REVERSE; RENDER and REMAND and Opinion Filed February 28, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00386-CV
EBBY HALLIDAY REAL ESTATE, INC. D/B/A EBBY HALLIDAY REALTORS, DAVE PERRY MILLER REAL ESTATE, WILLIAMS TREW REAL ESTATE, Appellants V. MARK GIAMBRONE, Appellee
On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-17047
MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Garcia This appeal arises from competing motions for summary judgment in a
lawsuit seeking commission for the sale of real property pursuant to a termination of
listing agreement (the “Termination Agreement”). In two issues, the first with
multiple subparts, Ebby Halliday Real Estate, Inc. d/b/a Ebby Halliday Realtors,
Dave Perry-Miller Real Estate, Williams Trew Real Estate (“Ebby Halliday”) argues
the trial court erred in denying its motion for summary judgment on its breach of
contract claim and in granting Mark Giambrone’s (“Seller’s”) motion for summary
judgment, and that it is entitled to attorney fees. As discussed below, we reverse the trial court’s judgment, render judgment for Ebby Halliday, and remand to the trial
court to determine attorney’s fees.
I. Background
On September 2, 2020, Ebby Halliday and Seller entered an exclusive listing
agreement (the “Listing Agreement”). The Listing Agreement provided for Ebby
Halliday to receive a 6% commission for the sale of Seller’s property and was to be
in effect until September 2, 2021.
After five months, Seller received no serious offers to purchase his property.
Accordingly, on February 3, 2021, Seller and the Ebby Halliday listing agent entered
the Termination Agreement. The Termination Agreement provides that the Listing
Agreement is terminated and the property will be removed from the Multiple
Listings Service (“MLS”). The section of the Termination Agreement entitled
“Termination Fees,” provides in pertinent part:
–2– On June 11, 2021, Seller executed a listing agreement with Compass RE
Texas, LLC (“Compass”), and on the same day, sold his property to John and
Savannah Stevens, Co-Trustees of the J&S Stevens Revocable Trust (“Stevens”).1
Ebby Halliday demanded its termination fee, specifically $167,250.00 as the
3% commission from the sale pursuant to the Termination Agreement. Seller refused
to pay and Ebby Halliday initiated this suit for breach of contract. The title company
deposited the escrow into the registry of the court.
Both Ebby Halliday and Seller filed traditional motions for summary
judgment. The trial court granted Seller’s motion, denied Ebby Halliday’s motion,
and dismissed Ebby Halliday’s claims. Ebby Halliday now appeals from that
judgment.
II. Issues on Appeal
This appeal centers on the meaning and effect of the Termination Agreement;
specifically, the meaning of the handwritten clause stating, “If owner decides to sell
property we will relist the property on or before 12/31/21” (the “Relisting
Language”). Ebby Halliday argues the trial court’s summary judgment in favor of
Seller was in error because: (i) the summary judgment evidence establishes that
Seller breached the contract and Ebby Halliday is entitled to judgment as a matter of
law, (ii) the procuring cause doctrine does not apply, (iii) the Termination
1 The Ebby Halliday listing agent had previously shown Stevens the property during the term of the Listing Agreement. –3– Agreement complies with the statute of frauds, (iii) the Relisting Language in the
Termination Agreement is not a condition precedent, and (iv) Seller’s contract
interpretation arguments fail.2 Ebby Halliday further contends that should it prevail
on its first issue, it is entitled to a remand for attorney fees.
III. Analysis
A. Standard of Review and Applicable Law
In reviewing cross-motions for summary judgment, “we follow the usual
standard of review for traditional summary judgments.” Lockheed Martin Corp. v.
Gordon, 16 S.W.3d 127, 132 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
On appeal, we review summary judgments de novo. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Dickey v. Club Corp., 12 S.W.3d
172, 175 (Tex. App.—Dallas 2000, pet. denied). Traditional summary judgment is
properly granted only when a movant establishes that there are no genuine issues of
material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex.1999). When a plaintiff moves for summary judgment, he must prove that
he is entitled to summary judgment as a matter of law on each element of his cause
of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986) (per curiam);
Affordable Motor Co. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App.—Dallas 2011,
2 We reject Seller’s argument that Ebby Halliday failed to challenge all summary judgment grounds. The record reflects otherwise. –4– pet. denied). When a defendant moves for summary judgment, it must either (1)
disprove at least one element of the plaintiff’s cause of action or (2) plead and
conclusively establish each essential element of an affirmative defense to rebut
plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam);
Ward v. Stanford, 443 S.W.3d 334, 342 (Tex. App.—Dallas 2014, pet. denied).
