John Bryan Langdon v. Leslie Mathison Gilbert

• Court: Court of Appeals of Texas
• Decided: September 24, 2015
• Docket: 03-15-00305-CV
• Status: Published

Opinion

ACCEPTED 03-15-00305-CV 5651450 THIRD COURT OF APPEALS AUSTIN, TEXAS September 24, 2015 6/12/2015 10:06:06 AM JEFFREY D. KYLE CLERK APPELLATE CASE NO. 03-15-00305-CV

RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS JOHN BRYAN LANGDON 6/12/2015 10:06:06 AM Appellant JEFFREY D. KYLE Clerk v.

LESLIE MATHISON GILBERT Appellee

On Appeal from the County Court at Law Number Two of Travis County, Texas

APPELLANT BRIEF

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy Attn: John M. Davidson Attn: Tom Murphy 16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W Spring, Texas 77379 Austin, Texas 78759 (281) 251-7900 (512) 477-5680 (281) 251-7909 Fax (512) 493-0691 Fax Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com Trial Attorney and Trial Attorney and Presumed Appellee Counsel for Gilbert Appellate Counsel for Langdon

1 TABLE OF CONTENTS PAGE

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

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

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

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

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

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

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

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

I. Are attorneys’ fees awardable to a prevailing party for a Bill of Review …………......................... 13

II. Was the trial court’s Granting of an Order for the Notice of Non-Suit without Prejudice in the Underlying Suit Appropriate? ……………… 19

III. Did the trial court improperly enter a Final, Appealable Order/Judgment? ………………...…… 21

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

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

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

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

2 INDEX OF AUTHORITIES

PAGE

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

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

Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.) ……………………………………………….. 14

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

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

CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d 674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t vacated w.r.m.) …. 13 and 15

Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627 (Tex. App. – San Antonio 2011, no pet.) ……………………………………….. 14

Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. – Austin 1938, no writ) ………………………………………………17

G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930 S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied) ................................ 15

Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174 (Tex. 1992) .…………………………………..…………………………………… 15

Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. – Dallas 1988, no writ) ……………………………………….……… 15

In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. – Houston [1st Dist.] 2007, no pet.) …………………………………... 17

Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655 (Tex. 2009) …………………...………………………………………………….. 16

3 Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.) ………………………………..20

Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974) ...…………………….............................................................................. 13

Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex. App. —San Antonio 1999, pet. denied) ……………………………..18 and 19

Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ……………………………. 20 and 21

MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009) ………………………………………………………………………... 13

Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58 (Tex. 2008) ………………………………………………………………………. 13

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

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

Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ……….. 19

Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App.--Austin 1981, no writ) ……………………………………………….. 18

Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex. App.-Houston [1st Dist.] 1992, no writ) …………………………… 20 and 21

Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010) ..………………………………………………………………………. 14

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996) ………………………………...……………………………………… 13

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010) ………………………………………………………………...16 and 17

4 TEXAS RULES OF CIVIL PROCEDURE PAGE

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

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

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

5 STATEMENT OF CASE

1) Nature of the case. This is an appeal of a summary judgment for a Bill of Review. The Underlying Suit is related to the rental of real property with a cause of action for failure to return rental security deposit and unjust enrichment related to a leasehold.

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

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

4) Disposition in the trial court. The trial court rendered a summary judgment against Appellee, Leslie Mathison Gilbert entering an Agreed Order to grant a Bill of Review. The underlying judgment was in Cause No. C-1-CV-13- 009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default judgment rendered on or about March 19, 2014.

After granting the Bill of Review, Appellee non-suited the Underlying Suit after the trial court’s plenary power expired in the Underlying Suit.

Appellee subsequently filed a Motion for Summary Judgment for an Order determining whether or not attorneys’ fees can be awarded for a Bill of Review. The Order granting Appellee’s Motion for Summary Judgment regarding the issue of attorneys’ fees also included a Mother Hubbard Clause that made the Order/Judgement final and appealable without a determination of the merits of the Underlying Suit.

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

6 ISSUES PRESENTED

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

2. Was the trial court’s granting of an Order for the Notice of Non-Suit without Prejudice in the Underlying Suit Appropriate?

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

7 STATEMENT OF FACTS

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

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

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

judgment rendered on or about March 19, 2014.

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

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

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

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

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

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

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

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

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

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

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

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

deliver Notice of Citation to Appellant.

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

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

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

07740.

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

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

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

address to serve Appellant.

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

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

Judgment to deny a Bill of Review.

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

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

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

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

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

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

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

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

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

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

merits of the Underlying Suit.

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

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

for the Underlying Suit.

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

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

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

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

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

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

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

in the Underlying Suit.

10 SUMMARY OF ARGUMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12 ARGUMENT

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

1. General Rule to Award Attorneys’ Fees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Prerequisites for Recovery of Attorneys’ Fee Met

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellee specifically deny any conditions precedent. Resultantly, all conditions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Prevailing Party

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

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

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

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

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

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

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

Appellant was the prevailing party.

4. Legal Proceeding Related to the Contract

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

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

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

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

Any proceeding authorized by law and instituted in a court or tribunal to acquire a right or to enforce a remedy.

1 Appellee conceded that a Bill of Review should be granted with the filing of her Response to Appellant’s second Motion for Summary judgment filed on March 27, 2015. (Appendix #4) 16 Given that the Bill of Review procedure is specifically authorized by TRCP 329b(f),

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

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

Black’s definition. Travelers, ibid.

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

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

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

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

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

The distinctions between law and equity have never obtained in Texas…At most, the distinction in this states is a narrow one. In some aspects it may be said to be more one of form than of substance.

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

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

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

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

Bill of Review is a legal proceeding.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

attorneys’ fees for either party in the Underlying Suit.

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

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

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

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

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

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

Underlying Suit based on the lease agreement.

II. Was the Trial Court’s Granting of an Order for the Notice of Non-Suit without Prejudice in the Underlying Suit Appropriate?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suit without Prejudice.

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

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

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

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

Suit.

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

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

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

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

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

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

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

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

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

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

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

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

determined with a new judgment through the Bill of Review.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and therefore in the Bill of Review action.

22 CONCLUSION AND PRAYER

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

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

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

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

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

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

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

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

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

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

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

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

Appellant in the Underlying Suit based on the lease agreement.

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

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

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

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

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

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

fees could be awarded in the Underlying Suit.

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

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

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

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

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

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

attorneys’ fees for the prevailing party.

24 CERTIFICATE OF COMPLIANCE

I, Tom Murphy, certify that this computer-generated document that is subject to a word limit under Tex. R. App. P. 9.4(i) that the number of words in the document is 5248. I hereby certify that I am relying on the word count of the computer program used to prepare the document.

By: _______________________________ Tom Murphy

25 Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: ________________________________ Tom Murphy TSB # 24013217 9600 Great Hills Trail, Ste. 150W Austin, Texas 78759 (512) 477-5680 (512) 493-0691 Fax Email: tom@tommurphyslaw.com Attorney for Appellant Langdon

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above was delivered to the following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Evans Kosut Davidson, PLLC Court of Appeals Attn: John M. Davidson Third District of Texas 16000 Stuebner Airline Rd., Ste. 200 Attn: Jeffrey D. Kyle, Clerk of the Court Spring, Texas 77379 PO Box 12547 (281) 251-7900 Austin, Texas 78711-2547 (281) 251-7909 Fax Email: jdavidson@ekklaw.com Trial Attorney and Presumed Appellate Counsel for Gilbert ____________________________________ Tom Murphy

26 APPENDIX

Appendix #1. Copy of the Lease Agreement

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

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

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

Appendix #5. Appellee's First Amended Petition

Appendix #6. Motion for Default Judgment

Appendix #7. Final Judgment in the Underlying Suit

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

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

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

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

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

Appendix #13. 34 TexJur Equity §2

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas 1992, no writ)

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

27 Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d 674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t vacated w.r.m.)

Appendix #18. Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627 (Tex. App. – San Antonio 2011, no pet.)

Appendix #19. Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. – Austin 1938, no writ)

Appendix #20. G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930 S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied)

Appendix #21. Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174 (Tex. 1992)

Appendix #22. Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. – Dallas 1988, no writ)

Appendix #23. In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. – Houston [1st Dist.] 2007, no pet.)

Appendix #24. Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655 (Tex. 2009)

Appendix #25. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.)

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

Appendix #27. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex. App. —San Antonio 1999, pet. denied)

Appendix #28. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.)

Appendix #29. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009)

28 Appendix #30. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58 (Tex. 2008)

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

Appendix #32. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

Appendix #33. Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no pet.)

Appendix #34. Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App. - Austin 1981, no writ)

Appendix #35. Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex. App.-Houston [1st Dist.] 1992, no writ)

Appendix #36. Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010)

Appendix #37. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996)

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

29 APPENDIX #1 4109 Michael Ne ill Re~denUalLease~ncerning: ~~~~~~~~~~~~~~=u=s~t=i~n~~T=~~~7~8~7~3~0~~~~~~~~~~~~~

B. For the purposes of paying rent and any late charges, the mailbox is not the agent for receipt for Landlord (the postmark date is not the date Landlord receives the payment). The parties agree that the late charge is based on a reasonable estimate of uncertain damages to the Landlord that are incapable of precise calculation and result from late payment of rent. Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 27.

7. RETURNED PAYMENT: Tenant will pay Landlord$ 25. 00 for each payment Tenant tenders to Landlord which is returned or not honored by the institution on which it is drawn for any reason, plus any late charges .until landlord receives payment. Tenant must make any returned payment good by paying such amount(s) plus any associated charges in certified funds.

8. APPLICATION OF FUNDS: Regardless of any notation on a payment Landlord may apply funds received from Tenant first to any non-rent obligations of Tenant. including but not limited to late charges returned payment charges repairs, brokerage fees periodic utilities, pet charges, and then to rent.

9. PETS:

A. Unless the parties agree otherwise in writing, .I.enanLm~.ru:ll_p_ermi.t.....fMlll temporarily,_am(_p.et_mL1M Property (including but not limited to any mammal, reptile, bird, fish, rodent, or insect}.

B. If Tenant violates this Paragraph 9 or any agreement to keep a pet on the Property, Landlord may take all or any of the following action: (1) declare Tenant to be in default of this lease and exercise Landlord's remedies under Paragraph 27; (2) charge Tenant, as additional rent, an initial amount of$ and $ - -- - -- -- per day thereafter per pet for each day Tenant violates the pet restrictions; (3) remove or cause to be removed any unauthorized pet and deliver it to appropriate local authorities by providing at least 24-hour written notice to Tenant of Landlord's intention to remove the unauthorized pet; and (4) charge to Tenant the Landlord's cost to: (a) remove any unauthorized pet; (b) exterminate the Property for fleas and other insects; (c) clean and deodorize the Property's carpets and drapes; and (d) repair any damage to the Property caused by the unauthorized pet.

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

10. SECURITY DEPOSIT:

A . Security Deposit: On or before execution of this lease, Tenant will pay a security deposit to Landlord in the amount of$ 3, 000 . 00 . "Security deposit" has the meaning assigned to that term in §92.102, Property Code.

B. Interest: No interest or income will be paid to Tenant on the security deposit. Landlord may place the security deposit in an interest-bearing or income-producing account and any interest or income earned will be paid to Landlord or Landlord's representative.

C. Bfilun.d.: Tenant must give Landlord at feast thirty (30) days written notice of surrender before Landlord is obligated to refund or account for the security deposit.

Notices about Security Deposits: (1) §92.108, Property Code provides that a tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent.

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

P1oduced with ZipForm~ by zlploglx 18070 Fifteen Mlle Road. F1asor, Michigan 48026 VNIW zipl ogjx com Lease Listing REDACTED PER TRAP 9.9 APPENDIX #2 CAUSE NO. C-1-CV-14-003653 Filed: 4/21/2015 4:58:55 PM Dana DeBeauvoir JOHN BRYAN LANGDON § IN THE COUNTY COURT Travis County Clerk Plaintiff, § C-1-CV-14-003653 § Sophia Delacroix v. § AT LAW #2 § LESLIE MATHISON GILBERT, § Defendant. § TRAVIS COUNTY, TEXAS

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION FOR BILL OF REVIEW

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

action would show the following:

I. DISCOVERY

1. Discovery in this case is intended to be conducted under Level 1 of Rule 190 of the Texas Rules of Civil Procedure. Plaintiffs seeks monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest, and attorney’s fees.

II. PARTIES AND SERVICE

2. Plaintiff is John Bryan Langdon, (“Mr. Langdon” or “Plaintiff”) is an individual currently residing at 1004 West Wayne St., Fort Wayne, Indiana 46802.

3. Defendant is Leslie Mathison Gilbert (“Ms. Gilbert” or “Defendant”) has already appeared and may be served by delivery to her attorney of record pursuant to the TRCP.

III. JURISDICTION AND VENUE

4. The amount in controversy, exclusive of interest and costs, is within the jurisdictional limits of this Court. Venue is proper in Travis County, Texas as the real property at issue and the events that gave rise to this lawsuit are located within Travis County, Texas. All conditions precedent to Plaintiff’s right to recover has been performed or has occurred.

IV. FACTUAL BACKGROUND

5. The Defendant filed suit in this Court against the Plaintiff for damages related to a Residential Lease Agreement in Cause No. C-1-CV-13-009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default judgment rendered on or about March 19, 2014. A copy of the Default Judgment is attached hereto as Exhibit A.

6. In such suit, Plaintiff Mr. Langdon was found liable for bad faith in failing to provide an accounting and refund of Ms. Gilbert’s security deposit, as well as retaining an overpayment of rents in the amount of $1,500.00. Attorney’s fees, civil penalty and trebling of damages were also entered against Mr. Langdon.

7. In filing the suit, Ms. Gilbert tendered service of process to the Texas Secretary of State, alleging that the Secretary of State was the agent for Mr. Langdon because Mr. Langdon has not designated or maintained a resident agent for service of in Texas, that he engaged in business in Texas, does not maintain a regular place of business in Texas, and that the lawsuit arises from Mr. Langdon’s business in Texas. As such, Ms. Gilbert alleges that the Secretary of State was the proper agent for service pursuant to Tex. Civ. Prac. & Rem. Code §17.044. 8. Upon serving the Secretary of State, Ms. Gilbert, she was required to provide the Secretary of State a document that contains a statement of the name and address to deliver Notice of Citation to Mr. Langdon, pursuant to Tex. Civ. Prac. & Rem. Code §17.045. The return of service includes the address provided by Defendant Ms. Gilbert to the Secretary of State. See Exhibit B.

9. Ms. Gilbert provided the Secretary of State the following address: 275 2nd Ave., Long Branch, New Jersey 07740.

10. This address was not the address of Mr. Langdon. Mr. Langdon’s correct address is 275 2nd Ave. Front, Long Branch, New Jersey 07740.

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

V. BILL OF REVIEW STANDARD

12. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the factual statements contained in the preceding paragraphs into this Section V.

13. A default judgment may be attacked by a Bill of Review after it is too late to file either an appeal or Motion for New Trial. Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (Tex. 2012).

14. Mr. Langdon must file a sworn pleading that states the grounds for the Bill of Review. Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). To be entitled to a hearing, the petition must make a prima facia showing of sufficient cause, which is not defined by TRCP 329(b).

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

16. Ordinarily for a Bill of Review, a party must prove 1) a meritorious defense; 2) justification for failure to assert the defense; and 3) no fault or negligence on the part of Mr. Langdon for the rendering of the default judgment. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). However, when to establish sufficient cause when there is a due- process violation claimed, Mr. Langdon is not required to prove the first two elements set out above. Mabon Ltd., 369 S.W.3d at 812; Caldwell, 154 S.W.3d 96-97.

17. Judgment rendered without proper service is a violation of due process. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 (1988). Further, the third element, no fault or negligence, is conclusively established if Mr. Langdon proves he was not served with process. Mabon Ltd., 369 S.W.3d at 812; Ross v. National Ctr. For the Empl. Of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006). A party that did not get served with process or who did not receive notice cannot be at fault or negligent in allowing a default judgment to be rendered. Caldwell at 154 S.W.3d at 97; Cash v. Beaumont Dealers Auto Auction, Inc., 275 S.W.3d 915, 918-19 (Tex. App. – Beaumont 2009, no pet.).

VI. ARGUMENT

18. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the factual statements contained in the preceding paragraphs into this Section VI.

19. As previously stated, the Secretary of State was served with the citation for the underlying cause, to wit Ms. Gilbert provided an incorrect address for Mr. Langdon, or the Secretary of State delivered citation to an incorrect address. The Secretary of State delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. A copy of the Secretary of State’s Return of Service is attached hereto as Exhibit B and incorporated herein by reference as if fully set forth at length. 20. The Return of Service evidences that Citation was delivered to 275 2nd Ave., Long Branch, New Jersey 07740. However, Mr. Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740.

21. In Royal Surplus Lines v. Samaria Baptist Church, 840 S.W.2d 382, 383 (Tex. 1992), the Secretary of State delivered citation to Defendant addressed to “1201 Bassie”, rather than “1201 Bessie”. Even though such error was “a typographical error in the forwarding address typed by the Secretary is grounds to set aside a default judgment based on substituted service.” In doing so, Royal Surplus cites to Uvalde Country Club v. Martin Linen Supply Co., 690 SW2d 884, 884 (Tex. 1985), which overturned a default judgment on the hyper- technical ‘invalid service’ grounds that the citation naming defendant’s agent omitted the “Jr.” at the end of his name.

22. In Commission of Contracts of General Executive Committee of Petroleum Workers Union of Republic of Mexico v. Arriba, Ltd., 882 SW2d 576, 585 (Tex. App. – Houston [1st Dist.] 1994, no pet.), is a bill of review case where a default judgment was overturned where SOS service had been to “37 Bahia de Espiruta Santo Esquira (at the corner of) Bahia de Ballenas”, rather than on the correct “37 Bahia de Todos Santos (at the corner of) Bahia de Ballenas”, some three blocks away.

23. In Salzgitter v. Alexander Steel Sales, 2011 US Dist. LEXIS 52098 (S.D. Tex. May 16, 2011), long arm service via Texas SOS found defective where address was off by one digit, holding that such does not strictly comply with the Texas long arm statute. Also notes in dicta at n.13 that if a plaintiff could serve an out- of-state defendant merely by supplying the Texas SOS an incorrect address, “the nonresident’s due process rights [appear] to be in significant danger.”

24. In Marquez v. Greig, 2012 Tex. App. LEXIS 6551 *6-7 (Tex. App. – Houston [1st Dist.] August 9, 2012, no pet.), a default judgment was overturned via restricted appeal where the correct address was “2155 North Fairview”, but SOS had forwarded citation to “2155 Northfairview” and it had been returned marked “unclaimed”. Marquez cites both Royal Surplus and Uvalde Country Club to the effect that where there is evidence that the defendant’s actual address differed, IF ONLY SLIGHTLY, from the address to which the Secretary of State forwarded service of process, the court held that the record does not affirmatively show strict compliance with the rules governing service of process.

25. In Harper McLeod Solicitors v. Keaty & Keaty, 260 F.3d 389, 398-99 (5th Cir. 2001), upheld the voiding of a default judgment because, among other things, plaintiff provided the Texas SOS an address that contained an erroneous suite number. Harper also cites to both Royal Surplus and Arriba, infra, in holding that Texas courts have consistently required strict compliance with the terms of the long arm statute” … and that “a typographical error in the forwarding address …is grounds to set aside a default judgment.” Also states that defendant having ACTUAL NOTICE without proper service is irrelevant, because without such proper service, a court cannot gain jurisdiction over such an out-of-state defendant, whether he has notice or not.

26. Lastly, in Shackelford v. Carter Copters, 2011 Tex. App. LEXIS 7150 *12 (Tex. App. – Fort Worth Aug 31, 2011, no pet.), a party challenging default judgment under bill of review survives summary judgment, which was a case that involved SOS service on out-of-state resident at “333 Howard Street” rather than “333B Howard Street”. Citing Royal Surplus, the Shackelford court muses that such an address may not be incorrect, but it is incomplete, and allows defendant’s case to go forward, despite the fact that the citation came back ‘refused’ (and not merely undelivered).

27. In our case, the SOS delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. However, Mr. Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740. The address is incorrect or at the least incomplete. As such strict compliance with delivery of citation has not been met. Therefore, Mr. Langdon’s due process rights have been violation, and he need not prove the first two elements required by a Bill of Review, and the third element is conclusively proved by establishing that he was not served with process. 28. Mr. Langdon has no adequate legal remedy now available to avoid the effect of the erroneous Default Judgment. Mr. Langdon did not have nor acquired actual knowledge of the Default Judgment until he was contacted by opposing counsel in the underlying lawsuit until after the Court’s plenary power terminated. Accordingly, the court should void the underlying judgment, and permit a new trial, after discovery has been conducted, to go forth.

VII. ATTORNEY’S FEES

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

(a) Investigation, and other Pre-Trial Matters; (b) Preparation and trial of this lawsuit; (c) Post-trial, pre-appeal legal services; (d) An appeal to the court of appeals; (e) Making or responding to an application for petition of review to the Supreme Court of Texas; (f) An appeal to the Supreme Court of Texas in the event application for petition for review is granted; and (g) Post judgment discovery and collection in the event execution on the judgment is necessary.

