In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00203-CV
ANGELA KATE WHITTENBURG WANG, ET AL., APPELLANTS
V.
JOHN BURKHART WHITTENBURG, ET AL., APPELLEES
On Appeal from the 47th District Court Randall County, Texas Trial Court No. 81141A, Honorable Dan Schaap, Presiding
March 21, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ. 1
This appeal concerns the recovery of attorney’s fees as damages for a breach of
contract. 2 The trial court denied recovery. We affirm.
1 Justice Doss not participating.
2 The parties to this appeal are members of the Whittenburg Family. Appellants consist of Angela Kate Whittenburg Wang, Justin McKee Whittenburg, Benjamin Burkhart Whittenburg, Secily Sibil Whittenburg Torn, Amanda Grace Whittenburg Brack, Lois Whittenburg Rowley, Roy Whittenburg, Jr., and Ann Boxwell Bynum Whittenburg (collectively referred to as Angela Kate or Angela Kate litigants). Appellees consist of John Burk Whittenburg, Evelyn Whittenburg Coltrin, Anne Whittenburg Johnston, Carol Snow Whittenburg, George Burkhart Whittenburg II (collectively referred to as John Burk or John Burk litigants). Background
The contract breached consisted of a compromise and settlement agreement
(Agreement One) struck in effort to resolve multiple suits pending in both Randall and
Potter Counties. The parties to those suits were members of the Whittenburg Family,
and a 20,000-acre family ranch crossing from New Mexico into Colorado served as the
source of the underlying controversy. Via Agreement One, the parties promised to
cooperate in an in-kind partition of the ranch. If those efforts proved unsuccessful, then
it was understood other legal proceedings could be pursued to achieve the desired end.
Those other proceedings (which apparently concerned suits for partition in New Mexico
and Colorado) were addressed in a different settlement agreement (Agreement Two),
which agreement was incorporated into Agreement One. 3
Furthermore, Agreement Two contained a provision stating that if the parties could
not “agree on a partition in kind” then they “stipulate that the Court shall instruct the
Commissioners to partition in kind the deeded lands and the leasehold interests” (the
Stipulation). Because the parties could not themselves successfully reach a satisfactory
partition in kind, the Angela Kate litigants turned to the New Mexico court to effectuate a
partition in kind per the aforementioned clause in Agreement Two. The John Burk
litigants, though, impeded that effort. Instead, they “asserted positions that were totally
at odds with their obligation to follow through in a straightforward manner with the
stipulation to which they had already agreed; i.e. to ‘stipulate that the Court shall instruct
the Commissioners to partition in kind the deeded lands and the leasehold interests.’”
3 Agreement Two arose from litigation pending in New Mexico.
2 Eventually, the John Burk litigants “conceded to the above stipulation in the New
Mexico Litigation.” But, the partition had yet to occur, and the New Mexico Litigation
remained pending when Angela Kate sued John Burk in Randall County for breach of
contract, restitution, and promissory estoppel.
The Randall County trial court tried the dispute. It rejected the claims for restitution
and promissory estoppel but held that John Burk’s “failure to comply with the Partition in
Kind Requirement in the New Mexico Litigation constituted a breach of the settlement
agreement.” It also found that the breach “caused [Angela Kate] to incur $216,112 in
reasonable and necessary attorneys’ fees in the New Mexico Litigation in excess of the
amount of reasonable and necessary attorneys’ fees that [Angela Kate] would have
incurred in the New Mexico Litigation if . . .” John Burk had not breached the clause in
Agreement Two. It also held that 1) “[t]he attorney’s fees incurred by Plaintiffs in the New
Mexico Litigation do not constitute damages in this lawsuit” and 2) Angela Kate litigants
were “not entitled to recover their attorney’s fees incurred in the captioned matter because
they did not recover an award for damages, specific performance, or injunctive relief, or
based on a cause of action for which attorney’s fees are recoverable.” That resulted in
the trial court entering judgment awarding Angela Kate nothing and this appeal.