To decide whether issues of material fact preclude summary judgment,
evidence favorable to the non-moving party must be taken as true, every reasonable
inference must be indulged in its favor, and any doubts resolved in its favor.
Sandberg v. STMicroelectronics, Inc., 600 S.W.3d 511, 521 (Tex. App.—Dallas
2020, pet. denied). The movant must conclusively establish its right to judgment as
a matter of law. See id. A matter is conclusively established if reasonable people
could not differ as to the conclusion to be drawn from the evidence. City of Keller v.
Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
The primary concern of a court in construing a written contract is to ascertain
the true intent of the parties as expressed in the instrument. Nat’l Union Fire Ins. Co.
of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Monroe
Guar. Ins. Co. v. BITCO Ins. Corp. 640 S.W.3d 195, 198–99 (Tex. 2022). To do so,
we look first to the contract’s text. See U.S. Metals, Inc. v. Liberty Mut. Grp., Inc.,
490 S.W.3d 20, 23 (Tex. 2015). Terms in contracts are given their plain, ordinary,
and generally accepted meanings, and contracts are to be construed as a whole to
–5– harmonize and give effect to all provisions of the contract. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005).
The elements of a contract breach claim are (i) a valid contract, (ii)
performance or tendered performance by the plaintiff, (iii) breach by the defendant,
and (iv) damages sustained by the plaintiff as a result of that breach. Dixie Carpet
Installations, Inc. v. Residences at Riverdale, LP, 599 S.W.3d 618, 625 (Tex. App.—
Dallas 2020, no pet.). “A breach of contract occurs when a party fails to perform an
act it has explicitly or impliedly promised to perform.” Gaspar v. Lawnpro, Inc., 372
S.W.3d 754, 757 (Tex. App.—Dallas 2012, no pet.). Whether a party has breached
a contract is a legal question for the court, not a fact question for the jury if the facts
of the parties’ conduct are undisputed or conclusively established. Grohman v.
Kahlig, 318 S.W.3d 882, 887 (Tex. 2010).
B. Procuring Cause
Seller argued that Ebby Halliday was not entitled to summary judgment
because it was not the “procuring cause” of the sale. Relying on Perthuis v. Baylor
Miraca Genetics Labs, LLC, 645 S.W.3d 228, 231 (Tex. 2022), Seller maintains that
the procuring cause doctrine is a default rule that applies to every contract for a
commission and is applicable in the instant case. Ebby Halliday responds that under
the unambiguous terms of the Termination Agreement, the procuring cause doctrine
does not apply, and Seller breached the contract by failing to pay the termination
–6– fee. In other words, Ebby Halliday argues that the procuring cause doctrine does not
apply when the parties expressly contract otherwise. We agree with Ebby Halliday.
The procuring cause doctrine was first articulated many years ago in Goodwin
v. Gunter, 185 S.W. 295, 296 (Tex. 1916). There, the court held that the procuring
cause doctrine provides “for a broker to be entitled to commission under a contract
stipulating for their payment in the event of his sale of given property upon stated
terms.” Id. at 296. The Perthuis decision upon which Seller relies set forth the
framework for determining when the doctrine applies. Perthuis, 645 S.W.3d at 231.
The Perthuis court observed that under the procuring cause doctrine, “the
broker’s entitlement to a commission vests on his having procured the sale, not on
his actual involvement in a sale’s execution.” Id. at 234. To determine when the
doctrine applies, courts must first determine whether the parties have the kind of
contractual relationship to which the doctrine applies. Id. at 231. If so, courts next
consider whether the parties displaced the doctrine by the terms of their contractual
agreement. Id.
If a contract says nothing more than commissions will be paid for sales, the
procuring cause doctrine is the default rule. Id. at 234. But the court expressly
recognized that “parties may condition the obligation to pay a commission on
something other than procuring the sale—they need only say so.” Id. at 235.