30. A reasonable fee for the attorney’s services rendered and to be rendered is at least $7,500.00. Attorney’s fees are authorized under Tex. Civ. Prac. & Rem. Code §38.000 et seq. and the Lease Agreement at ¶29 attached as Exhibit C.

VIII.

WHEREFORE, Plaintiff requests that Defendant be cited to appear and answer; that a new trial be granted; and that on final trial hereof, the Court order that the Default Judgment be set aside and vacated; that the Court enter judgment that the Defendant Ms. Gilbert take nothing; that Plaintiff recover from the Defendant, his damages and costs herein expended; attorney’s fees, and have such other and further relief, at law or in equity, as to which he may be justly entitled.

Respectfully submitted,

By: _______________________________________ Tom Murphy TSB # 24013217 9600 Great Hills Trail, Ste. 150W Austin, Texas 78759 (512) 477-5680 (512) 493-0691 Fax Email: tom@tommurphyslaw.com Attorney for Langdon CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was delivered to the following parties or their attorneys of record pursuant to the TRCP on April 21, 2015.

Troup & Bruce, LLP Evans Kosut Davidson, PLLC Attn: Blair Bruce Attn: John M. Davidson 211 Florence 16000 Stuebner Airline Rd., Suite 200 Tomball, Texas 77375 Spring, Texas 77379 (281) 516-1100 (281) 251-7900 (281) 516-1180 Fax (281) 251-7909 Fax blair@troupbruce.com jdavidson@ekklaw.com

________________________________________ Tom Murphy APPENDIX #3 EXHIBIT B APPENDIX #4 NO. C-1-CV-14-003653

JOHN BRYAN LANGDON ' IN THE COUNTY COURT Plaintiff, ' ' VS. ' AT LAW #2 OF ' LESLIE MATHISON GILBERT, ' Defendant ' TRAVIS COUNTY, TEXAS

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT FOR BILL OF REVIEW AND NO EVIDENCE MOTION SOR SUMMARY JUDGMENT

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

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

Summary Judgment.

SUMMARY:

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

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

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

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

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

thus, summary judgment is improper.

RESPONSE:

1. Defendant Gilbert concedes that the Court should grant Plaintiff Langdon’s bill of review and set aside the underlying judgment.

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

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

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

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

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

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

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

2. Defendant Gilbert objects to any award of attorney’s fees to Plaintiff Langdon since there is no legal support for it; thus the Court should deny summary judgment.

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

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

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

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

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

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

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

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

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

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

3. Alternatively, there is a question of material fact regarding whether the attorney’s fees sought are reasonable or necessary, and the Court should deny summary judgment.

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

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

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

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

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

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

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

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

Civ. Prac. & Rem. Code 38.002. 2 THEREFORE, Defendant requests that the underlying judgment be set aside and

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

Defendant may be justly entitled.

EVANS KOSUT DAVIDSON, PLLC

/s/ John M. Davidson By: ______________________________________ John M. Davidson State Bar No. 05434980 16000 Stuebner Airline Rd., Suite 200 Spring, Texas 77379 281-251-7900 – Telephone 281-251-7909 – Fax jdavidson@ekklaw.com

CERTIFICATE OF SERVICE

I certify that a true copy of the above document has this 27th day of March, 2015, been served to counsel of record as follows:

Via eFiling and/or eMail: tom@tommurphyslaw.com Tom Murphy Law Office of Tom Murphy 9600 Great Hills Trail, Ste. 150W Austin, TX 78759

/s/ John M. Davidson By: ______________________________________ John M. Davidson

3 NO. C-1-CV-14-003653

JOHN BRYAN LANGDON § IN THE COUNTY COURT Plaintiff, § § VS, § AT LAW #2 OF § LESLIE MATHISON GILBERT, § Defendant § TRAVIS COUNTY, TEXAS AFFIDAVIT OF JOHN M. DAVIDSON STATE OF TEXAS § COUNTY OF HARRIS §

Before me, the undersigned authority, personally appeared John M. Davidson who, upon his oath, deposed and said:

1. “My name is John M. Davidson. I am over 21 years of age and fully competent to execute this affidavit. I am an attorney with the law firm of Evans Kosut Davidson, PLLC in Spring, Texas, and the attorney for LESLIE MATHISON GILBERT, Defendant in the above- captioned action. I have personal knowledge of the facts in this affidavit, and those facts are true and correct.

2. I am an attorney in State of Texas and have been a good standing licensed -in the practicing attorney in Houston, Texas and nearby counties for 25 years. I am generally familiar with the attorney’s fees charged by litigation counsel in Travis County, Texas.

3. I am of the opinion that $18,500.00 in attomey’s fees, and related appellate fee requests, would n_ot be a reasonable fee for the services summarily described in Plaintiffs attomey’s affidavit marked as Plaintiffs Exhibit B. Further, Plaintiffs affidavit fails to state Plaintiffs counsel’s hourly rate or provide any level of detailed billing as required by the Texas Supreme Court in El Apple 1, Ltd. V. Olivas, 370 S.W.3d 757, 763-765 (Tex. 2012).

4. It is my opinion that these fees are n_ot reasonable or necessary attorney's fees based upon the factors set forth in Rule 1.4 of the Texas Disciplinary Rules of Professional Conduct, and the case law interpreting this Rule:

a. The time and labor required, the novelty and difficulty of the issue involved, the skill required to provide the legal services properly, and the experience, reputation, and expertise of the lawyer or lawyers performing the services;

b. The likelihood that the acceptance of the particular employment will preclude other employment by the attorney; c. The fee customarily charged .in the community for similar legal services.

d. The amount involved and the result obtained;

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

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

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

h. Whether or not the fee is fixed or contingent on the results obtained — that is the uncertainty of collection before legal services have been rendered; and

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

5. In my opinion, the reasonable and necessary attorney’s fees, if any, for this Plaintiff in a simple default judgment based upon incorrect service type of case, would be significantly lower than the amount being requested by Plaintiff in this bill of review proceeding. Further, it would be inequitable to award the fees requested by Plaintiff since Plaintiffs counsel could have timely filed a motion for new trial and avoided the need for any bill of review proceeding.

Further Affiant sayeth not.”

By: John M. Davidson

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

By: /ll/\/LUL Notf/jlirublic, State of Texas APPENDIX #5 U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L REDACTED PER TRAP 9.9

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L IA IC FF O N U U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L ACCEPTED 03-15-00305-CV 5651777 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/12/2015 10:17:57 AM JEFFREY D. KYLE CLERK APPELLATE CASE NO. 03-15-00305-CV

JOHN BRYAN LANGDON Appellant

v.

On Appeal from the County Court at Law Number Two of Travis County, Texas

APPELLANT’S APPENDIX

__________________________________________________________________

Leslie Mathison Gilbert John Bryan Langdon Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy Attn: John M. Davidson Attn: Tom Murphy 16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W Spring, Texas 77379 Austin, Texas 78759 (281) 251-7900 (512) 477-5680 (281) 251-7909 Fax (512) 493-0691 Fax Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com Trial Attorney and Trial Attorney and Presumed Appellee Counsel for Gilbert Appellate Counsel for Langdon Respectfully submitted,

By: ________________________________ Tom Murphy TSB # 24013217 9600 Great Hills Trail, Ste. 150W Austin, Texas 78759 (512) 477-5680 (512) 493-0691 Fax Email: tom@tommurphyslaw.com Attorney for Appellant Langdon

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above was delivered to the following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Evans Kosut Davidson, PLLC Court of Appeals Attn: John M. Davidson Third District of Texas 16000 Stuebner Airline Rd., Ste. 200 Attn: Jeffrey D. Kyle, Clerk of the Court Spring, Texas 77379 PO Box 12547 (281) 251-7900 Austin, Texas 78711-2547 (281) 251-7909 Fax Email: jdavidson@ekklaw.com Trial Attorney and Presumed Appellate Counsel for Gilbert ____________________________________ Tom Murphy APPENDIX

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

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

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

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

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. - Dallas 1992, no writ)

Appendix #16. Black’s Law Dictionary, 10th ed. (2014) Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d 674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t vacated w.r.m.)

Appendix #18. Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627 (Tex. App. – San Antonio 2011, no pet.)

Appendix #19. Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. – Austin 1938, no writ)

Appendix #20. G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930 S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied)

Appendix #21. Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174 (Tex. 1992)

Appendix #22. Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. – Dallas 1988, no writ)

Appendix #23. In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. – Houston [1st Dist.] 2007, no pet.)

Appendix #24. Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655 (Tex. 2009)

Appendix #25. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.)

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

Appendix #27. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex. App. —San Antonio 1999, pet. denied)

Appendix #28. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.)

Appendix #29. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009) Appendix #30. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58 (Tex. 2008)

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

Appendix #32. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

Appendix #33. Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no pet.)

Appendix #34. Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App. - Austin 1981, no writ)

Appendix #35. Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex. App.-Houston [1st Dist.] 1992, no writ)

Appendix #36. Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010)

Appendix #37. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996)

Appendix #38. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010) APPENDIX #7 U N O FF IC IA L U N O FF IC IA L U N O FF IC IA L APPENDIX #8 U N O FF IC IA L APPENDIX #9 RULE 54

CONDITIONS PRECEDENT

In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the opposite party. APPENDIX #10 RULE 329b(d)

TIME FOR FILING MOTIONS

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:

(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed. APPENDIX #11 RULE 329b(f)

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:

(f) On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired. APPENDIX #12 APPENDIX #13 APPENDIX #14 EXCERPTED

Page 877 Sale and Purchase Agreement whereby AMTJ, Inc. agreed to buy Grady Chevrolet's assets under the terms 287 S.W.3d 877 (Tex.App.-Dallas 2009) and conditions in the agreement.

ALAN REUBER CHEVROLET, INC., Appellant Four provisions of the agreement are relevant to the issues presented on appeal. First, AMTJ, Inc. agreed v. to buy fixed assets at a price calculated on their fair market value as appraised. Second, AMTJ, Inc. also GRADY CHEVROLET, LTD., Formerly Grady agreed to buy all the " non-obsolete current, unused, new Chevrolet Company, Appellee. and returnable Chevrolet factory parts and accessories" on hand when the sale closed. These parts were to be No. 05-08-00107-CV. inventoried and valued at the net cost to Grady Chevrolet Court of Appeals of Texas, Fifth District, Dallas as set forth in the most recent Chevrolet price book, less any discounts or rebates reflected on the parts invoices. June 9, 2009 Third, AMTJ, Inc. agreed to purchase " all non-Chevrolet factory parts and accessories" on hand at the time of Page 878 closing at fair market value, but if the parties could not agree on their fair market value, they would not be [Copyrighted Material Omitted] subject to the agreement.

Page 879 Page 881

[Copyrighted Material Omitted] Fourth, the agreement provided (in section 17) the following regarding attorney's fees and costs: Page 880 In the event of any litigation between the Parties hereto to Jay Edward Ray, Glast, Phillips & Murray, PC, enforce any provisions or rights hereunder, the Dallas, for Appellant. unsuccessful Party to such litigation shall pay to the successful Party therein all costs and expenses expressly Joe E. Weis, Pemberton, Green, Newcomb and including, but not limited to, reasonable attorney's fees ..., Weis, Greenville, for Appellee. which ... attorney's fees shall be included in and as part of Before Justices MOSELEY, FITZGERALD, and any judgment rendered in such litigation. LANG-MIERS. The fixed assets were appraised by Travis R. OPINION Fralicks, who submitted an appraisal to both parties. The parts were inventoried and valued by Leighton Railsback; MOSELEY, Justice. he referred to a nonreturnable part as a " nonconforming" part. [1] As relevant here, he valued the nonreturnable In this appeal, we decide whether: (1) Alan Reuber parts at just under $60,000. Before the closing, AMTJ, Chevrolet, Inc. (ARCI) is entitled to recover attorney's Inc. assigned its rights and obligations under the fees as the successful party to Grady Chevrolet, Ltd.'s agreement to ARCI. The sale closed November 13, 2001, breach of contract claim, despite pleading and procedure with the sale price based on the appraisals and issues; and (2) the evidence supports the findings on the inventories. damages awarded to Grady Chevrolet on its conversion claim. Because we answer both of those questions in the Four days after the closing, Grady mistakenly affirmative, we reverse the trial court's revised final opened an envelope from Fralicks to Reuber; the judgment to the extent it denies ARCI's claim for envelope contained another appraisal-at higher values-of attorney's fees and remand this case to the trial court for the fixed assets involved in the sale. Attached to the further proceedings on that claim. In all other respects, second appraisal was a handwritten note from Fralicks to we affirm the revised final judgment. Reuber: " Alan: This info for your use only." Grady believed the second appraisal was evidence that he I. FACTUAL BACKGROUND received less at the closing than he should have received. Additionally, Grady was unsuccessful in obtaining the Jerry Grady was the president of Grady Chevrolet nonreturnable parts, which had been excepted from the Company, which operated a Chevrolet dealership in sale, from ARCI. Greenville, Texas. Alan Reuber was the president of ARCI and AMTJ, Inc. In September 2001, Grady and II. PROCEDURAL BACKGROUND Reuber, as corporate officers, signed a Dealership Asset …… unspecific, to be the basis of an award of attorneys' fees under the [agreement]." Prejudgment letters of this sort Page 883 do not constitute findings of fact and conclusions of law and are not competent evidence of a trial court's basis for III. ATTORNEY'S FEES judgment. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex.1990) Pertinent to the issues on appeal as to ARCI's (discussing letter to parties characterized as findings of request for attorney's fees, trial court found that: (1) fact, trial court " could have disregarded the evidence at ARCI's live pleading contained a general prayer for the time judgment was actually signed" and such letter " recovery of attorney's fees without specifying any statute is not a finding of fact" as contemplated by rules of civil or other basis on which ARCI could recover attorney's procedure 296 through 299); Mondragon v. Austin, 954 fees; and (2) although Grady Chevrolet failed to meet its S.W.2d 191, 193 (Tex.App.-Austin 1997, pet. denied) burden of proof on its breach of contract claim against (prejudgment letter " cannot constitute findings of fact ARCI, Grady Chevrolet abandoned its breach of contract and conclusions of law" ; citing Cherokee Water Co., 801 claim against ARCI before the judgment was signed. S.W.2d at 878). However, in its findings of fact, the trial In its first and third issues, ARCI attacks the trial court stated: court's failure to award it attorney's fees as the successful 20. Said First Amended Original Answer filed by ARCI, party on Grady Chevrolet's breach of contract claim. within its prayer, contained a general prayer for recovery Specifically, ARCI argues the trial court erred in denying of attorney's fees without its attorney's fees claim as the " successful party" under the agreement on the grounds that: (1) it had not Page 884 sufficiently pleaded that claim; and (2) Grady Chevrolet abandoned its breach of contract claim after the trial court specifying any statute or other basis on which attorney's had already found that ARCI had not breached the fees could be recovered by ARCI. contract. While this conclusion of law, stated as a finding of A. Standard of Review fact, does not exactly express the same opinion in the letter, we conclude that ARCI's arguments encompass A trial court's conclusions of law are always and attack this conclusion. reviewable. Spiller v. Spiller, 901 S.W.2d 553, 556 (Tex.App.-San Antonio 1995, writ denied). We uphold 1. Applicable Law and Standard of Review conclusions of law on appeal if the judgment can be sustained on any legal theory supported by the evidence. Attorney's fees may not be recovered unless Id. We do not reverse a conclusion of law unless it is provided for by statute or by contract between the parties. erroneous as a matter of law. Westech Eng'g, Inc. v. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 Clearwater Constructors, Inc., 835 S.W.2d 190, 196 S.W.2d 75, 77 (Tex.1992). Absent a mandatory statute, a (Tex.App.-Austin 1992, no writ). We review a trial trial court's jurisdiction to render a judgment for court's conclusions of law de novo as legal questions, attorney's fees must be invoked by pleadings, and a affording no deference to the lower court's decision. judgment not supported by pleadings requesting an award Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 of attorney's fees is a nullity. State v. Estate of Brown, S.W.3d 212, 227 (Tex.2002). Under de novo review, we 802 S.W.2d 898, 900 (Tex.App.-San Antonio 1991, no exercise our own judgment and redetermine each legal pet.) (citing Wolters v. White, 659 S.W.2d 885, 888 issue. Id. at 222. We do not reverse a judgment for (Tex.App.-San Antonio 1983, writ dism'd), and Ex parte incorrect conclusions of law if the controlling findings of Fleming, 532 S.W.2d 122, 123 (Tex.Civ.App.-Dallas fact support the judgment under a correct legal theory. 1975, orig. proceeding)). See In re Pecht, 874 S.W.2d Westech Eng'g, Inc., 835 S.W.2d at 196. 797, 803 (Tex.App.-Texarkana 1994, no writ) (" In order to be entitled to a discretionary award of attorney's fees, B. Sufficient Pleading for Attorney's Fees however, the movant must affirmatively plead for them unless the issue is waived or tried by consent." ). In its first issue, ARCI argues it properly pleaded for the recovery of its attorney's fees in its first amended " The office of pleadings is to define the issues at original answer and its general request for attorney's fees trial, and to give the opposing party information therein provided sufficient and fair notice to Grady sufficient to enable him to prepare a defense." Estate of Chevrolet that it was seeking attorney's fees pursuant to Brown, 802 S.W.2d at 900 (quoting Murray v. O & A section 17. Express, Inc., 630 S.W.2d 633, 636 (Tex.1982), and Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982)). " ARCI's briefing is directed primarily to the trial Texas follows a ' fair notice' standard for pleading, in court's statement in the September 10, 2007 letter that which courts assess the sufficiency of pleadings by ARCI's request for attorney's fees " in the prayer alone, determining whether an opposing party can ascertain and not in the body of its answer, is insufficient, and too from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy." Low v. Henry, 221 S.W.3d 609, 612 (Tex.2007) (citing Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex.2000)). See TEX.R. CIV. P. 47(a).

A general prayer for relief will not support an award of attorney's fees because it is a request for affirmative relief that must be supported by the pleadings. Varner v. Howe, 860 S.W.2d 458, 466 (Tex.App.-El Paso 1993, no writ). See Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex.1979) (" The prayer for general relief is of no assistance [in giving fair notice of a claim] because a prayer must be consistent with the facts stated as a basis for relief." ). However, in passing on the sufficiency of a pleading, all allegations in the adversary's pleading may be considered, and any omission in the pleading is cured when the omission is supplied by the opponent's pleading. S. Ins. Co. v. Fed. Serv. Fin. Corp., 370 S.W.2d 24, 28 (Tex.Civ.App.-Austin 1963, writ dism'd). See Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex.1980) (" In determining whether issues are supported by pleadings, the trial court will supply omissions in the pleadings of one party by referring to the allegations contained in the pleadings of another." ); Lacy v. First Nat'l Bank, 809 S.W.2d 362, 365 (Tex.App.-Beaumont 1991, no writ) (same); Whittington v. Glazier, 81 S.W.2d 543, 545 (Tex.Civ.App.-Texarkana 1935, writ ref'd) (same). An opposing party should use special exceptions to identify defects in a pleading so that they may be cured, if possible, by amendment. Auld, 34 S.W.3d at 897. When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader. Id.

Whether a party is entitled to recover attorney's fees is a question of law

Page 885

that we review de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999). APPENDIX #15 EXCERPTED

Page 251 The trial court approved the settlement and granted a divorce. The attorneys were instructed to prepare a 830 S.W.2d 251 (Tex.App. —Dallas 1992) divorce decree that reflected the agreement of the parties. The judge stated that if the parties could not agree on a Saleha BAKALI, Appellant, written order, the statement of facts would be transcribed to act as a decree. v. Husband's attorney drafted a divorce decree and Gulam Ishaq BAKALI, Appellee. submitted it to wife's attorney and the trial court. This proposed decree did not comport with the agreement read No. 05-91-00756-CV. into the record in several material respects. Specifically, Court of Appeals of Texas, Fifth District, Dallas the decree awarded husband (1) all of his stock in Lockwood Green Engineering; (2) two IRA's in his name; April 21, 1992 (3) the unpaid bonuses that accrued while he was employed at Lockwood; and (4) a Honda automobile. Page 252 The decree also ordered wife to pay certain medical expenses and a portion of any tax liability for 1988. [Copyrighted Material Omitted] On August 21, 1989, wife's attorney sent a letter to Page 253 the judge objecting to the payment of medical expenses and income taxes set forth in the divorce decree. Counsel Mark H. How, Marcia F. Pennell, Dallas, for also requested a telephone conference prior to the entry appellant. of the decree. On August 24, 1989, husband's attorney wrote to the judge stating that the matters raised by wife's Khalid Y. Hamideh, Prema A. Velu, Dallas, for attorney had been resolved and that a telephone appellee. conference would not be necessary. The judge struck the Before STEWART, CHAPMAN and KAPLAN, JJ. provisions pertaining to the payment of medical expenses. OPINION The divorce decree was signed on August 29, 1989. KAPLAN, Justice. On that same day, the judge sent a letter to counsel for both parties enclosing a copy of the signed divorce Saleha Bakali appeals from a summary judgment decree. The judge instructed husband's attorney to file the denying her petition for bill of review and awarding her original decree by September 19, 1989, whether or not it former husband attorney's fees. In four points of error, was approved by opposing counsel. The signed decree wife contends that (1) the underlying divorce decree is was tendered to the clerk on September 19, void and subject to collateral attack, (2) the trial court erred in granting summary judgment, and (3) the trial Page 254 court erred in awarding attorney's fees to husband. We overrule all points of error and affirm the trial court's 1989. The decree was never approved by wife's attorney. judgment. …………………………. FACTUAL BACKGROUND

Gulam Ishaq Bakali sued his wife for divorce. The case was specially set for trial on July 20, 1989. After one Husband attached an affidavit from the judge's full day of testimony and hours of negotiation, the parties personal secretary to his motion for announced to the court that they had reached a settlement. A settlement agreement was dictated into the record. The Page 257 agreement provided that (1) each party would receive all summary judgment. This affidavit states that the signed personal property in his or her possession; (2) wife would divorce decree was sent to wife's attorney on August 29, receive sixty percent of the community property interest 1989. A copy of the transmittal letter to the attorneys for in husband's retirement plan at Lockwood Green both parties is attached as an exhibit to the affidavit. This Engineering; (3) wife would receive $450 a month for evidence is uncontroverted. The affidavit and exhibits are eighteen months as her community share of husband's sufficient to show compliance with the duties imposed on profit sharing plan at Lockwood; and (4) wife would court clerks under rule 306a(3) of the Texas Rules of receive sixty percent of the remaining marital assets. Civil Procedure and to negate any allegation of official mistake.