Issue One—Misapplication of Law
Angela Kate initially contends the trial court misapplied Texas contract law and
erred in denying damages from the breach. The misapplication involved the trial court’s
denial of litigation expenses (attorney’s fees) incurred when John Burk failed to abide by
the Stipulation regarding partition in kind. As urged by Angela Kate, “[t]he parties
bargained for the final terms in the Settlement Agreement, which included an agreement
3 to avoid delay and contested litigation in the event further partition proceedings were
required.” Yet, John Burk “disagreed and delayed at every turn in the New Mexico
Partition Suit” thereby breaching “the Partition in Kind Requirement.” That caused Angela
Kate “to engage in lengthy and expensive litigation in New Mexico” which “deprived [them]
of the very thing they had bargained for . . . a voluntary, cooperative process that would
avoid either party incurring excessive fees in litigation.” Additionally, the attorney’s fees
related to securing compliance with the partition in kind clause were allegedly the
foreseeable and natural result of the breach and “the very thing the parties sought to avoid
by the terms of their agreement.” Thus, they represent the bargain lost and are
recoverable as damages. We overrule the issue.
That Angela Kate is not suing upon a provision in either Agreement One or Two
expressly allowing the recovery of attorney’s fees as damages for a breach is certain.
Instead, she argues that attorney’s fees should be awarded as consequential damages
caused by enforcing a contract executed to avoid the incurrence of unnecessary
attorney’s fees and litigation expenses. In other words, the Angela Kate litigants executed
Agreement One and Two to settle a dispute and thereby avoid further litigation expense,
namely attorney’s fees. Because the John Burk litigants denied them the benefit of that
bargain, the cost of regaining it (i.e., enforcing the agreed -upon way to partition) should
be recoverable damages. Yet, our own precedent poses an obstacle.
In Tomorrow Telecom, Inc. v. Johnson, No. 07-19-00427-CV, 2021 Tex. App.
LEXIS 1890 (Tex. App.—Amarillo Mar. 11, 2021, no pet.) (mem. op), we held that
[a]ttorney’s fees incurred in a breach of contract action do not qualify as damages.” Id.
at *14. Like the circumstances at bar, those in Tomorrow Telecom, Inc. also involved a
4 settlement agreement and its breach. The settlement agreement there, though, was one
struck under Texas Rule of Civil Procedure 11. Nevertheless, Rule 11 agreements are
contractual in nature, see id. at *7, and enforceable as a contract. David L. Smith &
Assocs., L.L.P. v. Stealth Detection, Inc., 327 S.W.3d 873, 880 (Tex. App.—Dallas 2010,
no pet.) (stating that a “Rule 11 agreement is enforceable as a contract”). And, when
Johnson sought to enforce the Rule 11 accord through his allegation of breached
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00203-CV
ANGELA KATE WHITTENBURG WANG, ET AL., APPELLANTS
V.
JOHN BURKHART WHITTENBURG, ET AL., APPELLEES
On Appeal from the 47th District Court Randall County, Texas Trial Court No. 81141A, Honorable Dan Schaap, Presiding
March 21, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ. 1
This appeal concerns the recovery of attorney’s fees as damages for a breach of
contract. 2 The trial court denied recovery. We affirm.
1 Justice Doss not participating.
2 The parties to this appeal are members of the Whittenburg Family. Appellants consist of Angela Kate Whittenburg Wang, Justin McKee Whittenburg, Benjamin Burkhart Whittenburg, Secily Sibil Whittenburg Torn, Amanda Grace Whittenburg Brack, Lois Whittenburg Rowley, Roy Whittenburg, Jr., and Ann Boxwell Bynum Whittenburg (collectively referred to as Angela Kate or Angela Kate litigants). Appellees consist of John Burk Whittenburg, Evelyn Whittenburg Coltrin, Anne Whittenburg Johnston, Carol Snow Whittenburg, George Burkhart Whittenburg II (collectively referred to as John Burk or John Burk litigants). Background
The contract breached consisted of a compromise and settlement agreement
(Agreement One) struck in effort to resolve multiple suits pending in both Randall and
Potter Counties. The parties to those suits were members of the Whittenburg Family,
and a 20,000-acre family ranch crossing from New Mexico into Colorado served as the
source of the underlying controversy. Via Agreement One, the parties promised to
cooperate in an in-kind partition of the ranch. If those efforts proved unsuccessful, then
it was understood other legal proceedings could be pursued to achieve the desired end.