Recognizing that the parties’ contract can “displace” the default rule, the court
stated:
–7– Departing from the procuring cause doctrine’s default rule requires no magic language. A contract merely needs to provide terms that are inconsistent with the default rule—which is to say, terms that in some way cabin the textually imposed contractual obligation to pay a commission.
Id. at 234.
It is not uncommon for parties to agree that a broker will still receive a
commission after a listing is terminated without requiring that the broker procure the
purchaser. See, e.g., EID Corp. v. Fort Worth-Tarrant Sunbelt, Inc., No. 02-05-61-
CV, 2006 WL 1562665, at *3, 6 (Tex. App.—Fort Worth June 8, 2006, no pet.)
(mem. op.); WesTex Abilene Assocs., L.P. v. Franco, 3 S.W.3d 45, 46–47 (Tex.
App.—Eastland 1999, no pet.). In the case at bar, as evidenced by the heading
“Termination Fees” under which the provisions at issue appear, the amount at issue
was a termination fee for Seller terminating the Listing Agreement. To this end, the
Termination Agreement’s terms “cabin” the commission-based termination fee
obligation on Seller agreeing to “sell or lease the property to anyone” on or before
December 31, 2021. Thus, the contract provides not only that Ebby Halliday need
not procure the sale, but also that Ebby Halliday need not be involved in the sale or
listing at all. Rather, the obligation to pay Ebby Halliday the termination fee is
triggered by Seller’s actions—agreeing to sell or lease the property to anyone on or
before the specified date. This contractual language is sufficient to displace
application of the default rule. See id at 234.
–8– As the Perthuis court observed, when the parties provide their own rules for
paying or withholding commissions, “the procuring cause doctrine becomes
irrelevant.” Id. at 236. “When a contract prescribes otherwise-valid binding terms
for how to handle post-termination commissions . . . the courts will enforce them.”
Id. at 237.
The express terms of the Termination Agreement displace the procuring cause
doctrine and control the respective rights and obligations of the parties. Therefore,
to the extent the trial court’s summary judgment determination was based on Seller’s
procuring cause argument, it was in error.3
C. Statute of Frauds
Seller argues that the Termination Agreement does not comply with the statute
of frauds requirements in the Texas Occupations Code. The Occupations Code
requires:
A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.
TEX. OCC. CODE ANN. § 1101.806(c). To comply with 1106.806, “an agreement or
memorandum must: (1) be in writing and must be signed by the person to be charged
with the commission; (2) promise that a definite commission will be paid, or must
3 Seller also argues that, at a minimum, there is a fact issue about whether Ebby Halliday was the procuring cause of the sale. We reject this argument because procuring cause is irrelevant to this analysis. See Perthuis, 645 S.W.3d at 236. –9– refer to a written commission schedule; (3) state the name of the broker to whom the
commission is to be paid; and (4) either itself or by reference to some other existing
writing, identify with reasonable certainty the land to be conveyed.” Litton Loan
Serv., L.P. v. Manning, 366 S.W.3d 837, 840 (Tex. App.—Dallas 2012, pet. denied).
According to Seller, the Termination Agreement does not meet these requirements
because it does not constitute a promise that a definite commission will be paid or
name the broker to be paid. We find this argument unpersuasive.
Seller’s argument that there is no promise for a definite commission is
premised on his interpretation of the relationship between paragraphs D(2) and D(3).
Specifically, Seller maintains that because of the Relisting Language in paragraph
D(3) (stating “[i]f owner decides to sell property we will relist the property on or
before 12/31/2012”), the commission is only payable if Ebby Halliday relists the
property and he agrees to sell or lease the property.
Again, the provisions read:
–10– As reflected in the express, unambiguous terms above, the contract provides
that the commission is payable if “Owner agrees to sell or lease the property to:
anyone [on or before the specified date].” There is no check next to the box in which
the Relisting Language appears. Indeed, the contract specifies that only one box
should be checked, which clarifies the parties’ intent that the only situation in which
commission is to be paid is the one specified by the checked box. Moreover, the
Relisting Language is not contingent upon the language in 3(a); instead, it is a
separate part of the agreement. Accordingly, Seller’s argument that the Termination
Agreement simply provides an opportunity for Ebby Halliday to relist the property
if he decides to put it back on the market on or before 12/31/21 and obtain a
commission on the sale of the property if such relisting occurs is misplaced.