Husband has conclusively negated one essential element of wife's cause of action. We conclude that the trial court properly granted husband's motion for summary judgment. Wife's third point of error is overruled.

ATTORNEY'S FEES

Finally, wife contends that the trial court erred in granting attorney's fees to her former husband. Specifically, she contends that there is no basis in law for awarding attorney's fees in a bill of review proceeding.

A party who successfully defends a bill of review is entitled to recover attorney's fees if attorney's fees are authorized in the prosecution or defense of the underlying case. Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex.1982). The legislature has authorized trial courts to award reasonable attorney's fees and expenses in divorce proceedings. TEX.FAM.CODE ANN. §§ 3.65, 3.77, and 3.93 (Vernon Supp.1992). Trial courts also have the discretion to award reasonable attorney's fees for the appeal of divorce actions. Dickson v. McWilliams, 543 S.W.2d 868, 870 (Tex.App.--Houston [1st Dist.] 1976, no writ). Because husband could have recovered attorney's fees if wife had appealed the divorce decree, the trial court did not err in awarding attorney's fees in this bill of review proceeding. Wife's fourth point of error is overruled.

The judgment of the trial court is affirmed. APPENDIX #16 Black’s Law Dictionary, 10th ed. (2014)

Legal Proceeding – “Any proceeding authorized by law and instituted in a court or

tribunal to acquire a right or to enforce a remedy.” APPENDIX #17 EXCERPTED

Page 674 Page 676

406 S.W.3d 674 (Tex.App.-Fort Worth 2013) CenterPlace. We reverse and render in part and affirm in part. CENTERPLACE PROPERTIES, LTD., Appellant II. Background v. Ganesh Harpavat, general partner of CenterPlace, COLUMBIA MEDICAL CENTER OF formed CenterPlace in 1998 to develop a commercial LEWISVILLE SUBSIDIARY, L.P. d/b/a Medical property complex on three tracts of land that he owned in Center of Lewisville and Raymond Dunning, Flower Mound, Texas. Harpavat's development plan was Appellees. to construct three medical office buildings referred to as CenterPlace I, CenterPlace II, and CenterPlace III. No. 02-11-00049-CV. CenterPlace I was completed in 1998, and CenterPlace II was completed in 2004.[2] Court of Appeals of Texas, Second District, Fort Worth In 2004, CenterPlace and MCL began negotiations for MCL to lease space in CenterPlace II for an May 30, 2013 ambulatory surgery center or medical and administrative Rehearing Overruled Aug. 1, 2013. offices. On November 22, 2004, CenterPlace and MCL entered into a ten-year lease (the lease) covering Page 675 approximately 17,300 square feet, the entire first floor of CenterPlace II (the premises). At that time, MCL planned John H. Cayce Jr., Adrienne N. Wall, Kelly Hart & to build out the premises for use as an ambulatory surgery Hallman LLP, Fort Worth, TX, for Appellant. facility.

Sherri T. Alexander, Angela R. Joyce, Bell Section 10 of the lease provided that " [t]he parties Nunnally & Martin LLP, Dallas, TX, for Appellees. acknowledge and agree that [MCL] may make alterations and improvements to the interior of the Leased Space in PANEL: GARDNER, WALKER, and MEIER, JJ. order to prepare the Leased Space for use by [MCL] as medical offices and/or an outpatient surgery facility." OPINION Another part of Section 10 required that CenterPlace provide MCL an allowance of $536,200 for tenant ANNE GARDNER, Justice. improvements (the TI funds) to finish out the premises. CenterPlace was required to provide the TI funds to MCL I. Introduction " on or before the Commencement Date, or if Landlord This is a breach of contract case. Appellant and Tenant shall agree, in installments as the [w]ork CenterPlace Properties, Ltd. (CenterPlace) appeals an progresse[d]." [3] adverse judgment following a bench trial in a suit for Section 10(c) of the lease required that MCL, within breach of a lease agreement that CenterPlace filed against thirty days of the lease date, submit to CenterPlace for Appellee Columbia Medical Center of Lewisville approval " a space plan which in outline form shows the Subsidiary, L.P. d/b/a Medical Center of Lewisville layout and configuration of the Leased Space." If (MCL) and Raymond Dunning.[1] The trial court's CenterPlace did not make any written comments or judgment ordered that CenterPlace take nothing against objections to the space plan within ten days, the lease MCL based upon findings that CenterPlace materially provided that CenterPlace was " deemed to have breached the parties' lease agreement and that approved" the plan. MCL submitted a space plan for an CenterPlace's breach excused MCL's failure to pay rent ambulatory surgical center to CenterPlace on December after November 1, 2007. The judgment further ordered 21, 2004. The parties disagreed at trial as to whether the that CenterPlace pay MCL $34,071.15 in statutory space plan provided by MCL complied with the lease's damages and a total of $319,700 in attorneys' fees and terms, but it is undisputed that CenterPlace did not costs. CenterPlace contends in four issues, which include comment about or object to the space plan within ten several subissues, that the evidence is legally and days. factually insufficient to support the findings and judgment and that the trial court erred by awarding Although it had provided a space plan to attorneys' fees to MCL and in failing to award attorneys' CenterPlace, MCL did not start finishing out the interior fees to of the premises. MCL presented evidence that it did not find adequate physician interest to support its plans for an ambulatory surgery center and that it proposed to move (Tex.App.-Houston [1st Dist.] May 20, 2010, pet. denied) forward immediately with alternate plans for a diagnostic (mem. op.) (op. on reh'g) (concluding defendant who imaging center and a pediatric urgent-care clinic. successfully defended against CenterPlace expressed its disapproval with MCL's alternate plans, particularly regarding the proposed Page 687 imaging center as possibly competing with an existing tenant, but Harpavat testified that it was very important to breach of contract claim was a " prevailing party" under him that MCL had represented to him that it was going to attorneys' fees provision of contract); see also Fitzgerald proceed immediately. The parties then disputed whether v. Schroeder Ventures II, LLC, 345 S.W.3d 624, 629 MCL had breached the lease or fraudulently induced (Tex.App.-San Antonio 2011, no pet.) (holding CenterPlace into the lease. The parties' dispute evolved defendants who successfully obtained jury findings of no into discussions about amending the lease. liability resulting in take-nothing judgment in suit relating to contract were each a " prevailing party" …………. entitled to attorneys' fees as provided by contract). We overrule the part of CenterPlace's fourth issue that asserts V. Attorneys' Fees that the trial court erred by awarding attorneys' fees and costs to MCL based on Section 27 of the lease and MCL's CenterPlace argues in its fourth issue that the trial status as the prevailing party in the litigation.[16] court erred by awarding MCL its attorneys' fees and costs and by concluding that CenterPlace was not entitled to C. MCL's Recovery Under Property Code recover its attorneys' fees and costs pursuant to Section Section 93.002 27 of the lease agreement. MCL's recovery of attorneys' fees under property A. Lease Language code section 93.002 is a different matter. The trial court awarded MCL $37,700 in attorneys' fees for Section 27 of the lease states: CenterPlace's alleged violation of section 93.002(c), but we held above that legally insufficient evidence supports In the event any litigation ensues with respect to the the trial court's determination that CenterPlace violated rights, duties and obligations of the parties under this property code section 93.002(c). Thus, MCL's attorneys' Lease, the unsuccessful party in any such action or fees can only be awarded pursuant to the contract and proceeding shall pay for all costs, expenses and cannot be awarded pursuant to section 93.002(g). See reasonable attorney's fees incurred by the prevailing party Tex. Prop.Code Ann. § 93.002(g)(2) (providing that in enforcing the covenants and agreements of this Lease. tenant may recover reasonable attorneys' fees and court The term " prevailing party, " as used herein, shall mean costs less any delinquent rents or other sums for which the party that obtains substantially the relief sought by tenant is liable to landlord if landlord or landlord's agent such party, whether by compromise, settlement or violates that section). MCL did not prevail on its claim judgment. Further, in the event Landlord retains legal under section 93.002(g), nor is it the " prevailing party" counsel to enforce any of Tenant's obligations hereunder, under the contract language on its counterclaim for Tenant shall reimburse Landlord for all reasonable legal damages based on violation of property code section fees incurred by Landlord. 93.002. We therefore sustain the part of CenterPlace's fourth issue that challenges the trial court's award of B. MCL as Prevailing Party attorneys' fees to MCL based on CenterPlace's alleged CenterPlace first argues that MCL will no longer violation of section 93.002(c). be the " prevailing party" as defined by the lease if D. CenterPlace's Claim for Attorneys' Fees CenterPlace succeeds on its first three issues because, in that event, MCL would not have obtained substantially CenterPlace argues in the final part of its fourth the relief sought by it in the judgment. We held above, issue that the trial court erred by failing to award it however, that legally and factually sufficient evidence recovery of its attorneys' fees because the last sentence of supports the trial court's determination that CenterPlace Section 27 mandates an award of reasonable attorneys' breached the lease by refusing to release the remaining TI fees to CenterPlace, even if it is not the prevailing party. funds to MCL. That breach excused MCL's further In other words, CenterPlace contends that MCL's payment of rent, a conclusion of law by the trial court of obligation to pay attorneys' fees to CenterPlace under which CenterPlace does not complain. Thus, MCL was Section 27 is not contingent upon CenterPlace's litigation and remains the " prevailing party" under Section 27 of success. We are not, however, persuaded that the lease because it obtained through the judgment CenterPlace's proposed interpretation of Section 27 is substantially the relief it sought in the lawsuit. See correct. Johnson v. Smith, No. 07-10-00017-CV, 2012 WL 140654, at *3 (Tex.App.-Amarillo Jan. 18, 2012, no pet.) The interpretation of an unambiguous contract is a (mem. op.); Silver Lion, Inc. v. Dolphin St., Inc., No. question of law that we review de novo. MCI Telecomms. 01-07-00370-CV, 2010 WL 2025749, at *18 Corp. v. Tex. Utils. Electric Co., 995 S.W.2d 647, 650-51 (Tex.1999). " Our primary concern in construing a absence of litigation and for the first two sentences to written contract is to ascertain the objective intent of the apply in the event of litigation is confirmed by the parties' parties as expressed in the contract." DaimlerChrysler use of " [f]urther" as an introduction to the last sentence Motors Co. v. Manuel, 362 S.W.3d 160, 178 and " [i]n the event any litigation ensues" as an (Tex.App.-Fort Worth 2012, no pet.) (citing Coker v. introduction to the first sentence. See generally Gen. Fin. Coker, 650 S.W.2d 391, 393 (Tex.1983); City of the Servs., Inc. v. Practice Place, Inc., 897 S.W.2d 516, 522 Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex.App.-Fort Worth 1995, no writ) (" The language of (Tex.App.-Fort Worth 2008, pet. dism'd)). " We examine a contract should be given its plain, ordinary, and and consider the entire document in an effort to commonly accepted meaning. Courts are required to harmonize and give effect to all provisions of the contract follow elemental rules of grammar for a reasonable so that none will be rendered meaningless." Id. (citing application of the legal rules of construction." (citations Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 omitted)). The use of " [f]urther" as an introduction to the S.W.3d 342, 345 (Tex.2006); Coker, 650 S.W.2d at 393; last sentence of Section 27 suggests that the last sentence City of the Colony, 272 S.W.3d at 722); see applies only to a circumstance different than the first two sentences of Section 27. And the introductory " [i]n the Page 688 event any litigation ensues" language in the first sentence of Section 27, particularly compared to the more general El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 language used in the last sentence of Section 27, suggests S.W.3d 802, 805 (Tex.2012). " When the provisions of a that the parties intended for only the first two sentences to contract appear to conflict, they should be harmonized if apply once the parties' dispute led to litigation, and the possible to reflect the intentions of the parties." Ogden v. first two sentences permit only the prevailing party in the Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983) litigation to recover its costs and attorneys' fees. MCL is (op. on reh'g) (citing Harris v. Rowe, 593 S.W.2d 303, the prevailing party and is thus the only party entitled to 306 (Tex.1979)). " Generally, the parties to a contract recover its costs and attorneys' fees. Had CenterPlace intend every clause to have some effect[,] and the Court prevailed in the litigation, then only CenterPlace would will not strike down any portion of the contract unless have been entitled to recover its costs and attorneys' fees. there is an irreconcilable conflict." Id. (citing Woods v. Contrary to CenterPlace's contention, the only reasonable Sims, 154 Tex. 59, 64, 273 S.W.2d 617, 620 (1954)). manner in which

The first two sentences of Section 27 provide for Page 689 the mandatory award of attorneys' fees to the prevailing party if litigation ensues relating to the lease. MCL, as to construe Section 27 to give effect to all three stated above, is the prevailing party entitled to recover its sentences is to interpret it to mean that CenterPlace costs and attorneys' fees under that portion of Section 27. would have been entitled to recover its attorneys' fees if But in arguing that it should also be awarded its attorneys' the parties' dispute had not resulted in litigation but that fees, CenterPlace relies on the last sentence of Section because " litigation ensue[d]" from the parties' dispute, 27, which states, " Further, in the event Landlord retains only MCL is permitted to recover its costs and attorneys' legal counsel to enforce any of Tenant's obligations fees as the prevailing party. We therefore hold that the hereunder, Tenant shall reimburse Landlord for all trial court did not err by refusing to award CenterPlace its reasonable legal fees incurred by Landlord." attorneys' fees under Section 27 of the lease. Accordingly, we overrule the remainder of CenterPlace's CenterPlace, even though it is not a prevailing fourth issue. party, argues that it is entitled to recover its attorneys' fees because the last sentence of Section 27 does not VI. Conclusion require that CenterPlace prevail, only that CenterPlace retain legal counsel to enforce MCL's lease obligations. Having sustained the first part of CenterPlace's first But CenterPlace is asking that we ignore the first two issue and part of its fourth issue, and having overruled the sentences of Section 27 and read the last sentence in remainder of CenterPlace's dispositive issues, we reverse isolation. This we cannot do because we must consider the portions of the trial court's judgment relating to the entire document in order to give each provision MCL's claim for statutory damages and attorneys' fees meaning if possible. See DaimlerChrysler Motors Co., under property code section 93.002. We render judgment 362 S.W.3d at 178. Giving effect to all parts of Section that MCL take nothing on its property code section 27, it seems clear that the parties intended that 93.002 claim. We affirm the remainder of the trial court's CenterPlace would be entitled to reimbursement of its judgment. reasonable legal fees if CenterPlace retained counsel to enforce MCL's obligations under the lease agreements so --------- long as litigation did not ensue. But if litigation ensued, only the prevailing party in the litigation would be Notes: entitled to recover its attorneys' fees. That the parties [1] Dunning was named as a defendant, individually, in intended the last sentence of Section 27 to apply in the the trial court, having been CEO of MCL at the time the lease was negotiated and executed. He retired in 2005. any manner except by judicial process. Willful exclusion The final judgment orders that CenterPlace take nothing shall mean preventing the tenant from entering into the both as to MCL and Dunning. Although he is named in premises with intent to deprive the tenant of such entry. the style of the case on appeal, CenterPlace has not ..." Id. at 175 (emphasis added) (quoting Tex.Rev.Civ. sought reversal of the take-nothing judgment as to him. Stat. Ann. art. 5236c (1973)).

[2] At the time of trial, construction had not begun on [13] The preceding sentence in the December 21, 2006 CenterPlace III. letter states, " Please provide details on how you would like the invoice process for this project to be handled." [3] The lease defined " Commencement Date" as the earlier of the date MCL opened for business in the leased [14] The December 29 and January 11 letters also space or 180 days from the date the lease was executed highlight the lack of an agreement between the parties as by both parties. to how the remaining TI funds would be released, whether by lump sum or by CenterPlace's direct payment [4] The $33,557.59 rent amount was later increased by of invoices. In the absence of such agreement, the trial 2% to $34,071.15 pursuant to section 2(c) of the lease. court could have reasonably concluded that CenterPlace was obligated to release to MCL the remaining TI funds [5] It is undisputed that CenterPlace had retained the key upon MCL's November and December requests. to the premises at all times and that MCL had previously gained access to the premises by contacting Harpavat and [15] Because we have overruled the fourth part of meeting him at the premises. CenterPlace's first issue, we need not address the second and third parts of CenterPlace's first issue. See [6] MCL paid a total of $1,017,149.48 in rent from the Tex.R.App. P. 47.1. We also need not address inception of the lease to November 1, 2007. CenterPlace's second or third issues because those issues are contingent upon CenterPlace's success on the entirety [7] The trial court granted MCL's motion for directed of its first issue. verdict as to CenterPlace's fraud claims. CenterPlace has not appealed that ruling. [16] CenterPlace does not argue that MCL would not be a prevailing party under the lease language in the event we [8] The parties agree that the three exceptions are overrule any part of CenterPlace's first three issues. inapplicable in this case. --------- [9] MCL contended, and the trial court found, that prior to the time MCL ceased paying rent in November 2007, CenterPlace notified MCL that its right of possession was terminated and that it would no longer be allowed to enter the premises, which notice— under the circumstances of this case— physically excluded MCL from the premises, thus " intentionally prevent[ing]" MCL from entering the premises and constituting both a breach of the lease agreements and a violation of property code section 93.002.

[10] The same question— what is meant by " intentionally preventing" — applies both to the trial court's finding that CenterPlace violated section 93.002 and to its separate finding that CenterPlace breached the lease and amended lease by " intentionally preventing" MCL from entering the leased premises.

[11] Two of the three cases address property code section 92.0081, which is the residential-lease version of section 93.002. The two statutes are identical in all material respects for the purposes of this case, and we thus look to interpretations of section 92.0081 to guide our analysis here. Compare Tex. Prop.Code Ann. § 92.0081(b) (West Supp.2012), with id. § 93.002(c).

[12] The predecessor statute stated in relevant part as follows: " It shall be unlawful for a landlord or his agent to willfully exclude a tenant from the tenant's premises in APPENDIX #18 EXCERPTED

Page 624 Family Trust. Wade P. Fitzgerald, a real estate broker, represented Pratt in the sales transaction. The attorney's 345 S.W.3d 624 (Tex.App.-San Antonio 2011) fees provision in the parties' earnest money contract provided: Wade P. FITZGERALD and Minot Tully Pratt, IV and Michael G. Panzarella, as Trustee of the MTPIV 16. ATTORNEY'S FEES: If Buyer, Seller, any broker, or Trust and Cinco Family Trust, Appellants, any escrow agent is a prevailing party in any legal proceeding brought under or with relation to this contract v. or this transaction, such party is entitled to recover from the non-prevailing parties all costs of such proceeding SCHROEDER VENTURES II, LLC, Appellee. and reasonable attorney's fees. This Paragraph 16 survives termination of this contract. No. 04-10-00371-CV.

Court of Appeals of Texas, Fourth District, San (emphasis added). The contract, which was a standard contract promulgated by the Texas Association of Antonio Realtors, did not define the term " prevailing party." April 6, 2011 Although not a signatory to the contract, Schroeder Ventures assumed the buyers' rights and obligations Page 625 under the contract by assignment.