Those other proceedings (which apparently concerned suits for partition in New Mexico
and Colorado) were addressed in a different settlement agreement (Agreement Two),
which agreement was incorporated into Agreement One. 3
Furthermore, Agreement Two contained a provision stating that if the parties could
not “agree on a partition in kind” then they “stipulate that the Court shall instruct the
Commissioners to partition in kind the deeded lands and the leasehold interests” (the
Stipulation). Because the parties could not themselves successfully reach a satisfactory
partition in kind, the Angela Kate litigants turned to the New Mexico court to effectuate a
partition in kind per the aforementioned clause in Agreement Two. The John Burk
litigants, though, impeded that effort. Instead, they “asserted positions that were totally
at odds with their obligation to follow through in a straightforward manner with the
stipulation to which they had already agreed; i.e. to ‘stipulate that the Court shall instruct
the Commissioners to partition in kind the deeded lands and the leasehold interests.’”
3 Agreement Two arose from litigation pending in New Mexico.
2 Eventually, the John Burk litigants “conceded to the above stipulation in the New
Mexico Litigation.” But, the partition had yet to occur, and the New Mexico Litigation
remained pending when Angela Kate sued John Burk in Randall County for breach of
contract, restitution, and promissory estoppel.
The Randall County trial court tried the dispute. It rejected the claims for restitution
and promissory estoppel but held that John Burk’s “failure to comply with the Partition in
Kind Requirement in the New Mexico Litigation constituted a breach of the settlement
agreement.” It also found that the breach “caused [Angela Kate] to incur $216,112 in
reasonable and necessary attorneys’ fees in the New Mexico Litigation in excess of the
amount of reasonable and necessary attorneys’ fees that [Angela Kate] would have
incurred in the New Mexico Litigation if . . .” John Burk had not breached the clause in
Agreement Two. It also held that 1) “[t]he attorney’s fees incurred by Plaintiffs in the New
Mexico Litigation do not constitute damages in this lawsuit” and 2) Angela Kate litigants
were “not entitled to recover their attorney’s fees incurred in the captioned matter because
they did not recover an award for damages, specific performance, or injunctive relief, or
based on a cause of action for which attorney’s fees are recoverable.” That resulted in
the trial court entering judgment awarding Angela Kate nothing and this appeal.
Issue One—Misapplication of Law
Angela Kate initially contends the trial court misapplied Texas contract law and
erred in denying damages from the breach. The misapplication involved the trial court’s
denial of litigation expenses (attorney’s fees) incurred when John Burk failed to abide by
the Stipulation regarding partition in kind. As urged by Angela Kate, “[t]he parties
bargained for the final terms in the Settlement Agreement, which included an agreement
3 to avoid delay and contested litigation in the event further partition proceedings were
required.” Yet, John Burk “disagreed and delayed at every turn in the New Mexico
Partition Suit” thereby breaching “the Partition in Kind Requirement.” That caused Angela
Kate “to engage in lengthy and expensive litigation in New Mexico” which “deprived [them]
of the very thing they had bargained for . . . a voluntary, cooperative process that would
avoid either party incurring excessive fees in litigation.” Additionally, the attorney’s fees
related to securing compliance with the partition in kind clause were allegedly the
foreseeable and natural result of the breach and “the very thing the parties sought to avoid
by the terms of their agreement.” Thus, they represent the bargain lost and are
recoverable as damages. We overrule the issue.
That Angela Kate is not suing upon a provision in either Agreement One or Two
expressly allowing the recovery of attorney’s fees as damages for a breach is certain.
