts to no evidence because the fee

statements are too heavily redacted to enable the district court to determine the particular

services performed. The fee statements show the name of the client, the matter name, the date of

the service rendered, the initials of the person completing the service, a description of the work

that was done, and the time spent recorded in tenths of an hour. Some of the entries are partially

redacted. For example, an entry for August 24, 2017 states that Timothy B. Poteet spent half an

hour in a “telephone conference [with] client attorney, C. Heyer, regarding [redacted].” An entry

dated May 14, 2017 states that Karen C. Burgess spent .70 of an hour on: “[E]mails from

12

[redacted]; draft declaration release affirming validity of the termination of the Condominium

regime and email correspondence regarding same.” Other redactions hide the topics attorneys

spent time researching, the substance of communications between attorney and client, as well as

what appear to be inter-firm communications regarding the case. The Greens argue that this is

insufficient because a fee applicant must submit written records to prove reasonable time spent

on the case.

We disagree. The Greens rely on the supreme court’s observation in El Apple that

while an attorney can testify to the performance of specific tasks, “in all but the simplest cases,

the attorney would probably have to refer to some type of record or documentation to provide

this information.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). But the supreme

court later explained that “El Apple does not hold that a lodestar fee can only be established

through time records or billing statements.” City of Laredo v. Montano, 414 S.W.3d 731, 736

(Tex. 2013); see Rohrmoos, 578 S.W.3d at 502 (reaffirming that “[c]ontemporaneous billing

records are not required to prove that the requested fees are reasonable and necessary” but are

“strongly encouraged”). Even if we assume that the Greens are correct that the redactions are

too extensive for the fee records to support the judgment alone, the district court could

reasonably credit Kyle’s testimony concerning the other Arthur Anderson factors: the fees

customarily charged in Travis County for similar services; the likelihood that working on the

case would preclude acceptance of other employment by the lawyer; that the case involved

several legal questions of first impression; that the Greens sought more than a million dollars in

damages; and the expertise and reputation of the counsel involved in the case. See Arthur

Andersen, 945 S.W.2d at 818. The Greens do not dispute that Kyle—an attorney who has

practiced law in Austin for more than thirty-five years—was knowledgeable regarding these

13

matters, and they presented no evidence contradicting her testimony. Considering the entire

record in the light most favorable to the fee award, we conclude that there is legally sufficient

evidence that the $210,438.50 in attorney’s fees are reasonable and necessary. See McMahon

v. Zimmerman, 433 S.W.3d 680, 693 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“[C]ourts

are free to look at the entire record, the evidence presented on reasonableness, the amount in

controversy, the common knowledge of the participants as lawyers and judges, and the relative

success of the parties to determine a reasonable fee.”). The district court therefore did not abuse

its discretion in awarding these fees.

Segregation of Fees

Next, the Greens argue that the Villas failed to segregate their attorney’s fees.

Texas follows the American Rule for attorney’s fees, which provides that “a party may not

recover attorney’s fees unless authorized by statute or contract.” Bailey v. Smith, 581 S.W.3d 374,

396 (Tex. App.—Austin 2019, pet. denied) (citing Wells Fargo Bank, N.A. v. Murphy,

458 S.W.3d 912, 915 (Tex. 2015)). Fee claimants must therefore “segregate fees between claims

for which they are recoverable and claims for which they are not.” Tony Gullo Motors I, L.P.

v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). An exception to the duty to segregate exists “when

discrete legal services advance both a recoverable and unrecoverable claim that they are so

intertwined that they need not be segregated.” Id. at 313–14. Whether segregation is required is

a mixed question of law and fact. Id. at 313.

The Greens argue that the Villas were required to segregate the fees relating to

defense of the breach of fiduciary duty claim and the negligence claim. The Greens asserted the

negligence claim only against Austin Valuation, which was represented by different counsel, and

14

they have not pointed to anything in the fee statements showing that the Villas’ lawyers assisted

in the defense of that claim. Instead, the fee statements reflect that the Villas’ counsel billed for

time spent analyzing the effect of that dispute on their defense of the Greens’ claims: reviewing

Austin Valuation’s responses to the Greens’ requests for disclosure and preparing

correspondence regarding it; analyzing Austin Valuation’s special exceptions; reviewing

documents produced by Austin Valuation in discovery; and attending the hearing on the Austin

Valuation’s motion for summary judgment. The Greens particularly criticize the billing for

counsel attending the hearing, but Kyle testified that attending the hearing was necessary because

the outcome would impact the distribution of the proceeds. The Greens do not explain how any

of these services failed to advance the Villas’ defense of the fiduciary duty claim. We conclude

that the Villas were not required to segregate these fees.