[Copyrighted Material Omitted] After the sale closed, Schroeder Ventures sued Fitzgerald, Pratt, and Panzarella for fraud, fraudulent Page 626 misrepresentation, negligence, gross negligence, and negligent misrepresentation in the sales transaction. The Beth Watkins Squires, Law Office of Beth Squires, suit alleged Fitzgerald, Pratt, and Panzarella failed to Jeff Small, Law Office of Jeff Small, San Antonio, TX, disclose the existence of a sinkhole adjacent to the real for Appellant. property. Fitzgerald, Pratt, and Panzarella filed pleadings seeking to recover attorney's fees based on the parties' G. Thomas Coghlan, Langley & Banack, Inc., San earnest money contract, but sought no other affirmative Antonio, TX, for Appellee. relief. Sitting: CATHERINE STONE, Chief Justice, At trial, the jury found in favor of Fitzgerald, Pratt, KAREN ANGELINI, Justice and MARIALYN and Panzarella— and against Schroeder Ventures— on BARNARD, Justice. all of the liability questions. Specifically, the jury found Fitzgerald, Pratt, and Panzarella did not commit statutory OPINION fraud or fraud against Schroeder Ventures in the KAREN ANGELINI, Justice. transaction. The jury also found Fitzgerald, Pratt, and Panzarella did not make a negligent misrepresentation to The issue presented in this appeal is whether Schroeder Ventures in the transaction. Finally, the jury defendants who successfully defended claims arising found Fitzgerald, Pratt, and Panzarella were not negligent from a real estate transaction should have been awarded in the transaction. In fact, the attorney's fees and costs under the parties' earnest money contract. The trial court refused to award attorney's fees Page 627 and costs under the contract, relying on the Texas only party the jury found to be negligent in the Supreme Court's decision in Intercontinental Group transaction was Schroeder Ventures. P'ship v. KB Home Lone Star, L.P., 295 S.W.3d 650 (Tex.2009). We conclude Intercontinental is not The jury also made findings as to reasonable and applicable here, and the defendants were entitled to necessary attorney's fees. The jury found the reasonable attorney's fees and costs under the plain language of the and necessary fees for Fitzgerald's attorneys to be parties' contract. We, therefore, reverse and render $104,063.00 for trial and $25,000.00 for a successful judgment awarding attorney's fees and costs. appeal to the court of appeals. The jury found the reasonable and necessary fees for Pratt's and Panzarella's BACKGROUND attorneys to be $195,688.00 for trial and $25,000.00 for a Schroeder Ventures II, LLC, purchased a tract of successful appeal to the court of appeals. The jury also land from Minot Tully Pratt, IV, and Michael G. found Pratt and Panzarella incurred $5,100.00 in costs. Panzarella, as Trustee of the MTPIV Trust and Cinco Fitzgerald, Pratt, and Panzarella moved for entry of judgment in accordance with the jury's verdict. In prevailing party analysis provided in Intercontinental, response, Schroeder Ventures argued Fitzgerald, Pratt, Fitzgerald, Pratt, and Panzarella were not prevailing and Panzarella were not entitled to attorney's fees based parties, on the Texas Supreme Court's analysis of the term " prevailing party" in Intercontinental. Schroeder also Page 628 argued the attorney's fees provision in the contract did not apply because Schroeder's claims were not contractual in and therefore, the trial court properly refused to award nature, and the attorney's fees provision in the contract them attorney's fees. covered only contractual claims.

The trial court concluded Intercontinental precluded recovery of attorney's fees by Fitzgerald, Pratt, and Panzarella, and refused to render judgment in accordance with the jury's findings on attorney's fees. Instead, the trial court rendered judgment denying Fitzgerald, Pratt, and Panzarella recovery on their counterclaim for attorney's fees, and ordered all attorney's fees and costs to be paid by the party who incurred them. The trial court rendered a take-nothing judgment in accordance with the jury's liability findings.

Thereafter, Fitzgerald, Pratt, and Panzarella brought this appeal to challenge the trial court's denial of attorney's fees and costs under the contract.

STANDARD OF REVIEW

Generally, a trial court's award of attorney's fees is reviewed for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). The trial court has discretion to fix the amount of attorney's fees, but it does not have discretion to deny attorney's fees entirely if they are proper. Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex.App.-Corpus Christi 2007, no pet.); World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 683 (Tex.App.-Fort Worth 1998, pet. denied).

Texas follows the " American Rule" which prohibits awards of attorney's fees unless specifically authorized by statute or by a contract between the parties. MBM Fin. Corp. v. The Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex.2009). An issue concerning the availability of attorney's fees under a statute or a contract presents a question of law that appellate courts review de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999); In re Lesikar, 285 S.W.3d 577, 583 (Tex.App.-Houston [14th Dist.] 2009, orig. proceeding). Therefore, we apply the de novo standard of review in this case.

DOES INTERCONTINENTAL APPLY?

Fitzgerald, Pratt, and Panzarella argue that Intercontinental did not preclude an award of attorney's fees in this case, and that under the plain language of the parties' earnest money contract, they were entitled to recover their attorney's fees from Schroeder Ventures because they successfully defended against all of its claims. Schroeder Ventures counters that under the APPENDIX #19 EXCERPTED

Page 123 Appellee relies upon the following quotation from 19 C.J. p. 97, § 225: "Statutes limiting in general terms 120 S.W.2d 123 (Tex.Civ.App. 1938) the time within which actions may be brought do not ordinarily apply to divorce suits, but in the absence of FRANZETTI statutory limitation the equitable doctrine of estoppel is usually applied." v. Three cases are cited as supporting the text: FRANZETTI. Mosely v. Mosely, 67 Ga. 92; Tufts v. Tufts, 8 Utah 142, 30 P. 309, 16 L.R.A. 482; Yeager v. Yeager, 19 No. 8715. Pa.Dist.R. 726. The case from a district court of Court of Civil Appeals of Texas, Austin. Pennsylvania is not available, and we have not examined it. July 20, 1938 The Georgia case was predicated upon cruel Rehearing Denied September 21, 1938. treatment, abandonment for over twenty years, and adultery, all on the part of the husband. The plea of Appeal from District Court, Ninety-Eighth District, limitation was predicated upon the ground that divorce Travis County; J. D. Moore, Judge. was a statutory action as to which the statutes of limitation applied. Suit for divorce by Louis Franzetti against Gertrude Franzetti. Judgment for plaintiff, and defendant appeals. It is to be observed that abandonment was one of the grounds alleged. Even in states having specific Reversed and remanded. statutes expressly applicable to divorce, abandonment is held to be a continuing offense as to which limitation Page 124 does not apply. See Wickliff v. Wickliff, 191 Ark. 411, 86 S.W.2d 553. Cofer & Cofer, of Austin, for appellant. In the Utah case, after alleged acts of cruelty on the Judge Ocie Speer and Wright Stubbs, both of part of the husband, the spouses separated and obtained a Austin, for appellee. "church divorce," which they thought to be legal. The McCLENDON, Chief Justice. wife (plaintiff) married another man, but ceased to live with him when she discovered the "church divorce" was Appeal from a judgment upon a special issue not legal. The husband had married several times since verdict, granting a divorce to Louis Franzetti (appellee) the "church divorce." from his wife, Gertrude Franzetti (appellant). In both of these cases there were elements which The appeal presents two important questions which would have prevented running of the statute. However, it appear to be of first impression in this state: is clear that the court in each case intended to hold that statutes of limitation in general terms are not applicable (1) Whether R. C. S. Art. 5529, barring all actions to actions for divorce. "for which no limitation is otherwise prescribed" in four years, is applicable to actions for divorce; and (2) A careful reading of the Georgia case leads us to the whether in an action for divorce by the husband on the conclusion that the holding was rested largely upon the ground of cruel treatment a single act of adultery on the fact that divorce, though the grounds therefor may be part of the husband constitutes a complete defense to his prescribed by statute, is essentially an equitable action, suit. and is governed by equitable principles derived largely from the English common and ecclesiastical law, and As to the plea of limitation: The suit was predicated therefore general statutes applicable to actions at law will upon a series of acts of cruel treatment, culminating in a not be held to apply to them, unless there is some separation of the spouses June 26, 1930. The instant suit expressed legislative intent to that end. We quote from was brought November 2, 1934. The plea of limitation the opinion: "In other states, where common and was therefore good as to the case presented by the ecclesiastical law prevailed, for this cause of action pleadings, if the article cited applies to actions for special statutes in bar were enacted, and until the divorce. law-making power here so enacts we do not feel authorized by implication to apply any limitation now in Page 125 force to this character of suit." The Utah holding is predicated upon the Georgia Conrads v. Kasch, Tex.Civ.App., 26 S.W.2d 732, error holding. refused 119 Tex. 449, 31 S.W.2d 630; 28 Tex.Jur. p. 89, § 15. In like manner, our statutes of limitations in suits While in Kittle v. Kittle, 86 W.Va. 46, 102 S.E. for land are held to apply to equitable as well as legal 799, the Supreme Court of West Virginia reached the titles. New York & T. Land Co. v. Hyland, 8 same conclusion, the holding there was rested upon the Tex.Civ.App. 601, 28 S.W. 206, error refused. proposition that "suits for divorce being cognizable only in equity, are controlled solely by principles of equity, Where the wrongful act complained of is continuing and the general statute of limitations does not apply." in its nature, as is the case in cloud upon title, limitation manifestly does not apply. State M. Corp. v. Ludwig, On the other hand, it was held by the Supreme 121 Tex. 268, 48 S.W.2d 950; Pannell v. Askew, Court of North Carolina in Garris v. Garris, 188 N.C. Tex.Civ.App., 143 S.W. 364; Slider v. House, 321, 124 S.E. 314, that a statute in general terms, barring Tex.Civ.App., 271 S.W. 644; White Point Oil & Gas Co. all actions, not otherwise provided for, in ten years was v. Dunn, Tex.Civ.App., 18 S.W.2d 267; Bookhout v. applicable to divorce, although there was no statutory McGeorge, Tex.Civ.App., 65 S.W.2d 512. provision expressly applicable to divorce. But for its stated exceptions, Art. 5529 is If the adjudications of other jurisdictions were all-inclusive in its wording. It reads: "Every action other numerous and uniform, we might be reluctant not to than for the recovery of real estate, for which no follow them. But the question at issue seems only to have limitation is otherwise prescribed, shall be brought within reached the courts of last resort in three other states, and four years next after the right to bring the same shall have the decisions in these are in conflict. There is also another accrued and not afterward." reason why, in a matter of this sort, decisions of the common law states should have no impelling force with In view of the above considerations, we hold that us, namely, the fact that the distinctions between law and where the suit for divorce is based upon acts complete in equity have never existed in this state, as in those states. themselves and not of a continuing nature, the four years True, "Equitable principles are a part of the law of statute of limitations applies, as in other cases. Texas"; but There is evidence in the record to the effect that "Every lawyer is informed as to the peculiar appellant continued her alleged acts of cruelty after the distinctions between the English courts of law and courts separation in June, 1930. For which reason judgment of chancery, and the differences between their systems of should not be rendered here. law and remedies and procedure. Every Texas lawyer is aware also that these distinctions and differences were Upon the second question: While the evidence was unknown to the Spanish civil law which prevailed in circumstantial, and came from appellant and her mother early times, and that they are of little if any importance alone, it was clearly sufficient to support a finding that under the system which has come into being in this state. appellee was guilty of a single act of adultery after the In truth, they seem to appertain to the realm of phrases, separation. rather than to that of facts. Appellant tendered, and the court refused, the " 'The distinctions between law and equity have following special issue: never obtained in Texas. They were not recognized in the earliest times when the civil law of Mexico was "Do you find from a preponderance of the evidence administered. They were unknown to the Constitution of that the plaintiff since he left defendant, if he did leave Coahuila and Texas. After independence the Constitution her, has been guilty of adultery with another woman? of the republic ignored them. Each succeeding Answer 'Yes' or 'No. Constitution of the state has expressly denied their "The term adultery as used in this charge means Page 126 carnal intercourse between a married person and a single person of the opposite sex." existence. At most, the distinction in this state is a very narrow one. In some aspects it may be said to be more Appellee contends that to constitute a defense to the one of form than of substance.' " 17 Tex.Jur. pp. 4, 5. The husband's suit for divorce on the ground of cruel quotation is from City of Dallas v. McElroy, treatment the adultery of the husband must be such as Tex.Civ.App., 254 S.W. 599, error dismissed. would entitle the wife to a divorce on that ground, that is that "he shall have abandoned her and lived in adultery The right of trial by jury applies here without with another woman." R.C.S. Art. 4629, Subd. 3. We do distinction, to both law and equity cases, and so far as we not concur in this contention. have been able to discover our limitation laws apply alike in equity as at law. Huggins v. Johnston, Tex.Civ.App., 3 It is conceded that adultery is generally held to be a S.W.2d 937, affirmed 120 Tex. 21, 35 S.W.2d 688; complete defense to an action for divorce upon any ground including that of cruel treatment. 15 Tex.Jur. p. 493, § 42; 9 R.C.L. p. 390, § 183.

This rule is not predicated upon the ground that the guilty plaintiff has committed an act constituting a statutory ground for divorce in favor of defendant. The basis is thus stated in 9 R.C.L. p. 387, § 180: "It is a general principle of the common law that whoever seeks redress for the violation of a contract resting upon mutual and dependent covenants, to obtain success must himself have performed the obligations on his part. Something analogous to this principle is found in the doctrine of recrimination, or compensatio criminum, which was originally borrowed from the canon law, by which the defendant in divorce proceedings is permitted to contest the plaintiff's application on the ground of his own violation of the marriage contract--to set off, to use the language of the cases, the equal guilt of the plaintiff. The doctrine of recrimination by the defendant as a defense in bar of the plaintiff's relief has become fully established in this country; and though misconduct of the plaintiff, such as adultery, occurs after the commencement of his or her suit, it is as fully effective to bar the right to a divorce therein, as if it had occurred previous to the commencement of the suit."

We have a statute (Art. 4630) which expressly bars a suit for divorce predicated upon adultery, where the plaintiff, whether

Page 127

the husband or the wife, is shown likewise to be guilty of adultery. APPENDIX #20 EXCERPTED

Page 124 Page 130

930 S.W.2d 124 (Tex.App. —Tyler 1996) In its first cross-point, SBMA claims that it, as the prevailing party in the litigation, was entitled to recover G. RICHARD GOINS CONSTRUCTION court costs and attorney's fees from GCC pursuant to the COMPANY, INC., Appellant, terms of the parties' agreement. We agree.

v. As noted above, SBMA sold lot 75 in the Pinnacle Club to GCC. Paragraph 16 of the earnest money contract S.B. McLAUGHLIN ASSOCIATES,INC., Appellee. provided in relevant part, "[a]ny signatory to this contract, ... who is the prevailing party in any legal No. 12-94-00361-CV. proceeding brought under or with relation to this contract or transaction shall be additionally entitled to recover Court of Appeals of Texas, Twelfth District, Tyler court costs and reasonable attorney fees from the May 31, 1996 non-prevailing party." At trial, the jury found that SBMA incurred $50,000 in reasonable attorney's fees in Page 125 defending against GCC's claims.

Rehearing Overruled Aug. 9, 1996. As a general rule, a prevailing party is not entitled to recover his attorney's fees from his adversary. Turner v. Page 126 Turner, 385 S.W.2d 230, 233 (Tex.1964). However, parties to a contract may provide by agreement that the T. Wesley Holmes, Donovan Campbell, Jr., Dallas, prevailing party is entitled to recover attorney's fees. for appellant. Weng Enterprises v. Embassy World Travel, 837 S.W.2d 217, 222-23 (Tex.App.--Houston [1st Dist.] 1992, no Luke Madole, Dallas, for appellee. writ). The "prevailing party" is the party who successfully defends against the action on the main issue. Id. at 223. Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ. In the present case, GCC brought a DTPA action against SBMA for SBMA's actions in the sale and HOLCOMB, Justice. development of the Pinnacle Club. However, SBMA This is an appeal from the trial court's judgment that prevailed in the litigation by successfully asserting the Appellant, G. Richard Goins Construction Co., Inc. defense of limitations. The trial court rendered a ("GCC" or "Appellant"), take nothing from S.B. take-nothing judgment against GCC. Thus, by the parties' McLaughlin Associates, Inc. ("SBMA"). We will affirm agreement, SBMA was entitled to attorney's fees as the in part, modify in part, and reverse and render in part. prevailing party. At trial, the jury found that SBMA incurred reasonable attorney's fees in the amount of SBMA is the owner and developer of the Pinnacle $50,000 in connection with its defense of claims asserted Club, a planned residential community located in by GCC. We therefore sustain SBMA's first cross-point Henderson County, Texas. On January 13, 1986, SBMA and hold that the trial court erred in denying SBMA sold Lot 75 in the Pinnacle Club to GCC. A dispute arose recovery of its attorney's fees. between SBMA and GCC regarding SBMA's obligations to develop the Pinnacle Club. On September 19, 1989, In its second cross-point of error, SBMA alleges that GCC brought suit against SBMA. [1] In its petition, GCC the trial court erred in extending an agreed temporary alleged that SBMA violated the Texas Deceptive Trade injunction past entry of final judgment. We agree. Practices Act [2] ("DTPA"). SBMA responded, asserting, The trial court's final judgment ordered in relevant inter alia, the affirmative defenses of limitations and part: waiver. That the Agreed Order made in open court herein on At trial, the jury found that SBMA knowingly August 25, 1992 and further memorialized in an Agreed violated the DTPA, and that such violation was the Order signed herein on March 10, 1993 are [sic] set aside producing cause of $174,000 in actual damages to GCC. and held for naught, same expiring upon this judgment However, the jury also found that GCC discovered, or becoming final. should have discovered, SBMA's DTPA violations on July 30, 1986. Further, the jury found that The purpose of a temporary injunction is to preserve the status quo of the subject matter of the litigation …………. pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). A temporary injunction remains in force only until the court renders a final judgment. Independent American Real Estate, Inc. v. Davis, 735 S.W.2d 256, 261 (Tex.App.--Dallas 1987, no writ). Therefore, the temporary injunction expires upon entry of the final judgment. Id.

In the instant case, the trial court was without authority to extend the agreed temporary injunction past entry of judgment. Once the trial court rendered judgment, the temporary injunction should have terminated. It was error to extend the injunction until the judgment became final. Therefore, we sustain SBMA's second cross-point.

We reverse the judgment of the trial court only to the extent that it failed to award SBMA attorney's fees, and therefore, we render judgment that SBMA recover $50,000 in attorney's fees from GCC. Additionally, we reform the trial court's judgment to reflect that "the Agreed Order made in open court on August 25, 1992 and memorialized in an Agreed Order on March 10, 1993 is set aside, same expiring upon entry of final judgment in this cause." The remainder of the trial court's judgment is affirmed.

---------

Notes:

[1] Other parties plaintiff participated in the trial, but only GCC appeals the judgment. GCC and the other plaintiffs also sued SBMA's principals. However, GCC only appeals the judgment with regard to SBMA.

[2] TEX. BUS. & COM.CODE ANN. § 17.42 et seq. (Vernon 1987). Although the plaintiffs below asserted numerous theories of liability, GCC only appeals the trial court's judgment relating to its DTPA causes of action.