Instead, she argues that attorney’s fees should be awarded as consequential damages
caused by enforcing a contract executed to avoid the incurrence of unnecessary
attorney’s fees and litigation expenses. In other words, the Angela Kate litigants executed
Agreement One and Two to settle a dispute and thereby avoid further litigation expense,
namely attorney’s fees. Because the John Burk litigants denied them the benefit of that
bargain, the cost of regaining it (i.e., enforcing the agreed -upon way to partition) should
be recoverable damages. Yet, our own precedent poses an obstacle.
In Tomorrow Telecom, Inc. v. Johnson, No. 07-19-00427-CV, 2021 Tex. App.
LEXIS 1890 (Tex. App.—Amarillo Mar. 11, 2021, no pet.) (mem. op), we held that
[a]ttorney’s fees incurred in a breach of contract action do not qualify as damages.” Id.
at *14. Like the circumstances at bar, those in Tomorrow Telecom, Inc. also involved a
4 settlement agreement and its breach. The settlement agreement there, though, was one
struck under Texas Rule of Civil Procedure 11. Nevertheless, Rule 11 agreements are
contractual in nature, see id. at *7, and enforceable as a contract. David L. Smith &
Assocs., L.L.P. v. Stealth Detection, Inc., 327 S.W.3d 873, 880 (Tex. App.—Dallas 2010,
no pet.) (stating that a “Rule 11 agreement is enforceable as a contract”). And, when
Johnson sought to enforce the Rule 11 accord through his allegation of breached
contract, we noted the absence of evidence establishing an element to the claim, that
element being damages. Tomorrow Telecom, Inc., supra at *13-14. We then held that
attorney’s fees incurred to enforce the agreement could not fill the void. Id. To support
our holding, we cited Berg v. Wilson, 353 S.W.3d 166 (Tex. App.—Texarkana 2011, pet.
denied).
The Berg court dealt with an argument the essence of which is that proffered by
Angela Kate. Like the latter, Wilson too argued that the damage resulting from the
breached contract (again a Rule 11 agreement) was “the continuation of the litigation and
the resulting attorneys’ fees she incurred.” Id. at 182. In other words, she also did not
get the benefit of her bargain implicit in executing the settlement agreement. And, this
“loss . . . mirrors the damage elements in contract settings.” Id. “[B]ecause she was
forced to continue the litigation with resulting, necessary expenses, those fees [were] an
element of contractual damages, and [were] thus recoverable under Section 38.001,” she
continued. Id. The panel in Berg considered the argument both “creative and highly
logical” before concluding that it was “not supported by Texas statutory or caselaw.” Id.
So, the attorney’s fees Wilson incurred to address the breached settlement agreement
5 did not constitute damages despite the desire to avoid them being the impetus for
settlement.
Berg and our adoption of it in Tomorrow Telecom, Inc. control the outcome here.
Non-compliance by John Burk with the provision in Agreement Two concerning the mode
of partition may well have rendered foreseeable the likelihood of incurring additional
attorney’s fees. Yet, those fees are not recoverable damages arising from the breach of
those agreements. Indeed, while “’[d]amages’ compensate for loss—actual or reasonably
estimable . . . not all compensation constitutes ‘damages,’ even when an award is
necessary to make a party whole.” In re Xerox Corp., 555 S.W.3d 518, 529 (Tex. 2018).
Generally included within the non-compensable loss are attorney’s fees, according to our
Supreme Court. Id. And, the rule uttered in Xerox is nothing more than reiteration of
earlier precedent recognizing that “[w]hile attorney’s fees for the prosecution or defense
of a claim may be compensatory in that they help make a claimant whole, they are not,
and have never been, damages.” In re Nalle Plastics Family L.P., 406 S.W.3d 168, 173
(Tex. 2013); Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 135 (Tex. 2019) (same). Again,
“[n]ot every amount, even if compensatory, can be considered damages.” In re Nalle
Plastics Family L.P., 406 S.W.3d at 173.