Seller relies on Litton, 366 S.W.3d at 841 to argue that the Termination
Agreement only concerns a future opportunity or agreement to agree and does not
specify the broker. In that case, the parties relied on five documents including e-
mails, a real estate contract, and a letter on letterhead that contained various
information concerning a real estate transaction. But none of the documents
contained a promise to pay a commission/termination fee or identified the broker to
be paid. In the present case, however, the Termination Agreement unambiguously
includes a promise to pay a commission and identifies Dave Perry Miller Real Estate
as the broker to be paid. This is sufficient to satisfy the statute of frauds. See TEX.
–11– OCC. CODE ANN. § 1101.806(c). Thus, to the extent the trial court granted Seller’s
summary judgment motion based on the statute of frauds, it was in error.4
D. Condition Precedent
Seller also argues that the Relisting Language is “an additional condition” that
must be satisfied before Ebby Halliday is entitled to receive a commission. We
disagree.
“A condition precedent is an event that must happen or be performed before
a right can accrue to enforce an obligation.” Solar Applications Eng’g, Inc. v. T.A.
Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010) (quoting Centex Corp. v. Dalton, 840
S.W.2d 952, 956 (Tex. 1992)). “A covenant, as distinguished from a condition
precedent, is an agreement to act or refrain from acting in a certain way.” Id.
Although breach of a covenant may give rise to a cause of action for damages, it
“does not affect the enforceability of the remaining provisions of the contract unless
the breach is a material or total breach.” Id. “In order to determine whether a
condition precedent exists, the intention of the parties must be ascertained; and that
can be done only by looking at the entire contract.” Solar Applications, 327 S.W.3d
at 109 (quoting Criswell v. European Crossroads Shopping Ctr., 792 S.W.3d 945,
948 (Tex. 1990)).
4 Seller also argues for the first time on appeal that Ebby Halliday only argued traditional contract elements in the court below and did not argue it met the Occupations Code elements. We do not consider this argument. See Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019) (argument raised for the first time on appeal waived). Moreover, the record reflects that Ebby Halliday did raise this argument below. –12– Language such as “if,” “provided that,” “on condition that,” or some other
conditional phrase is usually used to create a condition precedent to performance.
Solar Applications, 327 S.W.3d at 108; Hohenberg Bros. v. George E. Gibbons &
Co., 537 S.W.2d 1, 3 (Tex. 1976). The absence of such language indicates the parties
intended to make a promise rather than impose a condition. Solar Applications, 327
S.W.3d at 109; Criswell, 327 S.W.2d at 948. If the parties’ intent is not clear from
the language of the contract and another reasonable interpretation is possible, the
agreement will be interpreted as creating a covenant rather than a condition to
prevent forfeiture. Criswell, 792 S.W.2d at 948.
Seller insists that the use of the term “if” in the Relisting Language evidences
a condition. We agree, but the condition does not pertain to the payment of a
commission. The Relisting Language provides that “If owner decides to sell, [Ebby
Halliday] will relist the property.” The conditional language in that section is “if
owner decides to sell.” This conditional language, however, is not tied or connected
to the preceding part of the agreement describing Ebby Halliday’s right to receive a
commission. The conditional language in the “Termination Fees” section only
conditions right to receive a commission on Seller agreeing to sell the property to
anyone on or before the specified date.
The authority Seller relies on to argue that the use of the word “if” signifies a
condition precedent to the right to receive a commission is distinguishable from the
instant case. See Shin-Con Dev’t Corp. v. I.P. Invs. Ltd., 270 S.W.3d 759, 766–77
–13– (Tex. App.—Dallas 2008, no pet.) (condition precedent where agreement provided
for forfeiture of payments if party failed to attain title and execute easement
agreement); Don Drum Real Estate Co. v. Hudson, 465 S.W.2d 409, 411 (Tex.
App.—Dallas 1971, no writ) (contract not binding unless loan obtained); Mayberry
v. Julian, 479 S.W.2d 770, 772, 774 (Tex. App.—Dallas 1972, writ ref’d n.r.e.)
(condition precedent when contract subject to obtaining a satisfactory zoning
change). Unlike this case, the “if” or required preceding action in the cited cases
directly concerned the condition precedent. Here, the word “if” in the Relisting
Language concerns an entirely different subject than the commission.