--------- APPENDIX #21 EXCERPTED

Page 173 payments and offsets have been allowed." Defendants answered with a general denial. At trial before the court 851 S.W.2d 173 (Tex. 1992) without a jury, Charter's sole witness established the amount due on the note after foreclosure, and Charter Carolyn GREATHOUSE, Independent Executrix of rested its case. Greathouse then moved for judgment on the Estate of the grounds that Charter had failed to plead or prove an element of its cause of action, namely, a commercially Clyde R. Greathouse, Deceased, Petitioner, reasonable disposition of the pledged collateral. Charter v. responded that it had satisfied its pleading

CHARTER NATIONAL BANK-SOUTHWEST, Page 174 Respondent. obligation by alleging generally the performance of all No. D-0296. conditions precedent, and that it was not required to prove the commercial reasonableness of the foreclosure Supreme Court of Texas. absent a specific denial by Greathouse. Charter relied upon Rule 54, TEX.R.CIV.P., which states: July 1, 1992 In pleading the performance or occurrence of Rehearing Overruled Dec. 22, 1992. conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been Supplemental Opinion on Rehearing Dec. 22, 1992. performed or have occurred. When such performances or occurrences have been so plead, the party so pleading Gary L. McConnell, Angleton, for petitioner. same shall be required to prove only such of them as are specifically denied by the opposite party. Larry Huelbig, Audrey Seldon, Houston, for respondent. Charter also requested a continuance to procure evidence of the commercial reasonableness of the OPINION foreclosure sale. The trial court denied both Charter's request for a continuance and Greathouse's motion for HECHT, Justice. judgment, and Greathouse rested its case without offering Section 9.504 of the Uniform Commercial Code, any evidence. After taking the case under submission, the TEX.BUS. & COM.CODE § 9.504, requires that trial court rendered judgment for Charter in the amount of collateral must be disposed of in a commercially $252,858.28. reasonable manner. The Code, however, does not allocate Only Greathouse appealed. [1] The court of appeals the burden of pleading and proving whether this affirmed, holding "that the burden of specifically requirement has been met in an action by a creditor pleading a lack of commercial reasonableness or notice in against a debtor for the deficiency due after disposition of a deficiency action under section 9.504 ... rests with the the collateral. We granted writ of error to resolve a split debtor." 795 S.W.2d 1, 3. Once the debtor has among Texas courts of appeals over this procedural issue. specifically raised the issue, the court held, the burden of Forrest Allen & Associates, Inc. defaulted on a note proof is upon the creditor. The court reasoned: "Such an payable to Charter National Bank-Southwest, guaranteed approach informs a creditor which areas (if any) are by Clyde R. Greathouse, and secured by an assignment of disputed and which items of proof must be produced; it insurance expirations, commissions, accounts receivable, does not allow a creditor to avoid proving its case.... furniture and fixtures. Charter took the pledged collateral Without indication of a debtor's objections, a creditor is and sold it for $100,000, leaving a principal balance due prejudiced in the preparation of its case." Id. at 2. on the note of $151,014.95. Charter then sued Forrest On the procedural issue before us, the Uniform Allen and Greathouse for the deficiency, interest and Commercial Code has not achieved its purposes of attorney fees. Greathouse died during the pendency of the simplification and uniformity of commercial law. Texas suit, and the independent executrix of his estate was courts are severely split on the subject. Many of them substituted as a defendant. indicate that the creditor must plead and prove a Charter did not plead that it had disposed of the commercially reasonable disposition of the collateral, [2] collateral in a commercially reasonable manner, but it did while others have treated commercial unreasonableness plead generally that: "All conditions precedent have been as a defense which the debtor must raise in order to shift performed or have occurred. All just and lawful credits, the burden of proof to the creditor. [3] Our sister states are equally divided. Some states place the burden on the creditor in a deficiency suit to both plead and prove compliance with the notice and commercial reasonableness requirements of section 9.504. [4] In other states, the debtor raises the issue in pleadings as a

Page 175

counterclaim or a defense in order to put the creditor to proof on the matters so challenged, and the secured creditor then bears the burden of proving compliance. [5] A few states treat the issue as an affirmative defense. [6] APPENDIX #22 Page 824 & Knight's petition states:

756 S.W.2d 824 (Tex.App. —Dallas 1988) All conditions precedent with respect to Plaintiff's claims against Defendant herein have been performed or have Roy W. HILL, Appellant, occurred.

v. Texas Rule of Civil Procedure 54 states:

THOMPSON & KNIGHT, Appellee. In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver No. 05-87-01276-CV. generally that all conditions precedent have been performed or Court of Appeals of Texas, Fifth District, Dallas Page 826 August 23, 1988 have occurred. When such performances or occurrences Page 825 have been so plead, the party so pleading same shall be Roy W. Hill, Fairfield, for appellant. required to prove only such of them as are specifically denied by the opposite party. Madeleine B. Johnson, Dallas, for appellee. Hill pleaded: Before STEPHENS, HECHT and BAKER, JJ. Defendant denies that all condition precedent to the HECHT, Justice. satisfaction of the claim of Thompson & Knight have been satisfied and demand [sic] strict proof with respect Appellee Thompson & Knight sued appellant Roy to all conditions precedent. W. Hill on a promissory note and obtained a summary judgment for $28,955.77 plus interest and costs. We This denial does not specifically deny, and hence overrule Hill's three points of error, affirm the judgment under rule 54 does not cumber Thompson & Knight with of the trial court and, because we determine that Hill has proving, the performance or occurrence of any condition taken this appeal for delay and without sufficient cause, precedent to its recovery. Hill's second point of error is award Thompson & Knight additional damages of overruled. $1,500.00. In his third point of error Hill contends that fact In his first point of error Hill contends that summary issues as to affirmative defenses raised by his judgment is improper because Thompson & Knight did controverting affidavit preclude summary judgment. not establish that it is the present owner, holder and Assuming that a controverting affidavit is a proper possessor of the note. The affidavit of a partner of vehicle for raising issues in response to a motion for Thompson & Knight filed in support of its motion states: summary judgment, [1] Hill's affidavit fails to do so. Hill appears to argue that his affidavit raises issues as to lack Thompson & Knight is in possession of the original or failure of consideration, waiver and estoppel. On the of a Note, a true and correct copy of which is attached contrary, the affidavit reflects that Hill received an hereto and made a part hereof. The Note has never been assignment in consideration for the note and says nothing assigned, transferred, pledged or delivered by Thompson about waiver or estoppel. Hill's third point of error is & Knight to any other person or entity. overruled.

A copy of the note is attached to the affidavit. This This appeal has absolutely no merit. In the eight evidence refutes Hill's contention. See Taylor v. Fred pages of argument in his brief Hill cites 107 cases, almost Clark Felt Co., 567 S.W.2d 863, 866 none of which have anything to do with the issues raised. (Tex.Civ.App.--Houston [14th Dist.] 1978, writ ref'd This appeal is a complete waste of the parties', counsel's n.r.e.); Lazidis v. Goidl, 564 S.W.2d 453, 455 and this court's time and resources. There is no reason for (Tex.Civ.App.--Dallas 1978, no writ). Hill's first point of it but delay. This is precisely the sort of appeal for which error is overruled. damages should be assessed against appellant under Texas Rule of Appellate Procedure 84. Rule 84 In his second point of error Hill contends that empowers this court to award damages against Hill up to summary judgment is improper because Thompson & ten percent of the trial court's judgment, or some $3,000. Knight did not establish that it has performed all Under this rule, we award Thompson & Knight $1,500.00 conditions precedent to recovery on the note. Thompson damages against Hill, in addition to all damages awarded by the trial court.

The judgment of the trial court is affirmed.

[1] See Engel v. Pettit, 713 S.W.2d 770, 772 (Tex.App.--Houston [14th Dist.] 1986, no writ); Rosas v. Bursey, 724 S.W.2d 402, 408 (Tex.App.--Fort Worth 1986, no writ). We express no view on this issue.

--------- APPENDIX #23 LARRY DALE SMITH, Appellant 1

1 This suit was dismissed before any defendant was served or an- swered. Therefore, there are no appellees.

NO. 01-05-00491-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

2007 Tex. App. LEXIS 1153

February 15, 2007, Opinion Issued

PRIOR HISTORY: [*1] On Appeal from the 12th District Court. Walker County, Texas. Trial Court Cause No. 22,926.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant, inmate, challenged the order of the 12th District Court of Walker County, Texas, dismissing his lawsuit for failure to comply with Tex. Civ. Prac. & Rem. Code Ann. ch. 14 (2002).

OVERVIEW: In May 2004, the inmate filed a lawsuit, cause number 22,656, in the 278th District Court of Walker County, seeking damages and injunctive relief against prison officials. The 278th District Court dismissed the inmate's suit as frivolous and for failing to comply with Tex. Civ. Prac. & Rem. Code Ann. ch. 14. In December 2004, the inmate filed the instant lawsuit, cause number 22,926, a petition for a bill of review, attacking the judgment in cause number 22,656. The lawsuit was filed in Walker County and assigned to the 12th District Court. The appellate court ruled that the 12th District Court lacked jurisdiction over the inmate's bill of review attacking a judgment from a different district court, thus, the 12th District Court's order was void and the cause should have been dismissed for lack of jurisdiction. The inmate's original lawsuit, number 22,656, was filed in and dismissed by the 278th District Court. The current lawsuit, number 22,926, was filed in and dismissed by the 12th District Court. The only court that had jurisdiction over the inmate's bill of review was the court that rendered the judgment attacked by the bill of review, the 278th District Court.

OUTCOME: The order was vacated and the case was dismissed.

CORE TERMS: lawsuit, bill of review, grievance, inmate, vacate, failure to comply, declaration, attacking, advisory, answered, void

LexisNexis(R) Headnotes

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview [HN1] Lack of subject-matter jurisdiction is fundamental error that the appellate court may properly raise sua sponte. A court's lack of jurisdiction over the subject matter renders a judgment void and requires dismissal of the cause. 1 2007 Tex. App. LEXIS 1153, *

Civil Procedure > Judgments > Relief From Judgment > Bills of Review [HN2] A bill of review is an independent legal proceeding brought to set aside a judgment that is no longer appealable. A bill of review is a direct attack on a judgment, and as such, only the court that rendered the original judgment has jurisdiction over a bill of review.

JUDGES: Elsa Alcala, Justice. Panel consists of Justices Taft, Alcala, and Hanks.

OPINION BY: Elsa Alcala

OPINION

MEMORANDUM OPINION Appellant, Larry Dale Smith, appeals an order dismissing his lawsuit for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (Vernon 2002). In his second issue, Smith contends that the trial court erred by dismissing this current lawsuit because the provisions of Chapter 14 of the Texas Civil Practice and Remedies Code concerning inmate litigation do not apply to this lawsuit, in which Smith seeks a bill of review to challenge the dismissal of an earlier lawsuit. In his first, third, and fourth issues, Smith challenges the propriety of the trial court's dismissal of the first lawsuit. We conclude that the trial court lacked jurisdiction over this case. We therefore vacate the trial court's order and dismiss this cause.

Background Smith was an inmate at the Texas Department of Criminal Justice's Ellis unit in Huntsville. In May 2004, Smith filed [*2] a lawsuit, cause number 22,656, in the 278th District Court of Walker Coun- ty. The suit was against Ellis unit officials seeking damages and injunctive relief.2 In July 2004, the 278th District Court dismissed Smith's suit as frivolous and for failing to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. In December 2004, Smith filed the instant law- suit, cause number 22,926, a petition for a bill of review, attacking the judgment in cause number 22,656. This lawsuit was filed in Walker County and assigned to the 12th District Court.

2 The record before us does not contain the pleadings from cause number 22,656. This infor- mation is taken from Smith's petition in the instant case and the declaration of previous fil- ings, which he filed with his petition in this case.

The 12th District Court requested the Attorney General file an amicus curiae advisory with the court regarding whether Smith had complied with the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code. The Attorney [*3] General's advisory stated that Smith had failed to comply with section 14.005 of the Civil Practice and Remedies Code.3 The 12th District Court dis- missed this suit before any defendant was served or answered. The court stated in the order that Smith's suit was being dismissed "for failure to comply with the statutory requirements of Chapter 14 of the Texas Civil Practice and Remedies Code." Smith appealed. No defendant ever answered this suit; thus, this Court did not receive an appellee's brief in this cause.

3 Section 14.005, entitled "Grievance System Decision; Exhaustion of Administrative Reme- dies," provides

2 2007 Tex. App. LEXIS 1153, * (a) An inmate who files a claim that is subject to the grievance system estab- lished under Section 501.008, Government Code, shall file with the court:

(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and (2) a copy of the written decision from the grievance system.

(b) A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the griev- ance system. (c) If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to ex- ceed 180 days to permit completion of the grievance system procedure.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 (Vernon 2002).

[*4] Jurisdiction [HN1] Lack of subject-matter jurisdiction is fundamental error that this Court may properly raise sua sponte. Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.--Houston [1st Dist.] 2004, no pet.)(citing Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.--Houston [1st Dist.] 2000, no pet.)). A court's lack of jurisdiction over the subject matter ren- ders a judgment void and requires dismissal of the cause. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485-86, 38 Tex. Sup. Ct. J. 784 (Tex. 1995); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446, 36 Tex. Sup. Ct. J. 607 (Tex. 1993); Saudi, 176 S.W.3d at 113. [HN2] "A bill of review is an independent legal proceeding brought to set aside a judgment that is no longer appealable." Richards v. Comm'n for Lawyer Discipline, 81 S.W.3d 506, 507 (Tex. App.--Houston [1st Dist.] 2002, no pet.)(citing Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27, 43 Tex. Sup. Ct. J. 140 (Tex. 1999)). A bill of review is a direct attack on a judgment, and as such, only the court that rendered the original judgment has jurisdiction over a bill of review. [*5] Id. Here, Smith's original lawsuit, number 22,656, was filed in and dismissed by the 278th District Court. The current lawsuit, number 22,926, was filed in and dismissed by the 12th District Court. However, the only court that had jurisdiction over Smith's bill of review is the court that rendered the judgment attacked by the bill of review--in this case, the 278th District Court. See id. Because the 12th District Court lacked jurisdiction over Smith's bill of review attacking a judgment from a different court, its order is void and the cause should have been dismissed for lack of jurisdiction. See Owens, 907 S.W.2d at 485-86; Tex. Ass'n of Bus., 852 S.W.2d at 446; Saudi, 176 S.W.3d at 113. Accordingly, we vacate the order of the 12th District Court and dismiss this cause.

Conclusion We vacate the trial court's order and dismiss this cause. Elsa Alcala, Justice Panel consists of Justices Taft, Alcala, and Hanks. 3 APPENDIX #24 EXCERPTED

Page 650 fees can be awarded." [3] We reverse the court of appeals' judgment and render a take-nothing judgment. 295 S.W.3d 650 (Tex. 2009) I. Background 52 Tex. S.Ct. J. 1204 KB Home Lone Star L.P. (KB Home), a national INTERCONTINENTAL GROUP PARTNERSHIP, homebuilder, contracted with Intercontinental Group Petitioner, Partnership (Intercontinental), a real estate developer, to develop lots in a McAllen subdivision known as Santa v. Clara and sell them to KB Home. The contract provided:

KB HOME LONE STAR L.P., Respondent. Attorney's fees. If either party named herein brings an action to enforce the terms of this Contract or to declare No. 07-0815. rights hereunder, the prevailing party in any such action, on trial or appeal, shall be entitled to his reasonable Supreme Court of Texas. attorney's fees to be paid by losing party as fixed by the August 28, 2009 court.

Argued March 12, 2009. " Prevailing party" was not defined.

Page 651 Intercontinental began selling Santa Clara lots to other buyers, and KB Home sued for breach of contract Edward C. Snyder III, Jesse R. Castillo, Castillo (among other theories) and sought specific performance, Snyder, P.C., San Antonio, TX, for Petitioner. damages, injunctive relief, and attorney's fees.[4] KB Home did not seek a declaratory judgment under the Diann M. Bartek, Renee Forinash McElhaney, contract. At trial, KB Home sought only one type of Natalie L. Hall, Cox Smith Matthews Incorporated, San actual damages: lost profits due to Intercontinental's Antonio, TX, for Respondent. alleged breach. Intercontinental counterclaimed, asserting that KB Home failed to honor an oral agreement to buy Justice WILLETT delivered the opinion of the Santa Clara at a below-market price in exchange for an Court, in which Chief Justice JEFFERSON, Justice exclusive partner arrangement for future property HECHT, Justice GREEN, and Justice JOHNSON joined. acquisitions.

OPINION The jury found that Intercontinental breached the written contract but answered " 0" on damages, though it WILLETT Justice did award KB Home $66,000 in attorney's fees.[5] The jury rejected Intercontinental's oral-agreement claim and This breach-of-contract case poses a consequently did not answer the conditional question straightforward question: What does " prevailing party" about Intercontinental's attorney's fees related to that mean? We have construed this phrase in a discretionary claim. Both parties moved for judgment, claiming fee- attorney's fees as the " prevailing party." The trial court Page 652 sided with KB Home and signed a judgment in

award statute [1] but not in a mandatory fee-award Page 653 contract. Specifically, when a contract mandates its favor for $66,000, concluding that KB Home " should attorney's fees to a " prevailing party," a term undefined recover its damages against [Intercontinental] as found by in the contract, has a party " prevailed" if the jury finds the jury...." The court of appeals affirmed.[6] the other side violated the contract but awards no money damages? We agree with the United States Supreme ………… Court, which holds that to prevail, a claimant must obtain actual and meaningful relief, something that materially B. Attorney's Fees Under the Contract alters the parties' legal relationship.[2] That is, a plaintiff must prove compensable injury and secure an enforceable The contract leaves " prevailing party" undefined, judgment in the form of damages or equitable relief. The so we presume the parties intended the term's ordinary plaintiff here secured neither. We thus reach the same meaning.[10] We have found the United States Supreme conclusion as in another breach-of-contract case decided Court's analysis helpful in this area.[11] In Hewitt v. today: " a client must gain something before attorney's Helms, the Court was faced with the question of whether a plaintiff who obtained a favorable judicial sum of sixty-six thousand dollars and zero cents" pronouncement in the course of litigation, yet suffered a constituted a reasonable fee for the necessary services of final judgment against him, could be a prevailing KB Home's attorneys. The judgment continued, however: party.[12] Helms had sued It appearing to the Court that, based upon the verdict of Page 654 the jury, KB Home Lone Star should recover its damages against the International Group Partnership several prison officials alleging a violation of his constitutional rights.[13] The district court granted Page 655 summary judgment against him on the merits of his claim, but the court of appeals reversed, holding that he as found by the jury, and the Court so finds. had a valid constitutional claim.[14] On remand, the district court still rendered summary judgment against IT IS ACCORDINGLY ORDERED, ADJUDGED AND him, finding that the defendants were shielded by DECREED that KB Home Lone Star have and recover qualified immunity.[15] Helms then sought his attorney's from the International Group Partnership judgment for fees, claiming that the court of appeals' decision made the sum of sixty-six thousand dollars and zero cents him the prevailing party.[16] The Supreme Court ($66,000.00).[21] disagreed, saying " [r]espect for ordinary language The court erred in making that award. The jury requires that a plaintiff receive at least some relief on the answered " 0" on damages, and KB Home sought no merits of his claim before he can be said to prevail." [17] other type of relief, so the trial court should have And since Helms did not obtain a damages award, rendered a take-nothing judgment against KB Home on injunctive or declaratory relief, or a consent decree or its contract claim. [22] settlement in his favor, he was not a prevailing party. [18] Five years later in Farrar v. Hobby, a federal civil-rights It seems beyond serious dispute that KB Home case, the Court elaborated: achieved no genuine success on its contract claim. Whether a party prevails turns on whether the party [T]o qualify as a prevailing party, a ... plaintiff must prevails upon the court to award it something, either obtain at least some relief on the merits of his claim. The monetary or equitable. KB Home got nothing except a plaintiff must obtain an enforceable judgment against the jury finding that Intercontinental violated the contract. It defendant from whom fees are sought, or comparable recovered no damages; it secured no declaratory or relief through a consent decree or settlement. Whatever injunctive relief; it obtained no consent decree or relief the plaintiff secures must directly benefit him at the settlement in its favor; it received nothing of value of any time of the judgment or settlement. Otherwise the kind, certainly none of the relief sought in its judgment or settlement cannot be said to " affect the petition.[23] No misconduct was punished or deterred, no behavior of the defendant toward the plaintiff." Only lessons taught. KB Home sought over $1 million in under these circumstances can civil rights litigation effect damages, but instead left the courthouse empty-handed: " " the material alteration of the legal relationship of the That is not the stuff of which legal victories are made." parties" and thereby transform the plaintiff into a [24] Nor do we perceive any manner in which the prevailing party. In short, a plaintiff " prevails" when outcome materially altered the legal relationship between actual relief on the merits of his claim materially alters KB Home and Intercontinental. [25] Before the lawsuit, the legal relationship between the parties by modifying Intercontinental was selling lots that were promised to the defendant's behavior in a way that directly benefits KB Home. After the lawsuit, Intercontinental had sold the the plaintiff.[19] promised lots and was not required to pay a single dollar The Court concluded that the plaintiff " prevailed" in damages or do anything else it otherwise would not in Farrar because he was awarded one dollar in damages: have done. " A judgment for damages in any amount, whether As judgment should have been rendered in compensatory or nominal, modifies the defendant's Intercontinental's favor, it is untenable to say that KB behavior for the plaintiff's benefit by forcing the Home prevailed and should recover attorney's fees. A defendant to pay an amount of money he otherwise stand-alone finding on breach confers no benefit would not pay." [20] Farrar did not speak to whether a whatsoever.[26] A zero on damages plaintiff awarded zero damages can claim prevailing-party status, but under the Farrar Court's Page 656 analysis, a plaintiff who receives no judgment for damages or other relief has not prevailed. necessarily zeroes out " prevailing party" status for KB Home.[27] The trial-court judgment in today's case recited the jury's finding that " [t]he sum of zero dollars would fairly and reasonably compensate KB" for its damages, if any, resulting from Intercontinental's breach, and that " [t]he APPENDIX #25 EXCERPTED

Page 522 not contest that part of the judgment which divorced her from the appellee, nor did she attack the custodial 693 S.W.2d 522 (Tex.App. —Corpus Christi 1985) provisions of the judgment relating to the child (who is now over the age of 18 years). Ethel M. KESSLER, Appellant, There is no question but that the judgment rendered v. in the original divorce proceedings (Cause No. 82-640-F) was separate and divisible. In Missouri-Kansas-Texas, R. Robert A. KESSLER, Appellee. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (1941), the opinion cited with approval the following No. 13-84-389-CV. rule: Court of Appeals of Texas, Thirteenth District, A court having power to vacate a judgment entirely may Corpus Chritsi grant less relief by vacating it in part only, where justice March 21, 1985 so requires. Where only a portion of the judgment is separable from the balance thereof, and the objection Rehearing Denied April 18, 1985. goes only to a separable part, the court should not set aside the whole judgment but only the objectionable part. Page 523 Therefore, the judgment rendered in the original C. Gerard Miller, Jr., Corpus Christi, for appellant. divorce action is now final with respect to the divorce granted and to the custodial provisions therein contained. Toufic Nicolas, Corpus Christi, for appellee. Those issues were not before the trial court in the Bill of Review. See McFarland v. Reynolds, 513 S.W.2d 620 Before BISSETT [1], UTTER and KENNEDY, JJ. (Tex.Civ.App.--Corpus Christi 1974, no writ); Davis v. Walker, 233 S.W. 521 (Tex.Civ.App.--Ft. Worth 1921, OPINION no writ). BISSETT, Justice. Appellant, in her verified petition for Bill of Review, This is a purported appeal from a judgment rendered alleged facts which, if true, showed that she was in a Bill of Review proceeding filed by the appellant, prevented from asserting her right to a greater share of Ethel M. Kessler, in connection with her prior divorce the community property accumulated by the parties suit against the appellee, Robert A. Kessler. The first during the marriage because of the extrinsic fraud issues to be decided are whether the remedy of a bill of perpetrated on her by appellee in securing her consent to review was available to appellant, and, if so, was the the original property division. She also alleged that judgment rendered in the bill of review proceeding a final appellee had misrepresented the values of some of the judgment. property in the inventory filed by him in the divorce action. She further alleged that the failure to discover the The original suit for divorce, child custody and fraud until more than 30 days after the rendition of the division of community property was filed on February 9, judgment was not due to lack of diligence on her part. 1982, in the 214th District Court of Nueces County, She sought a new trial on the community property Texas, and was docketed as Cause No. 82-640-F. A division, plus an award of attorney's fees incurred in consent judgment was signed by the trial judge on June connection with her prosecution of the Bill of Review. 29, 1982, which granted a divorce to the parties, made proper provision for the custody and support of the On August 22, 1984, the trial judge, in a trial to the youngest child born to said marriage, and divided the court, rendered a judgment in Cause No. 83-6282-F, community property of the parties in accordance with an which, in words and figures, reads as follows: agreed property settlement. FINAL JUDGMENT Page 524 Hearings were held in this cause on April 19, 1984 On December 20, 1983, appellant filed an original and July 18, 1984. Both Petitioner and Respondent Petition for a Bill of Review in the 214th District Court appeared in person and by their attorneys of record and of Nueces County, Texas, which was docketed as Cause announced ready for trial. No. 83-6282-F, wherein she attacked the judgment in the The Court having considered the evidence presented divorce proceeding previously granted insofar as it and the argument of counsel is of the opinion that divided the community property of the parties. She did Petitioner should be awarded $6,233.13. IT IS THEREFORE ORDERED that the appellee had secreted money in a bank. Respondent, ROBERT A. KESSLER pay Petitioner, ETHEL M. KESSLER the sum of $6,233.13 together Appellant's acceptance of the community property with 9% interest from the date the parties were divorced disposition made in the original judgment does not, as a on June 29, 1982. matter of law, estop her from a review of that disposition since she alleged that she was led into the agreement Respondent is further awarded the sum of $3,000.00 through fraud and misrepresentation on the part of as attorney's fees incurred in this cause which amount appellee, through no fault or negligence by her. shall bear interest at the rate of 9% per annum from the McFarland, supra, at 625. See Ragsdale v. Ragsdale, 520 date of this Judgment. S.W.2d 839 (Tex.Civ.App.--Ft. Worth 1975, no writ).