This is not to say that attorney’s fees may never be recoverable as damages. Our
Supreme Court recognized as much in Nalle. For instance, they may be recoverable in
a claim for unpaid fees. See In re Nalle Plastics Family L.P., 406 S.W.3d at 174-75. So
too may they be recoverable by a malpractice plaintiff if paid in an underlying case, to the
extent incurrence of the fees was proximately caused by the negligence of the defendant
attorney. Akin, Gump, Straus Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
6 S.W.3d 106, 122 (Tex. 2009). Here, we have neither a malpractice claim involving effort
by the injured plaintiff to recoup fees paid his negligent attorney or incurred to correct that
malfeasant attorney’s conduct, as in Akin. Nor were the fees sought here the substance
of a claim for those fees (e.g., a debt due), as alluded to in Nalle. And, Angela Kate’s
reference to CBIF, Ltd. P’ship v. TGI Friday’s Inc., No. 05-15-00157-CV, 2017 Tex. App.
LEXIS 3605 (Tex. App.—Dallas April 17, 2017, pet. denied) (mem. op.) does not compel
us to conclude otherwise.
CBIF pursued a claim for breached fiduciary duty. We deem such a claim a tort.
See Plas-Tex, Inc. v. Jones, No. 03-99-00286-CV, 2000 Tex. App. LEXIS 3188, at *13
(Tex. App.—Austin May 18, 2000, pet. denied) (mem. op.) (so characterizing a claim of
breached fiduciary duty). This triggered application by the Dallas Court of Appeals of its
own precedent. That precedent stated: “a plaintiff may recover in tort those damages that
proximately resulted from the alleged wrongful act, including expenses incurred in hiring
an attorney to investigate the injury, as distinguished from the cost of prosecuting claims
against the defendant.” CBIF, Ltd. P’ship, 2000 Tex. App. LEXIS 3188, at *39-40 (citing
Jackson v. Julian, 694 S.W.2d 434, 437 (Tex. App.—Dallas 1985, no writ)). This is little
more than application of the rule in Akin. However, again, we have no tort claim here, but
rather one sounding in breached contract. Nor did the CBIF panel purport to extend its
holding to cover claims for breached contract.
Angela Kate’s reliance on Mintvest Cap., Ltd. v. Coinmint, LLC, 693 S.W.3d 834
(Tex. App.—Houston [14th Dist.] 2024, no pet.) is similarly unavailing. There, question
arose about the need to domesticate a foreign (Delaware) judgment awarding
approximately $88,000 in attorney’s fees. Id. at 840-41. Apparently, Coinmint sought
7 recovery of the fees reflected in that foreign judgment via a motion for default judgment
filed in a Harris County lawsuit. Apparently, the motion was granted, and the trial court
issued a default judgment which included the $88,000. On appeal, Mintvest argued that
1) the default judgment had the effect of enforcing the foreign judgment and 2) such was
improper because the foreign judgment had not been properly domesticated. Coinmint,
relying on Nalle, replied that the previously awarded fees were not damages, which meant
it need not pursue domestication efforts. The Mintvest panel disagreed with Coinmint
and observed that Nalle “makes clear that attorney’s fees stemming from an underlying
cause (e.g., the Delaware case) when sought as damages in the instant case are actual
damages.” Id. at 841 (emphasis in original).
Angela Kate litigants apparently analogize the attorney’s fees incurred in
prosecuting the New Mexico litigation as the attorney’s fees incurred in the Mintvest
Delaware case. So, they too were damages, allegedly. Missing here, though, and
present in Mintvest is 1) a prior judgment awarding the fees and 2) effort to enforce that
judgment. The prior judgment is of import because it reflects an obligation or debt owed
to pay money. See e.g., Gillet v. ZUPT, LLC, 523 S.W.3d 749, 755 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (stating that the “final judgment awarded each party damages”
reflecting “an obligation owed by each party to pay money to the other”). Thus, the
Delaware court entering a final judgment awarding Coinmint $88,000 in attorney’s fees
meant that the award itself became a collectible debt due from the judgment debtor. As
such, the $88,000 awarded were tantamount to damages when effort was made to
enforce the foreign judgment and collect the underlying debt it represented. And, in that
situation, the attorney’s fees that fell within the exception voiced in Nalle. Again, Nalle
8 tells us that attorney’s fees forming the subject-matter of the litigation are damages. In
re Nalle, 406 S.W.3d at 174-75. The attorney’s fees encompassed within the Mintvest
foreign judgment became the subject matter of the litigation when Coinmint tried to collect
the sum awarded in that judgment. So, the exception to such fees being damages uttered
in Nalle applied. Here, though, we have neither a pre-existing debt composed of
attorney’s fees upon which Angela Kate sued nor a judgment creating a debt composed
of attorney’s fees upon which the Angela Kate litigants sued. And, that renders Mintvest
inapposite.