Finally, Seller argues that the Relisting Language must be a condition and
cannot be a covenant because the Relisting Language would have no function if “the
commission would still be owed without the relisting.” This argument
misapprehends the purpose of the Termination Agreement as evidenced by the
express terms of the agreement.
The Listing Agreement provided for a 6% commission and was to be in effect
through September 2, 2021. When Seller wanted to end the agreement early, the
listing and the parties’ rights and obligations under the Listing Agreement were
terminated in the Termination Agreement. As evidenced by the Termination
Agreement’s express reference to “termination fees,” as consideration for early
termination of the listing the Termination Agreement provided for broker’s
compensation by payment of a 3% commission if the Seller agreed to sell the
–14– property to anyone before December 31, 2021. Thus, the express terms of the
contract make clear why a commission is owed regardless of whether the property
is relisted. The Relisting Language that Seller erroneously attempts to bootstrap to
this section is a separate covenant, not a condition.
To read the contract as Seller suggests would impose a condition for payment
of a commission that does not exist. See e.g., Calloway v. Overholt, 796 S.W.2d 828,
833–34 (Tex. App.—Austin 1990, writ denied) (no condition); Frady v. May, 23
S.W.3d 558, 560 (Tex. App.—Fort Worth 2000, pet. denied) (same). It would also
result in no consideration to Ebby Halliday for the early termination of the listing.
Seller’s proposed construction is not reasonable. See Markel Ins. Co. v. Muzyka, 293
S.W.3d 380, 387 (Tex. App.—Fort Worth 2004, no pet.) (courts do not construe
contracts to produce an absurd result when a reasonable alternative construction
exists).
Based on the unambiguous, plain language of the Termination Agreement, we
conclude that the Relisting Language does not make Ebby Halliday’s relisting of
Seller’s property “an additional condition” to Ebby Halliday receiving the
commission. To the extent the trial court’s summary judgment determination was
based on Seller’s condition precedent argument it was erroneous.
E. Contract Interpretation
Seller advances several additional contract interpretation arguments in
support of summary judgment. Specifically, Seller argues that the listing agreement
–15– with Compass controls and Compass, as the procuring cause of the sale, is the party
entitled to a commission. He further argues that the specific terms of the Termination
Agreement control over the general and that the contract is ambiguous.
We begin with ambiguity.5 Seller argues that the contract is ambiguous about:
(i) displacement of the procuring cause doctrine, (ii) whether the Relisting Language
violates the statute of frauds, and (iii) whether the Relisting Language creates a
condition precedent. We have concluded that the express language of the
Termination Agreement displaces the procuring cause doctrine, there is no statute of
frauds violation, and relisting the property is not a condition precedent to Seller’s
obligation to pay the termination fee. In so concluding, we find no ambiguity.
Seller’s obligation to pay Ebby Halliday the 3% commission as a termination fee if
he agreed to sell the property on or before the specified date is clear and can be
afforded a definite legal meaning. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983). An agreement is not ambiguous merely because the parties offer different
interpretations of its language. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d
455, 458 (Tex. 1997). A contract is only ambiguous if its language is susceptible to
two or more reasonable interpretations. Kelley-Coppedge, Inc. v. Highlands Ins.
Co., 980 S.W.2d 462, 465 (Tex. 1998) (emphasis added). There is no ambiguity here.
5 Tacitly acknowledging that ambiguity was not raised in the court below, Seller notes that the court may independently conclude that there is an ambiguity. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 219 (Tex. 2022). –16– Seller’s argument concerning the Compass listing agreement also fails.
Whether the Compass listing agreement was in force at the time of the sale and
whether Compass was the procuring cause of the sale is of no consequence to
Seller’s obligations to Ebby Halliday under the Termination Agreement.
The Termination Agreement and the Compass listing agreement are not, as
Seller suggests, competing listing agreements. A listing agreement is a contract
between a seller and broker in which the seller lists his property with a broker to
negotiate a sale with potential buyers. Callaway, 796 S.W.2d at 832, n.2. The
Termination Agreement does not meet this criterion. Indeed, it terminated the listing
relationship and then included language contemplating a new listing agreement in
the future. In consideration for Ebby Halliday’s early termination of the listing,
Seller agreed to pay the 3% commission if he agreed to sell the property on or before
the specified date. His subsequent contract with Compass does not relieve him of
this separate contractual obligation to Ebby Halliday.