The costs of this proceeding are taxed against the Appellant was not limited to a partition suit to Respondent. All other relief not herein granted is denied. recover her just portion of property that was not divided in the decree of divorce under the rule of Busby v. Busby, SIGNED this 22nd day of August 1984. 457 S.W.2d 551 (Tex.1970), as argued by appellee.

MIKE WESTERGREN, The next question to be answered in this case is whether the judgment rendered in the Bill of Review Judge Presiding proceeding is a final judgment from which an appeal will lie. We answer that question in the negative. Appellant contends that the trial court erred in failing 1) to set aside the agreed property settlement, 2) to vacate The final judgment in a bill of review action should the prior judgment, and 3) to render a substitute judgment either 1) deny any relief to the petitioner or 2) grant the for the prior judgment which fairly divided the bill of review and set aside the former judgment, insofar community property between the parties. Appellee as it is attacked, and substitute therefor a new judgment contends: 1) that appellant is not entitled to any relief in which properly adjudicates the entire controversy. Texas this case because she pursued the wrong Employers' Ins. Ass'n v. Arnold, 126 Tex. 466, 88 S.W.2d 473 (1935); Humphrey v. Harrell, 29 S.W.2d 963 Page 525 (Tex.Comm.App.1930); Crabtree v. Crabtree, 627 remedy; and 2) that appellant is estopped from pursuing S.W.2d 486 (Tex.App.--Corpus Christi 1981, no writ); this appeal, having accepted the benefits awarded her by Smith v. Smith, 468 S.W.2d 139 (Tex.Civ.App.--Dallas the prior judgment of the trial court. We first dispose of 1971, no writ). Only one final judgment may be rendered appellee's contentions. in a bill of review proceeding. Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). A property settlement, reached by and between the parties in a divorce action, and an agreed judgment, It is a well-established rule of law in this state that, which is rendered which incorporated such an agreement when a judgment rendered in a bill of review proceedings therein, are subject to being set aside in a bill of review does not dispose of the entire controversy, it is not a final proceeding because of extrinsic fraud. McMurry v. judgment from which an appeal will lie. Henderson v. McMurry, 67 Tex. 665, 4 S.W. 357 (1887); O'Meara v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944); O'Meara, 181 S.W.2d 891 (Tex.Civ.App.--San Antonio Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022 (1936, 1944, writ ref'd.). judgment adopted); Shaw v. Cunningham, 42 S.W.2d 685 (Tex.Civ.App.--Eastland 1931, writ ref'd). In that Under the allegations of fact set out in appellant's situation, the appellate court must dismiss the appeal for petition, the remedy by a bill of review was available to want of jurisdiction since the judgment from which the appellant. The petition was timely filed. appeal is taken is interlocutory; such dismissal is without prejudice to the right to proceed to a final disposition of Appellee admitted that, prior to his filing of an the entire controversy. Hubbard v. Tallal, 127 Tex. 242, Inventory of the community property, he deposited 92 S.W.2d 1022 (1936, opinion adopted); Smith v. Miller, $8,310.84 (community funds) in the Southern National 285 S.W.2d 413 (Tex.Civ.App.--Galveston 1955, no Bank in the name of another person. He also admitted writ); Cooper v. Miller, 100 S.W.2d 753 that he intentionally omitted the above deposit from the (Tex.Civ.App.--Waco 1937, no writ). Inventory filed by him in the divorce action.

Appellant testified that, at the time the agreed property settlement was made, she was not aware that appellee had deposited $8,310.84 in the Southern National Bank and that she did not learn of such deposit until six or seven months after the divorce decree became final. She also testified that she would not have agreed to the property settlement if she had known at the time that APPENDIX #26 EXCERPTED

Page 795 clause of the will created a testamentary trust upon the termination of which forty-eight per cent of his residuary 518 S.W.2d 795 (Tex. 1974) estate is to be divided among eight named relatives and the remaining fifty-two per cent is to be divided among Herbert KNEBEL et al., Petitioners, ten other named persons indicated as being Knebel's general manager and employees. The trust was upheld in v. Knebel v. Capital National Bank in Austin, 469 S.W.2d 458 (Tex.Civ.App.1971, writ ref'd, n.r.e.). The CAPITAL NATIONAL BANK IN AUSTIN et al., Respondents. In time after Knebel's death the corporation sought to No. B--4546. acquire Knebel's stock by exercise of the option provided in the 1962 contract mentioned above. The Bank as an Supreme Court of Texas. Independent Co-executor of Knebel's estate determined the book value of the stock to be $43,394.60 and notified December 11, 1974 the devisee-beneficiaries that the stock would be sold to the corporation for the option price thus determined. On Denial of Rehearing March 5, 1975. Thereafter the Bank accepted a cash payment of one-fourth of the purchase price and a note for the Page 796 balance and delivered the Knebel stock to the corporation. Charles G. Trenckmann, Russell J. Horn, Byron Lockhart, Austin, for petitioners. In the meanwhile, several of the devisee-beneficiaries expressed dissatisfaction with the Page 797 price paid for the stock and in November 1966 the Bank filed suit for construction of the option agreement and for Sneed, Vine, Wilkerson & Selman, Louis Scott a determination of the book value of Knebel's stock in the Wilkerson, Clark, Thomas, Harris, Denius & Winters, corporation. Herbert Knebel, et al., the Petitioners here, a Richard T. McCarroll, Hart, Keahey and Hart, James P. group of the devisee-beneficiaries who were defendants Hart, Austin, for respondents. in the suit filed by the Bank, filed a motion for partial STEAKLEY, Justice. summary judgment grounded on the contention that the exercise of the option and subsequent sale was void This is another stage in proceedings adjudicated in because of the dual relationship of Henry H. Kuempel, part in 7--Up Bottling Company of Austin, Inc. v. Capital i.e., as an officer, director and stockholder in the National Bank in Austin, Independent Executor of The corporation and as an Independent Co-executor of Estate of Edmund Perry Knebel, Deceased, 505 S.W.2d Knebel's estate. The trial court in February 1969 rendered 624 (Tex.Civ.App.1974, writ ref'd, n.r.e.). The problems partial summary judgment declaring the transaction to be here involve claims for attorneys' fees. The current null and void Ab initio and ordered restoration of the opinion from which this appeal is taken is reported as status quo. This is the judgment that was affirmed in Herbert Knebel, et al. v. Capital National Bank of Austin, 7--Up Bottling Company, Inc., et al. v. Capital National 505 S.W.2d 628. Bank in Austin, Supra.

A narration of the facts and circumstances reviewed In March 1972, Henry H. Kuempel resigned as in detail in the two opinions of the Court of Civil Appeals Independent Co-executor of the estate of Knebel and in will pose the matters now at hand. May 1972 the Bank filed an amended petition in the original suit for determination of the question, among Edmund Perry Knebel died September 5, 1965. At others, of whether the option to purchase the stock that time he was a fifty per cent stockholder in the 7--Up belonging to the Knebel Bottling Company of Austin, Inc. The other fifty per cent of the stock was held by Henry H. Kuempel, et al., who Page 798 are Respondents here. Prior to incorporation Knebel had done business as a sole proprietor. In November 1962 he estate could then be exercised. Herbert Knebel, et al., by entered into a contract with the corporation by the terms way of a cross-action, sought an award of attorney's fees of which the corporation was given an option to purchase from the Knebel estate, and from the executors, as later the stock of a deceased stockholder at its book value. noticed in more detail. Knebel's will executed under date of November 1, 1955 …………. named the Capital National Bank in Austin and Henry H. Kuempel as Independent Co-executors. The residuary Page 799 The rule thus invoked rests in equity and not in U.S. 527, 26 L.Ed. 1157 (1881); Gibbs v. Blackwelder, contract in charging a common fund with expenses, 346 F.2d 943 (4th Cir. 1965); Schechtman v. Wolfson, including attorneys' fees. The equitable objective is that 244 F.2d 537 (2d Cir. 1957); Wallace v. Fiske, 80 F.2d of distributing the burden of such expenses among those 897 (8th Cir.1936); Palmer v. Hartford National Bank & who share in an accomplished benefit. The rule has been Trust Co., 160 Conn. 415, 279 A.2d 726 (1971); In re recognized with approval in Texas and elsewhere, Interstate Trust & Banking Company, 235 La. 825, 106 particularly in federal jurisdictions. The court wrote in So.2d 276 (1958); Bosch v. Meeker Cooperative Light & Brand v. Denson, 81 S.W.2d 111 (Tex.civ.App.1935, writ Power Association, 257 Minn. 362, 101 N.W.2d 423 dism'd): (1960); Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652 (Mo.1962); Annot., 107 A.L.R. 726 (1937). . . . In the language of the authorities, a court of equity will allow reasonable attorney's fees to a complainant It was recognized in Hall v. Cole, Supra: who at his own expense has maintained a successful suit or proceeding for the preservation, protection, or increase Although the traditional American rule ordinarily of a common fund. . . . The rule is founded upon the disfavors the allowance of attorneys' fees in the absence principle that one who preserves or protects a common of statutory or contractual authorization, federal courts, in fund works for others as well as for himself, and the the exercise of their equitable powers, may award others so benefited should bear their just share of the attorneys' fees when the interests of justice so require. expenses, including a reasonable attorney's fee; and that Indeed, the power to award such fees 'is part of the the most equitable way of securing such contribution is to original authority of the chancellor to do equity in a make such expenses a charge on the fund so protected or particular situation,' Sprague v. Ticonic National recovered. Page 800 The court cited the Annotation in 49 A.L.R. 1149, 1170, 1171; this Annotation, which has been Bank, 307 U.S. 161, 166, (59 S.Ct. 777, 780, 83 L.Ed. supplemented in 107 A.L.R. 749, states the rule as 1184) (1939), and federal courts do not hesitate to follows: exercise this inherent equitable power whenever 'overriding considerations indicate the need for such a The rule is that a court of equity, or a court in the exercise recovery.' Mills v. Electric Auto-Lite Co., 396 U.S. 375, of equitable jurisdiction, will, in its discretion, order an 391--392, (90 S.Ct. 616, 625, 24 L.Ed. 593) (1970); see allowance of counsel fees, or, as it is sometimes said, Fleischmann Distilling Corp. v. Maier Brewing Co., 386 allow costs as between solicitor and client, to a U.S. 714, 718 (87 S.Ct. 1404, 1407, 18 L.Ed.2d 475) complainant (and sometimes directly to the attorney) who (1967). at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund, or of common property, or who has created at his own expense, or brought into court, a fund in which others may share with him. (49 A.L.R. 1150)

See Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803 (1951); Thornhill v. Elskes, 412 S.W.2d 73 (Tex.Civ.App.1967, no writ); Adler v. Brooks, 375 S.W.2d 544 (Tex.Civ.App.1964, writ ref'd n.r.e.); Modern Optics, Inc. v. Buck, 336 S.W.2d 857 (Tex.Civ.App.1960, writ ref'd n.r.e.); American National Bank of Beaumont v. Biggs, 274 S.W.2d 209 (Tex.Civ.App.1954, writ ref'd n.r.e.); Brand v. Denson, 81 S.W.2d 111 (Tex.Civ.App.1935, writ dism'd); Thurber Construction Co. v. Kemplin, 81 S.W.2d 103 (Tex.Civ.App.1935, writ dism'd); Texon Oil & Land Co. of Delaware v. Hanszen, 292 S.W. 563 (Tex.Civ.App.1927, no writ); Byrne v. First National Bank of Lake Charles, 20 Tex.Civ.App. 194, 49 S.W. 706 (1899, writ ref'd). Also cf. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 58 S.Ct. 387, 28 L.Ed. 915 (1884); Trustees v. Greenough, 105 APPENDIX #27 EXCERPTED

Page 293 FACTUAL AND PROCEDURAL HISTORY

2 S.W.3d 293 (Tex.App. —San Antonio 1999) In March of 1982, Lowe, Winston O. Bloodworth, Jr. ("Bloodworth"), and T.A.A.S., Inc. executed a note Janis LOWE f/k/a Janis Bloodworth, Appellant, payable to the Bank in the original principal amount

v. Page 295

FARM CREDIT BANK OF TEXAS f/d/b as Federal of $477,000. The Bank was granted a lien against real Land Bank of Texas, Appellee property owned by T.A.A.S. to secure the note. At the time of the transaction, fifty percent of T.A.A.S.'s stock Nos. 04-98-00647-CV, 04-98-00649-CV. was owned by Lowe, and fifty percent was owned by Bloodworth. Lowe contends that the Bank, the abstract Court of Appeals of Texas, Fourth District, San title company closing the transaction, and Bloodworth Antonio represented that the pledged property included an improved 19.09 acre tract; however, the Bank failed to January 27, 1999 take a lien on that tract. Rehearing Overruled Aug. 26, 1999. In October of 1985, Lowe and Bloodworth Page 294 divorced. Bloodworth received Lowe's stock in T.A.A.S. as part of the property settlement. Lowe contends that she Appeal from the 38th Judicial District Court, Real notified the Bank of her name and address change in County, Mickey R. Pennington, Judge Presiding. [1] September of 1988.

Sharon E. Callaway, Sunny J. Jansma, Crofts, Sometime after the divorce, the note went into Callaway & Jefferson, P.C., San Antonio, James W. default, and the Bank foreclosed its lien on the property Christian, Chohn T. Hickman, Christian & Smith, L.L.P., pledged as security. In 1986, Bloodworth filed Houston, Tom Harwood, Law Offices of Tom Harwood, bankruptcy, and he received a discharge on March 24, Uvalde, for appellant. 1997. On January 30, 1990, the Bank obtained a summary judgment against Lowe, Bloodworth, and Barnet B. Skelton, Houston, for appellee. T.A.A.S. for the deficiency that remained due on the note after the foreclosure. The judgment was in the amount of Before PHIL HARDBERGER, Chief Justice, $47,930.48, with post-judgment interest to accrue at CATHERINE STONE, Justice, KAREN ANGELINI, 14.25% per annum. Justice. Lowe contends that she never received any notices OPINION relating to the default of the note or the foreclosure, and she was never served with process in the action for the PHIL HARDBERGER, Chief Justice. deficiency. Although the judgment recites that an answer was filed on Lowe's behalf, the attorney who filed the Appellant, Janis Lowe f/k/a Janis Bloodworth answer, Howard L. Pyland, admits that he never spoke ("Lowe"), appeals a summary judgment denying her with Lowe and was under the impression that Lowe and petition for bill of review. Lowe also brings an Bloodworth were married when he was retained by accelerated appeal from the trial court's denial of a Bloodworth to file the answer. Furthermore, the Bank's temporary injunction. We consolidated the two appeals documents reflect that notice was sent to Lowe at for briefing and argument. Lowe asserts eight issues in Bloodworth's home, rather than her new address which her brief relating to the following contentions: (1) the she claimed to have given the Bank. Lowe asserts that her trial court erred in granting summary judgment in favor first notice of the actions taken by the Bank was a of Farm Credit Bank f/k/a Federal Land Bank ("Bank"); demand letter sent by the Bank's attorney dated May 16, (2) the trial court erred in denying Lowe's motion for 1997. Since no payments had been made on the partial summary judgment based on absence of service; judgment, the amount due and owing on that date was (3) the trial court abused its discretion in awarding the $131,259.15. The letter indicated that the Bank would Bank attorney's fees; and (4) the trial court abused its levy on real property owned by Lowe in Galveston discretion in denying Lowe injunctive relief. We affirm the trial court's judgment in favor of Bank, and we County, Texas, if Lowe failed to immediately pay the deficiency. dismiss the interlocutory appeal from the trial court's denial of injunctive relief as moot. In August of 1997, Lowe filed her original petition for bill of review and application for temporary restraining order, temporary injunction, and permanent attacking a judgment awarding damages against him injunction. The Bank filed a motion for summary based on a usury claim. 631 S.W.2d at 730. The judgment, asserting that the bill of review constituted a respondent answered and requested attorney's fees for collateral attack because Lowe had failed to join contesting the bill of review. Id. The lower court held that Bloodworth and T.A.A.S. as necessary parties. Lowe the complainant failed to establish a meritorious defense filed a response and a motion for partial summary to the original usury claim, denied the bill of review, and judgment, contending that the deficiency judgment awarded the respondent attorney's fees. Id. The court of should be set aside as to her based on the absence of appeals reversed the portion of the judgment awarding service. Lowe filed an affidavit stating that: (1) she was attorney's fees, holding that since the defense of a bill of without notice of the deficiency suit; (2) she did not review was not the equivalent of pleading and proving a authorize Pyland to file an answer on her behalf; and (3) cause of action under the usury statute, attorney's fees she was not served with process. The Bank attached were not recoverable under the statute. Id. The Supreme Bloodworth's affidavit to its response in which Court reversed the court of appeals, noting that the Bloodworth states that he informed Lowe of the default respondent would have been entitled to attorney's fees if and potential foreclosure in September of 1988, and after the complainant had been able to pursue the usual course he was served with process in the deficiency suit, he of appeal. Id. notified Lowe and indicated that he would hire a lawyer. Lowe contends that the Supreme Court's holding By the time of the summary judgment hearing, limits awards of attorney's fees in bill of review Lowe had amended her petition, adding Bloodworth and proceedings to instances in which the respondent is Bloodworth's chapter 7 trustee, Robbye Waldron, as required to prove the claim for which the statute potential parties; however, the petition states that no authorizes the attorney's fees, i.e, the charging of usurious citation against Bloodworth or Waldron is requested. interest. Id. We disagree with this contention. The focus Lowe also had filed a motion to reopen the bankruptcy of the Supreme Court's holding is whether the statute estate in order to add Bloodworth as a party. The authorizing the recovery of attorney's fees draws a bankruptcy judge denied the motion, stating that the distinction between an award of attorney's fees at trial discharge relieved Bloodworth of any personal liability and an award of attorney's fees on appeal. See id. In the and the motion failed to name Waldron as a party for absence of such a distinction, attorney's fees are purposes of determining whether the claim for setting recoverable in a bill of review proceeding to the same aside the deficiency judgment was an asset of the estate. extent as attorney's fees were recoverable at trial. Id. at Waldron also filed an affidavit in his capacity as trustee, 730; Bakali v. Bakali, 830 S.W.2d 251, 257 stating that he abandoned any interest (Tex.App.--Dallas 1992, no writ); see also Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex.App.--Austin Page 296 1981, no writ) (construing bill of review as appeal for purposes of awarding attorney's fees). Since the trial in any potential recovery relating to the claim. court had the discretion to award the Bank attorney's fees at the trial of the deficiency claim, the Bank was entitled ……………….. to attorney's fees in the bill of review proceeding. Page 299 INJUNCTION [4]]]]] The deficiency judgment recited that Lowe The fifth through eighth issues raised by Lowe was a party defendant and appeared through an attorney. relate to the trial court's denial of injunctive relief and are Lowe may not attack that judgment in a collateral the subject of the accelerated appeal. Lowe contends that proceeding. Akers v. Simpson, 445 S.W.2d 957, 959 the trial court abused its discretion in denying her request (Tex.1969). The trial court did not err in granting for injunctive relief. The Bank counters that the pleadings summary judgment in favor of the Bank. [5] did not support injunctive relief and that the ATTORNEY'S FEES Page 300 In Lowe's fourth issue, she contends that the Bank entry of the final summary judgment caused the was not entitled to attorney's fees. The Bank counters that injunctive relief to become a moot issue. a party who successfully defends a bill of review is entitled to recover attorney's fees if attorney's fees are authorized in the prosecution and defense of the underlying case. The Bank cites the Texas Supreme Court's decision in Meece v. Moerbe, 631 S.W.2d 729 (Tex.1982), in support of its assertion. Lowe maintains that the Bank misinterprets the holding in Meece.