The Greens’ next argument concerns the Act’s fee shifting statute, which

provides: “[t]he prevailing party in an action to enforce the declaration, bylaws, or rules is

entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing party.”

Tex. Prop. Code § 82.161(b). The Greens argue that this section “applies to the [Greens’] claim

that they were not properly paid under Texas Property Code § 82.068, but it does not apply to

their claim for breach of fiduciary duty against the Villas.” To support this argument, the Greens

cite a case stating that attorney’s fees are not recoverable on a common-law claim for breach of

fiduciary duty absent a statute or contract. See LandAmerica Commonwealth Title Co. v. Wido,

No. 05-14-00036-CV, 2015 WL 6545685, at *11 (Tex. App.—Dallas Oct. 29, 2015, no pet.)

(mem. op.) (collecting cases). But this presumes that the Greens alleged breach of a fiduciary

duty arising outside the Act. The Greens specifically alleged that the Villas breached a fiduciary

relationship created by the Act. See Tex. Prop. Code § 82.103(a) (providing that owners’

15

association can only act through its board and that each “officer or member of the board is liable

as a fiduciary of the unit owners for the officer’s or member’s acts or omissions”). The Greens

do not explain why Section 81.161 applies to a claim that the Villas failed to pay the Greens as

required by Section 82.068 but not for breach of fiduciary duty under Section 82.103. Under

these circumstances, we conclude that the Greens failed to demonstrate that the district court’s

refusal to require segregation was error. See Persson v. MC-Simpsonville, No. 03-20-00560-CV,

2021 WL 3816332, at *2 (Tex. App.—Austin Aug. 27, 2021, no pet. h.) (mem. op.) (“It is an

appellant’s burden to show error on appeal.” (citing Christiansen v. Prezelski, 782 S.W.2d 842,

843 (Tex. 1990))).

Unconditional Appellate Fees

Finally, we turn to the Greens’ argument that the award of appellate fees is

improper because it is not conditioned on the Villas successfully defending the judgment on

appeal. An “award of appellate attorney’s fees should be dependent on which party prevails

on appeal.” See Northern & W. Ins. Co. v. Sentinel Inv. Grp., 419 S.W.3d 534, 541 (Tex.

App.—Houston [1st Dist.] 2013, no pet.). The Villas agree and ask us to modify the judgment.

We agree and will modify the judgment to condition the recovery of fees on a successful appeal.

See id. (explaining that appellate courts “may modify a trial court’s judgment to make the award

of appellate attorney’s fees contingent upon the receiving party’s success on appeal”).

Conclusion

We sustain the Greens’ issue challenging the unconditional award of appellate

fees. We overrule their remaining challenges to the fee award.

16

CROSS-APPEAL

The Villas cross-appeal the district court’s refusal to award them $14,000 in

pass-through litigation costs under Section 82.161 of the Act. The Greens respond that the Villas

failed to invoke our appellate jurisdiction by filing a timely notice of cross-appeal. We agree

with the Greens.

A timely notice of appeal is necessary to invoke this Court’s appellate

jurisdiction. See In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010) (orig.

proceeding); Housing Auth. of City of Austin v. Elbendary, 581 S.W.3d 488, 491 (Tex. App.—

Austin 2019, no pet.). Generally, notice of appeal is due within thirty days after the judgment is

signed. Tex. R. App. P. 26.1. However, the deadline is extended to ninety days if any party

timely files, as relevant here, a proper request for findings of fact and conclusion of law. Id.

R. 26.1(a)(4). If any party timely files notice of appeal, “another party may file a notice of

appeal within the applicable period stated above or 14 days after the first filed notice of appeal,

whichever is later.” Id. R. 26.1(d). The deadline to file a notice of appeal can be extended if,

within fifteen days of the deadline, the appellant files the notice of appeal in the trial court and a

proper motion for extension of time in the appellate court. See id. R. 26.3. However, “once the

period for granting a motion for extension of time under [Rule 26.3] has passed, a party can no

longer invoke the appellate court’s jurisdiction.” See Verburgt v. Dorner, 959 S.W.2d 615,

617 (Tex. 1997) (construing predecessor to Rule 26.3); John v. RLJ Equities, LLC,

No. 03-20-00019-CV, 2020 WL 594489, at *1 (Tex. App.—Austin Feb. 6, 2020, no pet.) (mem.

op.); see also Tex. R. App. P. 2 (establishing that appellate courts may not “alter the time for

perfecting an appeal in a civil case”).

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The district court signed the final judgment on April 27, 2020. The Greens filed

their requests for findings and conclusions the following day, which extended the deadline to

July 27, 2020. See Tex. R. App. P. 26.1(a)(4). The Greens timely filed their notice of appeal on

July 21, 2020, meaning the Villas’ notice of cross-appeal was due fourteen days later, on August

4, 2020. See id. R. 26.1(d). The Villas filed their notice of appeal on August 20, 2020 and a

motion for extension of time to file the notice on August 24, 2020. The Villas did not dispute in

their motion that the notice of appeal was untimely under the rules of appellate procedure.