Finally, Seller argues that “specific and exact terms are given greater weight
than general language.” Worldwide Asset Purchasing, LLC v. Rent-A-Center East,
Inc., 290 S.W.3d 554, 560 (Tex. App.—Dallas 2009, no pet.). Applying this general
principle to the Termination Agreement, Seller argues that the listing was to
terminate on February 4, 2021, but the Relisting Language provides for payment of
a termination fee if the property is sold on or before December 31, 2021. Thus,
according to Seller, the Termination Agreement “does not provide for the specific
–17– ability for [Ebby Halliday] to obtain a commission from the sale of the property after
the listing termination date of 2/4/2021,” but instead “generally describes the future
ability of [Ebby Halliday] to relist the property.”
This argument conflates two separate sections of the contract that have
separate and distinct meanings. Seller’s cited authority, however, pertains to
contracts with two provisions on the same topic. See Friedlander v. Christianson,
320 S.W.2d 404, 408 (Tex. App.—Houston 1959, no writ) (two provisions
concerning termination date); Silver Spur Add’n Homeowners v. Clarksville Seniors
Apts., 848 S.W. 2d 772, 775 (Tex. App.—Texarkana 1993, writ denied) (general and
specific provisions regarding restrictive covenants). In contrast, the two separate
sections of the Termination Agreement pertain to entirely different topics. The first,
falling under the distinct header “Termination Date” is the effective date of the
listing termination. The second, appearing in a separate section with the header
“Termination Fees” describes when and how Seller is obligated to pay the
termination fee. There is no conflict here.
To the extent the trial court’s summary judgment determination was based on
any of these additional contract interpretation arguments, it was in error.
F. Breach of Contract and Attorney’s Fees
We have concluded that the Termination Agreement required Seller to pay
Ebby Halliday a 3% commission as a termination fee if the Seller agreed to sell the
property to anyone on or before the specified date. It is undisputed that the Seller
–18– agreed to sell the property during the applicable time period and the $167,250.00
commission was not paid to Ebby Halliday. Thus, the summary judgment evidence
establishes that Seller breached the contract. See Gaspar, 372 S.W.3d at 757.
A plaintiff may recover attorney’s fees for breach of a written contract. See
TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8); see also Woodhaven Partners, Ltd.
v. Shamoun & Norman, 422 S.W.3d 821, 837–38 (Tex. App.—Dallas 2014, no pet.).
Because Ebby Halliday is entitled to summary judgment on its breach of contract
claim, it is also entitled to attorney’s fees. Accordingly, we remand to the trial court
for determination of those fees. See Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347,
349 (Tex. 1971) (attorney’s fees determined by trial court).
III. Conclusion
We reverse the trial court’s judgment granting Seller’s motion for summary
judgment and dismissing Ebby Halliday’s claims, render judgment granting Ebby
Halliday summary judgment on its breach of contract claim and awarding it actual
damages in the amount of $167,250.00, and remand to the trial court for a
determination of Ebby Halliday’s attorney’s fees.
/Dennise Garcia/ DENNISE GARCIA JUSTICE 220386F.P05
–19– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EBBY HALLIDAY REAL ESTATE, On Appeal from the 192nd Judicial INC. D/B/A EBBY HALLIDAY District Court, Dallas County, Texas REALTORS, DAVE PERRY Trial Court Cause No. DC-21-17047. MILLER REAL ESTATE, Opinion delivered by Justice Garcia. WILLIAMS TREW REAL ESTATE, Justices Reichek and Nowell Appellant participating.
No. 05-22-00386-CV V.
MARK GIAMBRONE, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that: Summary judgment is granted for Ebby Halliday on its breach of contract claim and Ebby Halliday is awarded $167,250.00 in actual damages.
The case is REMANDED to the trial court for a determination of Ebby Halliday’s attorney’s fees.
It is ORDERED that appellant EBBY HALLIDAY REAL ESTATE, INC. D/B/A EBBY HALLIDAY REALTORS, DAVE PERRY MILLER REAL ESTATE, WILLIAMS TREW REAL ESTATE recover its costs of this appeal from appellee MARK GIAMBRONE.
Judgment entered this 28th day of February 2023.
–20–