In Meece, the complainant filed a bill of review APPENDIX #28 EXCERPTED

Page 390 moved for sanctions. That day, the DFPS moved to nonsuit its claims, and the trial court granted the motion. 176 S.W.3d 390 (Tex.App.—Houston [1st Dist.] 2004) In February 2003, Martin served the DFPS with a request for disclosures, and it answered them in March. Martin Connie MARTIN, Appellant, then served the DFPS with additional discovery requests. When the DFPS did not answer, Martin moved to v. compel. The DFPS responded by filing a plea to the trial court's jurisdiction. The trial court granted the plea in a TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee. written order on September 3, 2003.

Analysis No. 01-03-01111-CV.

Court of Appeals of Texas, First District, Houston We review whether a trial court has subject matter jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. August 31, 2004 Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

On Appeal from the 328th District Court Fort Bend Trial Court Jurisdiction County, Texas Trial Court Cause No. 02-CV-126761. A trial court retains jurisdiction over a case for 30 Page 391 days after it signs a final judgment or order. Tex. R. Civ. P. 329b(d). During this period, the trial court has plenary Bobbie Sherril, Richmond, Leonard Mitchell Rubin, power to modify its judgment, but, after the 30 days run, Houston, for Ad Litem. the trial court loses its plenary power, and lacks jurisdiction to act in the matter. Check v. Mitchell, 758 Chris Lynn Branson, Houston, for Appellant. S.W.2d 755, 756 (Tex. 1988). A party can extend the trial court's plenary power, however, by timely filing an James Edward Kincade, Stafford, Ramiro Canales, appropriate postjudgment motion, either a motion for new Asst. Atty. General, Austin, for Appellee. trial, Tex. R. Civ. P. 329b(e), or a motion to modify, correct or reform the judgment, Tex. R. Civ. P. 329b(g), Panel consists of Chief Justice RADACK and within the 30 days after the trial court signs the final Justices BLAND and SULLIVAN. [*] judgment or order. A timely motion for new trial or motion to modify extends the trial court's jurisdiction OPINION over its judgment up to an additional 75 days, depending Jane Bland, Justice. on when or whether the court acts on the motions. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985); Appellant Connie Martin moved for sanctions Tex. R. Civ. P. 329b(c). If a motion for new trial or to against appellee, the Texas Department of Family and modify a judgment is not denied in a written order, then Protective Services (DFPS), [1] alleging that the lawsuit the motion is overruled by operation of law 75 days after the the trial court signs the judgment. Tex. R. Civ. P. 329b(c). The trial court retains plenary power to alter its Page 392 judgment for 30 days after it is overruled by operation of law. Tex. R. Civ. P. 329b(c), (e). DFPS had filed against her was frivolous. The same day, the DFPS moved to nonsuit its claims against Martin, and Nonsuits the trial court granted the motion. Thereafter, Martin sought discovery against the DFPS. The DFPS responded Rule 162 provides that a plaintiff may nonsuit a by filing a plea to the jurisdiction, contending that the case, —at any time— before the introduction of all of the trial court had, by then, lost plenary power over the case. plaintiff's evidence, as the DFPS did in this case. Tex. R. The trial court granted the DFPS's plea and this appeal Civ. P. 162. It further provides: followed. We conclude that the trial court correctly determined that it lacked plenary power and therefore we Any dismissal pursuant to this rule shall not prejudice the vacate its order granting the plea and dismiss this appeal. right of an adverse party to be heard on a pending claim for affirmative relief . . . A dismissal under this rule shall Background have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as In October 2002, the DFPS sued Martin, seeking determined by the court. protection of a child, conservatorship, and the termination of her parental rights. On November 20, 2002, Martin Id. After a trial court loses plenary power, however, it has no authority to award sanctions. Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); In re T.G., 68 S.W.3d 171, 179 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)

Page 393

(op. on reh'g); Jobe v. Lapidus, 874 S.W.2d 764, 766-68 (Tex. App.—Dallas 1994, writ denied). Thus, a trial court retains jurisdiction for 30 days after signing a final order of nonsuit to rule on pending motions. See Tex. R. Civ. P. 329b(d); In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (—Appellate timetables do not run from the date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal.—). APPENDIX #29 EXCERPTED

Page 660 I. Background

292 S.W.3d 660 (Tex. 2009) The Woodlands Operating Company leased the 19 copiers at issue here from MBM Financial Corporation 52 Tex. Sup.Ct. J. 1221 [2] and installed them in late 2000 and early 2001. Each machine was covered by a separate four-year lease, with MBM FINANCIAL CORPORATION, et al., annual renewals thereafter unless notice was sent Petitioners, between 90 and 180 days before the end of the existing term. The leases required the Woodlands to return the v. copiers to a location MBM specified. The WOODLANDS OPERATING COMPANY, L.P., The Woodlands decided not to renew the leases in Respondent. mid-2004 and asked MBM for the end-of-term dates and No. 08-0390. instructions for return. MBM employees provided the dates and approved a draft termination letter from the Supreme Court of Texas. Woodlands. But when the actual termination letter arrived (viewing the evidence in the light favorable to the August 28, 2009 trial court's judgment),[3] MBM's president unilaterally changed the dates so the notice would be untimely and Argued March 12, 2009. demanded rent for another year. To bolster MBM's position, he signed the leases and inserted Page 661 commencement dates for the first time after the Woodlands filed suit. Until suit was filed, MBM also [Copyrighted Material Omitted] refused to designate a return location for the bulky equipment. Page 662 The Woodlands sued, asserting claims for breach of Jennifer Bruch Hogan, Richard P. Hogan Jr. and contract, fraud, and declaratory relief. MBM Matthew E. Coveler, Hogan & Hogan, L.L.P., Phillip R. counterclaimed for additional rent of $160,000, though it Livingston and Deanna H. Livingston, Livingston & later dropped that claim. After a two-day bench trial, the Livingston, LLC, Houston, for Petitioners. trial court rendered judgment awarding the Woodlands Karen D. Smith, Kirby D. Hopkins and Rachael $1,000 in damages and $145,091.59 in attorney's fees McDonell Rolon, Drucker, Rutledge & Smith, L.L.P., through trial. The court of appeals affirmed the damages The Woodlands, for Respondent. and part of the fee award.[4] On appeal, MBM challenges both. Page 663 II. Nominal Damages & Breach of Contract OPINION At trial, the Woodlands requested only nominal BRISTER, Justice damages. The judgment describes the $1,000 award as " actual damages," but the trial court's findings and Since Jarndyce v. Jarndyce, [1] there have been conclusions describe them as " actual damages in the charges that some cases benefit the lawyers more than the form of nominal damages." clients. But suits cannot be maintained solely for the attorney's fees; a client must gain something before Page 664 attorney's fees can be awarded. While making losing parties bear their own attorney's fees may add injury to We agree with MBM that no evidence supports $1,000 insult, the American Rule has long been that each party as either. pays its own lawyers.

In this case, the plaintiff obtained a judgment for $1,000 in damages and almost $150,000 in attorney's fees. But there was no evidence to support the amount of the $1,000 award, and it is too large to constitute nominal damages. As the award to the client must be set aside, the attorney's fee award must also. Accordingly, we reverse and render a take-nothing judgment. APPENDIX #30 EXCERPTED

Page 55 "continuous," and complaints from Medical City's tenants prompted a meeting in October 2000 with representatives 251 S.W.3d 55 (Tex. 2008) from Charley Co., Medical City, and Carlisle. In November 2000, Medical City retained LRW MEDICAL CITY DALLAS, LTD., Petitioner, Consultants, Inc. to evaluate the roof. LRW found "[o]pen lap seams," "pinholes," "material defects in the v. roof membrane," and "premature aging of the material." LRW concluded that the roof was "in extremely poor CARLISLE CORPORATION d/b/a Carlisle Syntec Systems, Respondent. condition" and recommended that Medical City contact the manufacturer to discuss warranty issues. After failed No. 06-0660. attempts to resolve the dispute, Medical City sued Charley Co. and Carlisle, alleging breach of the express Supreme Court of Texas. warranties, breach of implied warranties, and negligence. It sought direct costs incurred in replacing the roof in April 11, 2008 October 2002, attorney's fees, and costs. The trial court granted Carlisle summary judgment on the negligence Argued Oct. 17, 2007. claim.

Page 56 A jury returned a verdict in favor of Medical City, finding that Carlisle breached its Twenty Year Membrane [Copyrighted Material Omitted] Warranty, and awarded Medical City $110,449.59 in damages and $121,277.04 in attorney's fees.[1] Carlisle Page 57 moved for judgment notwithstanding the verdict, but the Robert B. Gilbreath , Hawkins, Parnell & trial court denied the motion and signed a judgment for Thackston, LLP, Dallas, Melissa M. Davis , Brandy M. Medical City. Carlisle appealed. Wingate , Attorney At Law, Vernon Childs Howerton, Jr. , Jenkens & Gilchrist, Houston, TX, for Petitioner. Page 58

On the attorney's fees issue, the court of appeals Michael L. Knapek , William David Ellerman , held that Texas Civil Practice and Remedies Code section Jackson Walker, L.L.P., Dallas, TX, for Respondent. 38.001 (8), which allows fees for claims based on oral or Chief Justice JEFFERSON delivered the opinion written contracts, did not encompass breach of warranty of the Court. claims. 196 S.W.3d 855, 868-72. It noted that Medical City did not plead or try a breach of contract cause of Texas law permits recovery of attorney's fees for a action and did not recover on that theory. Id. at 870. As a claim based on an oral or written contract. See TEX. CIV. result, the court of appeals rendered a take-nothing PRAC. & REM.CODE § 38.001 (8). We must determine judgment for Carlisle on the attorney's fees claim and whether an action for breach of express warranty is such affirmed Medical City's judgment in all other respects. Id. a claim. Because we conclude that it is, we reverse in part at 872. Medical City petitioned this court for review on the court of appeals' judgment. the sole issue of attorney's fees. We granted the petition to decide whether a party who prevails in a breach of I express warranty action is entitled to attorney's fees. 50 Tex. Sup.Ct. J. 712 (May 4, 2007). Facts and Procedural History II In 1991, Medical City Dallas contracted with Charley Company of Texas to re-roof one of completed, Discussion Carlisle issued express warranties to Medical City, one of which-a Twenty Year Membrane Material A party who prevails in a lawsuit is entitled to Warranty-promised that the roof membrane would not recover attorney's fees only if permitted by statute or by deteriorate prematurely. Each express warranty identified contract. Tony Gullo Motors I, L.P. v. Chapa, 212 Medical City as the building's owner. S.W.3d 299, 310 (Tex.2006) . Here, while there was no separate contract between Medical City and Carlisle, Within months of the installation, Medical City Carlisle issued Medical City several express warranties. encountered a leak in the building's roof and Charley Co. Medical City contends that an express warranty is like a repaired it. By 1995, leaks became more frequent, and contract, and that attorney's fees are therefore authorized Charley Co. made more repairs. By 1999, the leaks were by section 38.001 of the Civil Practice and Remedies Code . We must determine if a claim based on an express warranty is, in essence, a contract action. Because we conclude that it is, Medical City was entitled to attorney's fees when it prevailed.

A

Historical Background

Nearly 100 years ago, the Texas Legislature created a statutory right to attorney's fees for judgments in select claims. See Act of March 13, 1909, 31st Leg., R.S., ch. 47, § 1, 1909 Tex. Gen. Laws 93, 94 (creating a right to a "reasonable amount" of attorney's fees, limited to twenty dollars, for persons obtaining judgment for the full amount of their claim in actions for "personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured" ). Over time, the statute has been modified to expand the types of claims eligible for an award of fees. It was amended in 1923 to allow fees for loss of or damage to express shipments. See Act of March 26, 1923, 38th Leg., R. S., ch. 144, § 1, 1923 Tex. Gen. Laws 312, 312. In 1949, it was amended to allow attorney's fees upon a judgment "for any amount" recovered. See Act of June 29, 1949, 51st Leg., R.S., ch. 494, § 1, 1949 Tex. Gen. Laws 915, 915. Four years later, the Legislature extended article 2226 to "suits founded upon a sworn account or account." See Act of April 21, 1953, 53d Leg., R.S., ch. 67, § 1, 1953 Tex. Gen. Laws 101, 101. As the statute evolved, so did Texas jurisprudence.

In 1958, we held that a contract for the drilling of an oil well was not an action on a sworn account and thus disallowed attorney's fees under article 2226. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958) . A 1973 court of appeals decision declared that attorney's fees were generally unavailable in contract actions at that time. M.C.Winters, Inc. v. Cope, 498 S.W.2d 484, 491 (Tex.Civ.App.-Texarkana 1973, no pet.) . And we strictly construed those claims allowing fees. See, e.g.,Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 820-21 (Tex.1970) (interpreting article 2226's "labor done" and "personal services" provisions);

Page 59

Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 896 (Tex.1962) (construing "personal services" rendered under article 2226). APPENDIX #31 Page 729 interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all 631 S.W.2d 729 (Tex. 1982) other charges and shall pay reasonable attorney fees set by the court.... Frank MEECE, Petitioner, The court of appeals severed and reversed that part of v. the judgment awarding Meece attorneys' fees. That court held Meece must plead and prove a cause of action under Bob MOERBE, d/b/a Bob's Air Conditioning, the usury statute in order to recover attorneys' fees. The Respondent. defense of a bill of review was not considered the equivalent of establishing an affirmative cause of action No. C-919. under the statute. 630 S.W.2d 278 (Tex.App.). We Supreme Court of Texas. disagree.

April 28, 1982 The purpose of article 5069-1.06(2) is to authorize attorneys' fees for the successful prosecution of a usury Larry Parks, Austin, for petitioner. claim to final judgment. While a bill of review is an equitable action, separate from the original suit, Meece Dale E. Muller, Austin, for respondent. had the burden of proving his original cause of action. Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex.1979). CAMPBELL, Justice. Meece would have been entitled to attorneys' fees if This is an appeal of a bill of review proceeding. The Moerbe had been able to pursue the usual course of only question is whether article 5069-1.06(2) [1] appeal. In International Security Life Ins. Co. v. Spray, authorizes an award of attorneys' fees to the bill of review 468 S.W.2d 347 (Tex.1971), this Court considered defendant, Frank Meece. We hold Meece is entitled to his whether attorneys' fees in the event of appeal were attorneys' fees. recoverable under art. 3.62 of the Insurance Code. The Code provides that under certain circumstances the Bob Moerbe, d/b/a Bob's Air Conditioning, insurance company becomes liable for 12% of a loss originally filed suit against Meece "together with reasonable attorney fees for the prosecution and collection of such loss." We said: Page 730 The purpose of the statute would be defeated if only the alleging an unpaid balance on charges for repairing an air fees incurred in the trial court were recoverable and the conditioning system. Meece counterclaimed alleging the fees incurred during the appeal remained the expense of 11/2% per month interest charge for late payment the policyholder. No such distinction or limitation may be assessed by Moerbe was usurious. The jury found for found in Article 3.62. Moerbe on all issues. However, the trial court held as a matter of law that Meece had established his Id. at 349. Likewise, we find no distinction or counterclaim for usury. Under article 5069-1.06(2), limitation in article 5069-1.06(2) that would bar the judgment was rendered that Moerbe take nothing and that award of attorneys' fees in a bill of review proceeding. Meece receive penalties and attorneys' fees. These attorneys' fees are not contested. The part of the judgment of the court of appeals reversing the award of attorneys' fees is reversed; and the The clerk of the court failed to send notice that the judgment of the trial court awarding Meece attorneys' judgment had been signed. Moerbe subsequently filed a fees is affirmed. The remainder of the judgment of the bill of review attacking the judgment. Meece responded court of appeals is affirmed. and requested attorneys' fees for contesting the bill of review. The district court found Moerbe had not --------- established a meritorious defense to the original usury claim; denied the bill of review; and awarded attorneys' Notes: fees to Meece under article 5069-1.06(2) for his successful defense of the bill of review and, if appealed, [1] All statutory references are to Texas Revised Civil upon affirmance of the bill of review judgment. Statutes Annotated.

Article 5069-1.06(2) states: ---------

Any person who contracts for, charges or receives interest which is in excess of double the amount of APPENDIX #32 EXCERPTED

Page 123 In the Owners' appeal, we affirm the portions of the trial court's judgment that disallowed the jury's verdict for 60 S.W.3d 123 (Tex.App. —Houston [14 Dist.] 2000) damages to the common areas and exteriors of the 2000) Owners' townhomes. We reverse that portion of the trial court's judgment that denied the Owners attorneys' fees Mr. and Mrs. Herman E. MITCHELL, Veronica O. and render judgment that the Owners collect attorneys' Pierre, and Susan Olivierre, Appellants, fees in the amount awarded to them by the jury. In the Former Owners' appeal, we find that the trial court erred v. by permitting a trial amendment after it signed the final judgment. Further, because we find that there were no Joe LAFLAMME, Paul LaFlamme, Texas live pleadings upon which the trial court could enter Cattlemen'S Trust, Kevin Frawley, and Robert judgment regarding indemnification, we reverse and Frawley, Appellees and Cross-Appellants, render to delete that portion of the judgment awarding v. indemnification against the Former Owners.

American Housing Foundation and the Courtyards of BACKGROUND Baytown Owners Association, Inc., Appellees and Cross-Appellees. The Owners who brought this suit are Herman and Roseann Mitchell, Veronica O. Pierre (Roseann No. 14-98-00185-CV. Mitchell's mother), and Susan Olivierre (Roseann Mitchell's sister). They bought four townhomes in The Court of Appeals of Texas, Fourteenth District, Courtyards of Baytown in 1991. The Courtyards of Houston Baytown was maintained by the Association, of which all townhome owners were members and to which each October 12, 2000 owner paid monthly assessments.

Page 124 The Owners testified that by 1993, the Association stopped caring for the common area of The Courtyards of [Copyrighted Material Omitted] Baytown. It closed the swimming pool permanently; driveways and roads had large potholes; instead of fixing Page 125 the paving, the Association filled the holes with shell; wires hung from electrical boxes; the topsoil was never [Copyrighted Material Omitted] leveled to prevent draining into the townhomes; and it Page 126 failed to plant grass.

Rod E. Gorman, Mark H. Ritchie, Casey J. The evidence also showed that the Association had Lambright, Houston, for appellants. stopped maintaining the exteriors of the townhomes. Even simple things, like cleaning out the gutters, were Robert L. Templeton, Amarillo, for appellees. left undone. The lack of maintenance caused many problems to the Owners' townhomes. For example, their Panel consists of Justices SEARS, CANNON, and townhomes developed extensive leaking in the roofs and LEE. [*] walls, pooling of water around the homes, flooding, and rotting to walls, doors, and window frames. In Mrs. OPINION Page 127 ROSS A. SEARS, Justice (Assigned). Pierre's townhome, kitchen walls rotted to such an In this case, we address two appeals arising from an extent that she could see outside if she opened a kitchen action against The Courtyards of Baytown Owners cabinet door. The flooding and leaking caused damage to Association (the Association). In the first appeal, several the interior walls, ceilings, and floors of the Owners' townhome owners (the Owners) appeal a denial of townhomes. In December 1993, Mrs. Pierre wrote to the attorneys' fees and damages for the common areas and Association about the problems, but received no exteriors of their homes. In the second, several former response. In frustration, the Mitchells stopped paying majority townhome owners and board members of the their monthly assessments fees to the Association, townhome owners' association (the Former Owners) although Mrs. Pierre and Ms. Olivierre continued to pay. appeal the trial court's order requiring them to indemnify the new majority property owner for judgment against the At trial, the jury found that the Association failed to Association and for costs, expenses, and attorneys' fees. comply with its covenants and bylaws. It awarded Mr. and Mrs. Mitchell $11,850, Mrs. Pierre $28,000, and Ms. townhomes. The trial court's judgment notwithstanding Olivierre $37,400 for costs of repair to the interior of the verdict allows only interior damages and their townhomes, loss of use, and costs of repairs to the exteriors and common areas. The jury also awarded Page 128 attorneys' fees to the Owners. However, the trial court entered a judgment not withstanding the verdict, which loss of use. The judgment explains that "[b]ecause the disallowed the attorneys' fees and limited the damages to plaintiffs did not sue on behalf of the non-profit $400 for Mr. and Mrs. Mitchell, $9,300 for Mrs. Pierre, corporation, Courtyards of Baytown Owners Association, and $13,400 for Ms. Olivierre for the costs of repair to Inc., the corporation is not entitled to recover damages to the interiors and loss of use only. the exterior of the units." We thus examine the record in the light most favorable to the verdict to determine EXTERIORS & COMMON AREAS whether the Owners could sue individually for exterior DAMAGES and common area damages.