Instead, the Villas argued that this Court had independent authority under the supreme court’s

then-applicable emergency order to extend all appellate deadlines, including for the filing of the

notice of appeal. This Court granted the motion on November 6, 2020 without explaining our

reasoning. The Greens ask us to revisit this decision, and the Villas have responded in their

brief. We will grant the Greens’ request to reconsider this matter because “we have an

obligation to examine our jurisdiction any time it is in doubt[.]” Pike, 610 S.W.3d at 774.

As the source of our purported authority to extend the deadline, the Villas rely on

the twenty-first emergency order, which provides:

Any deadline for the filing or service of any civil case that falls on a day between

March 13, 2020, and September 1, 2020, is extended until September 15, 2020.

This does not include deadlines for perfecting appeal or for other appellate

proceedings, requests for relief from which should be directed to the court

involved and should be generously granted.

Twenty-First Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 128, 129

(Tex. 2020) (order) (emphasis added). The Villas argue that the italicized text granted the

appellate courts “authority and jurisdiction” to extend the deadline for filing the notice of appeal.

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We construe court orders, including the supreme court’s emergency orders,

“according to the plain meaning of their terms.” Kim v. Ramos, ___ S.W.3d ___, ___,

No. 01-20-00861-CV, 2021 WL 2692143, at *9 (Tex. App.—Houston [1st Dist.] July 1, 2021,

no pet.). In doing so, we construe the order as a whole and seek to give effect to every part. See

Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 626 (Tex. 2011) (per curiam); In re Piatt Servs.

Int’l, Inc., 493 S.W.3d 276, 281 (Tex. App.—Austin 2016, orig. proceeding [mand. denied]).

While the order states that “requests for relief” from deadlines for perfecting

appeal should be “generously granted,” nothing in the order alters the rules of appellate

procedure or purports to grant jurisdiction where none would otherwise exist. Construing the

order as a whole, we conclude that the supreme court’s admonition to “generously grant[]”

requests for extension of appellate deadlines was a direction to “courts to exercise their

discretion liberally where that discretion exists” under the rules of appellate procedure. See

Cantu v. Trevino, No. 13-20-00299-CV, 2020 WL 6073267, at *5 (Tex. App.—Corpus Christi–

Edinburgh Sept. 24, 2020, no pet.) (mem. op.). In other words, the twenty-first emergency order

does not empower us to extend the deadline for perfecting appeal beyond the time authorized by

Rule 26.3.3 See id. (reaching same conclusion); Satterthwaite v. First Bank, No. 02-20-00182-CV,

2020 WL 4359400, at *1 n.1 (Tex. App.—Fort Worth July 30, 2020, no pet.) (mem. op.) (same);

3

This Court recently assumed without deciding that the twenty-second emergency

order granted us discretion to extend appellate deadlines and evaluated the merits of the

appellant’s motion to extend. Porch v. Daimler Trucks N. Am., LLC, No. 03-20-00445-CV,

2020 WL 7063575, at *2 (Tex. App.—Austin Dec. 3, 2020, pet. denied) (mem. op.). We do not

do the same here because the two orders have substantially different language. The twenty-

second order authorizes “all courts in Texas” to “modify or suspend any and all deadlines and

procedures, whether prescribed by statute, rule, or order” except in certain family-law cases.

Twenty-Second Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 129, 129

(Tex. 2020). The twenty-first order contains nothing analogous. See generally Twenty-First

Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 128, 129 (Tex. 2020).

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Lane v. Lopez, No. 14-20-00633-CV, 2020 WL 6439689, at *1 & n.1 (Tex. App.—Houston

[14th Dist.] Nov. 3, 2020, pet. denied) (mem. op.) (same); see also In re D.W., 249 S.W.3d 625,

639–40 (Tex. App.—Fort Worth 2008, no pet.) (“The rules of civil and appellate procedure have

the force and effect of statutes and as binding supreme court decisions.”).

Because a late-filed notice of appeal does not confer jurisdiction on this Court, we

have no option but to dismiss the Villas’ cross-appeal for want of jurisdiction. See In re United

Servs. Auto. Ass’n, 307 S.W.3d at 307.

CONCLUSION

We dismiss the cross-appeal for want of jurisdiction. We modify the judgment to

condition the award of appellate attorney’s fees on the Villas succeeding on appeal, and we

affirm the judgment as modified. Tex. R. App. P. 43.2(b).

__________________________________________

Edward Smith, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Modified and, as Modified, Affirmed in Part; Dismissed in Part

Filed: October 22, 2021

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