Simply put, the fees incurred in prosecuting the New Mexico litigation arose from
the breach of the settlement contract reflected in Agreements One and Two. The
likelihood of their incurrence may have been anticipated if the parties failed to abide by
their earlier settlement, just as in Berg. But that matters not. Just as successfully
prosecuting the breach did not entitle the victorious party to recover attorney’s fees as
damages in either Tomorrow Telecom, Inc. or Berg, it does not here. And, because the
circumstances before us do not fall within the exceptions to the general rule alluded to in
Nalle, Akin, Xerox, and other Supreme Court precedent, we leave it to the Supreme Court
to expand the category of exceptions it created.
Indeed, it may well be time for the Supreme Court to intervene. As often happens,
multiple minds considering the same subject can disagree. That rings true here. Several
of our sister courts of appeals hold that if attorney’s fees incurred are the natural,
probable, and foreseeable consequence of an opponent’s breach of a settlement
agreement, then the fees are recoverable as damages. Dallas Area Rapid Transit v.
Amalgamated Transit Union Local No. 1338, No. 05-17-01051-CV, 2018 Tex. App. LEXIS
9 9636, at *26-27 (Tex. App.—Dallas Nov. 27, 2018, no pet.) (mem. op.); Ganske v. WRS
Grp., Inc., No. 10-06-00050-CV, 2007 Tex. App. LEXIS 2991, at *7-8 (Tex. App.—Waco
Apr. 18, 2007, no pet.) (mem. op.); Guffey v. Clark, No. 05-93-00849-CV, 1997 Tex. App.
LEXIS 1609, at *9-10 (Tex. App.—Dallas Mar. 31, 1997, writ denied) (mem. op.). Their
holdings obviously conflict with ours here and in Tomorrow Telecom, Inc. Yet, we must
abide by our precedent. Mitschke v. Borromeo, 645 S.W.3d 251, 257-58 (Tex. 2022)
(requiring compliance with decisions of an earlier panel of the same court of appeals).
And, frankly, we believe that to follow the holdings in Dallas Area, Ganske, and Guffey
would be to vitiate Nalle’s general rule that “[w]hile attorney’s fees for the prosecution or
defense of a claim may be compensatory in that they help make a claimant whole, they
are not, and have never been, damages.” If the test, as indicated in Dallas Area and the
other opinions, is merely that the fees be a natural, probable, and foreseeable
consequence of an opponent’s breach, then such fees would always be recoverable
damages. This is so because a natural, probable, and foreseeable consequence of any
purported breach of contract (or any legal dispute) is that the injured party will retain legal
counsel and, therefore, incur legal fees. We hesitate to walk through that door opened
by our sister courts. So, until our Supreme Court resolves the aforementioned conflict,
we do not say the trial court at bar erred in holding as it did.
Issue Two—Attorney’s Fees under section 38.01 et seq.
Via their second issue, Angela Kate argues that “[i]f this Court finds, as Appellants
urge it to, that the attorneys’ fees incurred by Appellants in the New Mexico Partition Suit
are recoverable as compensatory damages caused by Appellees’ breach” then the
elements for recovery of fees under § 38.001 of the Texas Civil Practice and Remedies
10 Code were met. Thus, they were entitled to recover attorney’s fees incurred in
prosecuting the suit from which this appeal arose. And, in denying same, the trial court
purportedly erred. Because we do not hold the attorney’s fees incurred in the New Mexico
Partition Suit are compensatory damages, an element to the foundation underlying
Angela Kate’s argument is missing. So, we overrule issue two.
The judgment of the trial court is affirmed.
Brian Quinn Chief Justice