In their first point of error, the Owners claim that …………….. the trial court erred in granting judgment notwithstanding the verdict on the issue of damages to common areas and Page 130 the exterior of the Owners' townhomes. The trial court's We overrule the Owners' point of error one. judgment disallowed these damages because the Owners did not sue in a derivative suit on behalf of the ATTORNEYS' FEES Association. In their second point of error, the Owners contend A. Standard of Review that the trial court erred in disregarding the jury's award of attorneys' fees. [3] They claim that they are entitled to A trial court may render a judgment attorneys' fees under section 5.006(a) of the Property notwithstanding the verdict if a directed verdict would Code, which states: "In an action based on breach of a have been proper and may, upon notice and motion, restrictive covenant pertaining to real property, the court disregard any jury finding on a question that has no shall allow to a prevailing party who asserted the action support in the evidence. See TEX.R.CIV.P. 301. We will reasonable attorney's fees in addition to the party's costs affirm a judgment notwithstanding the verdict if there is and claim." TEX.PROP.CODE ANN. § 5.006(a) (Vernon no evidence to support an issue, or conversely, the 1984). The award of attorneys' fees under this statute is evidence establishes an issue as a matter of law. See mandatory. See Inwood N. Homeowners' Ass'n v. Meier, Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). 625 S.W.2d 742, 744 (Tex.Civ.App.--Houston [1st Dist.] "No evidence" exists, and a judgment notwithstanding the 1981, no writ). verdict should be entered, when the record discloses one of the following: (1) a complete absence of evidence of a Appellees respond that the Owners never raised the vital fact; (2) the court is barred by rules of law or applicability of Property Code section 5.006(a) before the evidence from giving weight to the only evidence offered trial court, thus waiving the issue for appeal. However, if to prove a vital fact; (3) the evidence offered to prove a a party pleads facts which, if true, entitle him to the relief vital fact is no more than a scintilla of evidence; or (4) the sought, he need not specifically plead the applicable evidence establishes conclusively the opposite of a vital statute in order to recover under it. See Bellefonte fact. See Juliette Fowler Homes, Inc. v. Welch Assocs., Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 575 Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). To determine (Tex.App.--Houston [14th Dist.] 1983), rev'd in part on whether there is any evidence, we must review the record other grounds, 704 S.W.2d 742 (Tex.1986); see also in the light most favorable to the verdict, considering O'Connell v. Hitt, 730 S.W.2d 16, 18 (Tex.App.--Corpus only the evidence and inferences that support the verdict Christi 1987, no writ). Further, "pleading an incorrect or and rejecting the evidence and inferences contrary to the inapplicable theory or statute, as was done here, does not verdict. See Mancorp, Inc. v. Culpepper, 802 S.W.2d preclude an award." Bellefonte, 663 S.W.2d at 575. The 226, 227 (Tex.1990). When there is more than a scintilla Owners' petition includes a detailed recitation of the of competent evidence to support the jury's findings, the declaration's restrictions and of Appellees' breach of judgment notwithstanding the verdict should be reversed. those restrictions. Although the petition seeks attorneys' See id. at 228; Holeman v. Landmark Chevrolet Corp., fees under the Declaratory Judgment Act or the Uniform 989 S.W.2d 395, 402 (Tex.App.--Houston [14th Dist.] Condominium Act, it also includes a general prayer for 1999, pet. denied). attorneys' fees. We find that the pleadings suffice to recover attorneys' fees. B. Application We are further persuaded that the Owners should The jury's verdict compensated the Owners for the recover their attorneys' fees under section 5.006(a) following three elements of damages: (1) cost of repairs because it is so similar to the attorneys' fees provision of to the interior of their townhomes; (2) loss of use; and (3) the Condominium Act, which they pleaded, and because costs of repairs to the common areas and exteriors of their of the theories under which the case was tried and submitted to the jury. First, the Uniform Condominium Act provides attorneys' fees for a prevailing party in a suit to enforce a dedicatory instrument. [4] Thus, the Appellees were on notice that the Owners were seeking attorneys' fees because of the Association's failure to comply with its declaration. Cf. Horizon/CMS Healthcare Corp. v. Auld, 43 Tex.Sup.Ct.J. 1151, 2000 WL 1199263 at *7 (Aug. 24, 2000) (Reference to incorrect version of statute excused; Texas follows a fair notice standard, which looks to whether

Page 131

the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.). Second, the case was tried and submitted to the jury on the theory of breach of covenants, not on declaratory judgment claims. Thus, the attorneys' fees sought were always tied to the breach of covenants, not the Declaratory Judgment Act, under which the Owners had also pleaded.

In conclusion, we do not agree that the Owners waived the applicability of section 5.006(a) of the Property Code. Because award of attorneys' fees to the prevailing party is mandatory under section 5.006, we sustain point of error two and reverse and render that the Owners be awarded $82,000 for preparation and trial, $15,000 for their appeal to this Court, and $10,000 if this case is appealed to the Texas Supreme Court, as originally awarded by the jury in its verdict. APPENDIX #33 EXCERPTED

Page 536 on April 9, 2002. On May 28, 2002, the 49th day after that judgment, Moore Landrey filed a notice of appeal.[3] 126 S.W.3d 536 (Tex.App.—Houston [1st Dist] 2003) No party filed a motion for new trial or any other rule 329b motion.[4] MOORE LANDREY, L.L.P., Appellant, On June 12, 2002, the 64th day after the April 9, v. 2002 judgment, Moore Landrey filed a "Motion under Texas Rule of Procedure Rule 306a5 [sic]."[5] The HIRSCH & WESTHEIMER, P.C., Stephen P. Glover, motion was supported by Moore Landrey's counsel's and Groves & Glover, L.L.P., Appellees. affidavit, to which he had attached a verified copy of a notice from the Harris County District Clerk, dated May No. 01-03-00316-CV. 15, 2002, which reported that the trial court had signed an Court of Appeals of Texas, First District, Houston order granting summary judgment on April 9, 2002. Moore Landrey's motion and its counsel's affidavit October 16, 2003. asserted that the May 15, 2002 notice occurred more than 20 days after the April 9, 2002 order and was Moore Page 537 Landrey's and its counsel's first notice that the April 9, 2002 order had been signed. The motion requested that, Clay Dugas, Clay Dugas & Associates, Beaumont, "Texas Rule of Civil Procedure 306a 4[sic] applies to the TX, for Appellant. appellate deadlines in this case."

Jesse R. Pierce, Clements, O'Neill, Pierce & But Moore Landrey did not file a notice of hearing Nickens, Donald Burger, Jessie Alliene Amos, Clements, on its rule 306a(5) motion until December 9, 2002, O'Neill, Pierce, Wilson & Fulkerson, L.L.P., Houston, almost six months after the motion was filed. The trial TX, for Appellee. court nevertheless heard and granted the motion seven days later, on December 16, 2002. The trial court's order Panel consists of Chief Justice RADACK and of December 16, 2002 recites that relief was granted after Justices ALCALA and HIGLEY. considering the motion and the supporting affidavit and exhibit and decrees that, "the Order entered by the Court OPINION on April 9, 2002, was received by [Moore Landrey] on ELSA ALCALA, Justice. May 15, 2002." Moore Landrey filed an amended notice of appeal on March 25, 2003. This is an attempted appeal from an attorney's fees dispute in which appellant, Moore Landrey, L.L.P., seeks Hirsch & Westheimer's Jurisdictional Challenge to challenge summary judgments rendered in favor of Hirsch & Westheimer contends that Moore Landrey appellees, Hirsch & Westheimer, P.C. (Hirsch & cannot prosecute this appeal because the trial court's Westheimer), Stephen P. Glover, and Groves & Glover plenary power over its April 9, 2002 judgment had (collectively, Glover) on Moore Landrey's claims for breach of contract, negligent misrepresentation, expired when it signed the December 16, 2002 order, and that the December 16, 2002 order is, therefore, void. fraudulent inducement, and claims alleging a joint Moore Landrey disputes Hirsch & Westheimer's enterprise.[1] In addition to defending the summary challenge by arguing that nothing in rule 306a imposes a judgment rendered in its favor, Hirsch & Westheimer deadline, either to set a hearing on a rule 306a(5) motion alternatively challenges Moore Landrey's right to or to obtain a ruling. prosecute this appeal, on the grounds that the trial court no longer had plenary power when it signed a rule Plenary Power 306a(4) order to establish the date on which Moore Landrey received notice of the trial court's final A trial court retains plenary power over a final judgment.[2] We sustain Hirsch and Westheimer's judgment for at least 30 days after signing that judgment. jurisdictional challenge and dismiss the appeal. See TEX.R. CIV. P. 329b(d) ("[R]egardless of whether an appeal has been perfected," trial court retains "plenary Procedural Background power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment After entering a series of interlocutory orders, the trial court signed a final judgment is signed."). The date on which the trial court signs the judgment "determine[s] the beginning of the periods ... Page 538 for the court's plenary power." TEX.R. CIV. P. 306a(1).

Parties may extend this initial 30-day period of plenary power by timely filing, within that 30-day period, a motion that seeks a substantive change in the judgment. TEX.R. CIV. P. 329b(a), (g); seeLane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 310, 314 (Tex.2000); In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.2002], pet. ref'd).

Page 539

Appropriate motions include a motion for new trial or a motion to modify, correct, or reform the judgment. See TEX.R. CIV. P. 329b(g); Lane Bank Equip. Co., 10 S.W.3d at 310; In re T.G., 68 S.W.3d at 176. APPENDIX #34 EXCERPTED

Page 198 in an agreement on June 7, 1979, under which Holmstrom agreed to pay Rodriguez $250 in cash and to 627 S.W.2d 198 (Tex.App. —Austin 1981) reimburse a mechanic for necessary repairs to the drivetrain. Jose C. RODRIGUEZ, a/k/a Joe C. Rodriguez, Appellant, In any event, Holmstrom did arrange for the repair of the vehicle and, on the morning of June 15, 1979, v. telephoned Mr. Rodriguez to come take delivery of the Mustang. Upon Mr. Rodriguez's arrival, Holmstrom Jon HOLMSTROM, d/b/a Hill Country Car Center, produced an instrument for his signature purporting to Appellee. release Holmstrom and Hill Country Car Center from any further liability. Rodriguez, whose command of the No. 13367. English language was stipulated as "very poor," signed Court of Appeals of Texas, Third District, Austin the release but later testified at the bill of review hearing Holmstrom had demanded his signature as a prerequisite December 16, 1981 to the "release" of the automobile. Despite his interested party status, Holmstrom himself notarized the document. Page 199 Later in the afternoon of June 15, 1979, Holmstrom Vincent J. Scanio, Jr., Scanio & Scanio, San Marcos, telephoned Rodriguez's attorney and informed him of the for appellant. purported release, to which the attorney responded that he considered the release ineffective. Subsequently, on June Thomas N. Bluntzer, Bartram, Reagan, Burrus & 19, 1979, no answer or Dierksen, New Braunfels, for appellee. Page 200 PHILLIPS, Chief Justice. affirmative defense of release being filed by Holmstrom, This is an appeal of an equitable proceeding in the Rodriguez obtained a default judgment. nature of a bill of review which set aside a judgment alleged to be voidable. The county court at law of Hays ………. County granted the bill of review, set aside the prior default judgment, retried the cause, and entered a Page 202 take-nothing judgment against both parties. From that judgment, the appellant perfected his appeal. Although the language of the Act provides for attorney's fees "reasonable in relation to the amount of We reverse the judgment of the county court at law, work expended" at the trial level, it has been interpreted render that appellee take nothing by his bill of review and to authorize payment of attorney's fees on appeal as well. award appellant attorney's fees. Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442 (Tex.Civ.App.-El Paso 1976, no writ). The court in The original suit, underlying this bill of review, was Volkswagen reasoned, as the statute does not in any way filed by appellant against appellee, on May 25, 1979, in limit "the amount of work expended," the Legislature the county court at law of Hays County. Appellant intended to include all work expended. Logically, if all alleged that on or about July 17, 1978, he purchased a work expended is included, "then it must necessarily 1976 Ford Mustang from appellee. Appellant contended include the work expended on appeal, since that work is he was induced to acquire the automobile as a result of just as essential to the recovery as is the work in the trial Holmstrom's representation the sale included a court," supra at 496. Accord, Chrysler-Plymouth City, 12-month/12,000 mile warranty on the drivetrain. In Inc. v. Guerrero, 620 S.W.2d 700 (Tex.Civ.App.-San February of 1979, after approximately 4,000 miles of Antonio 1981, no writ); Chrysler Corporation v. usage, the transmission, a component of the Mustang's Schuenemann, 618 S.W.2d 799 (Tex.Civ.App.-Houston drivetrain, failed. On or about April 19, 1979, Mr. (1st Dist.) 1981, writ ref'd n.r.e.). Cf. International Rodriguez made written demand on Holmstrom to repair Security Life Insurance Co. v. Spray, 468 S.W.2d 347 or replace the transmission in accordance with the (Tex.1971). (Statutory attorney's fees under the Texas warranty. Holmstrom, however, disputed the existence of Insurance Code.) a warranty and refused to effect repairs. Appellant, in the original Deceptive Trade Practices Suit was instituted and, following service, settlement suit, obtained a default judgment which provided, in negotiations between Holmstrom and Rodriguez's addition to treble damages, for the recovery of $2,280 in attorney commenced. Appellant alleges these culminated attorneys fees, with a credit of $1,500 should the defendant forego appeal of the judgment. The

The issue raised is whether the appellee's institution Page 203 of a bill of review and the appellant's subsequent appeal of the granting of the bill can be considered an "appeal" attorney's fees decreed therein are hereby confirmed. for the purposes of awarding the attorneys fees allocated by the original default judgment. ---------

In Roman law, to appeal was to resort to court. Notes: Ballentine's Law Dictionary 82 (3rd ed. 1969). Today, an [1] Holmstrom, who had consulted a local justice of the appeal incorporates "any form of appellate review other peace prior to the execution of the "release," alleged he than by one of the extraordinary writs." 4 Am.Jur.2d had reasonably relied on "erroneous official information Appeal & Error § 2 (1962). While the word "appeal" has given by an official court functionary" which prevented a strict technical definition, it is frequently used as the timely filing of a motion for new trial. embracing all kinds of proceedings for the review of causes. 1 Bouviers' Law Dictionary, 209 (3rd ed. 1914). A justice of the peace is not an official court functionary of the county court at law and cannot, therefore, supply The English Court of Chancery was imbued with erroneous official information under the Baker v. jurisdiction in equity and the method by which review Goldsmith qualification of Alexander v. Hagedorn, infra. was obtained in that court was termed an "appeal." Her duties are totally unrelated to the machinations of the Black's Law Dictionary 428 (4th ed. 1968). A bill of county court nor do they include the dispensation of legal review is the equitable procedure for appeal of a advice. See also Buckler v. Tate, 572 S.W.2d 562 judgment. (Tex.Civ.App.-Houston (1st Dist.) 1978, no writ); Although the mechanics of an appeal, a writ of error, Thomason v. Freberg, 588 S.W.2d 821 and a bill of review are dissimilar, all three constitute (Tex.Civ.App.-Corpus Christi 1979, no writ). Compare "direct attacks" upon a judgment. 4 R. McDonald, Texas Brice v. Brice, 581 S.W.2d 699 (Tex.Civ.App.-Dallas Civil Practice § 18.24 (1971). 1979, writ dism'd) (reliance on an official for information not within his duties). Texas courts have long recognized a writ of error constitutes a method of "appeal." White v. Taylor, 11 [2] § 17.50 provided, in pertinent part: S.W.2d 374 (Tex.Civ.App.-Beaumont 1928), rev'd on "(a) A consumer may maintain an action if he has been other grounds ; 36 S.W.2d 181 (Tex.1931); Scaling v. adversely affected by any of the following: Williams, 284 S.W. 310 (Tex.Civ.App.-Fort Worth 1926, no writ); Martin v. Martin, 229 S.W. 695 (1) the use or employment by any person of an act or (Tex.Civ.App.-Austin 1921, no writ); Eppstein & Co. v. practice declared to be unlawful by Sec. 17.46 of this Holmes & Crain, 64 Tex. 560 (1885); Magee v. Chadoin, sub-chapter; 30 Tex. 644 (1876). (2) breach of an express or implied warranty; The right to appeal by writ of error is viewed as existing by virtue of the common law and, where omitted (3 and 4 have been omitted) by statute, it has been held not to be repealed or revoked. Hofheinz v. Wilson, 281 S.W. 273 (Tex.Civ.App.-Austin (b) In a suit filed under this section, each consumer who 1926, no writ); Humble Oil & Refining Co. v. Andrews, prevails may obtain: 279 S.W. 300 (Tex.Civ.App.-Eastland 1925, no writ). (1) three times the amount of actual damages plus court Accordingly, a bill of review has been deemed to be costs and attorney's fees reasonable in relation to the in the nature of a writ of error; Rogers v. Searle, 533 amount of work expended" S.W.2d 433 (Tex.Civ.App.-Corpus Christi), rev'd on other grounds, 544 S.W.2d 114 (Tex.1976), and both (2, 3, 4 & C have been omitted). writs of error and bills of review have been demarcated as methods of appeal. In fact, an "appeal," by writ of error --------- or a bill of review to set aside the judgment, is the exclusive method by which a default judgment may be vacated or set aside. Surety Insurance Co. v. State, 514 S.W.2d 454 (Tex.Cr.App.1974), citing, McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

We hold the term "appeal," as employed in the appellant's default judgment, necessarily encompassed consideration of that judgment by way of a bill of review. APPENDIX #35 Page 63 and conclusions of law are insufficient to support the trial court's granting of the bill of review, and there is 827 S.W.2d 63 (Tex.App. —Houston [1 Dist.] 1992) insufficient evidence to support the existence of a meritorious cause of action. Mannouch SHAHBAZ, Individually, d/b/a Tabriz Imports, a/k/a An appeal may be prosecuted only from a final judgment which disposes of all issues and parties in the Tabrizi Imports, Appellant, case. North East Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). The final judgment in a bill v. of review action should either deny any relief to the petitioner or grant the bill of review and set aside the FEIZY IMPORT & EXPORT COMPANY, former judgment, insofar as it is attacked, and substitute a Appellee. new judgment which properly adjudicates the entire No. 01-91-00260-CV. controversy. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Court of Appeals of Texas, First District, Houston In this case, the bill of review set aside the prior March 12, 1992 judgment of dismissal but did not address the merits of appellee's cause of action. A bill of review that sets aside Page 64 a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature, not a William R. Henderson, Houston, for appellant. final judgment,

Angelo Parrish, Houston, for appellee. Page 65

Before TREVATHAN, MIRABAL and PRICE, [*] and therefore, not appealable. Tesoro Petroleum v. Smith, JJ. 796 S.W.2d 705, 705 (Tex.1990), Warren v. Walter, 414 S.W.2d 423, 423-24 (Tex.1967). OPINION The judgment being interlocutory, this Court is TREVATHAN, Justice. without jurisdiction to review it. Tesoro, 796 S.W.2d at 705. This is an appeal from a bill of review proceeding. The trial court granted a bill of review and set aside a The appeal is dismissed for want of jurisdiction. previous order in another cause which dismissed appellee's suit for want of prosecution. Appellant --------- complains on appeal that the trial court erred in the granting of the bill of review and the reinstatement of the Notes: prior cause. [*] Honorable Frank C Price, former justice, Court of On July 23, 1987, appellee filed its suit against Appeals, First District of Texas, at Houston, sitting by appellant to recover damages of $47,015.50 based on a assignment. sworn account for merchandise delivered, and $6,154.40 for checks returned to appellee because of insufficient --------- funds. In September 1988, the trial court sent a notice of its intent to dismiss appellee's cause of action to an incorrect address. On October 21, 1988, the trial court dismissed appellee's cause of action for want of prosecution. The notice of the dismissal order was sent to the same incorrect address. Appellee did not receive notice that its cause of action had been dismissed until May 1989. Since the time for direct appeal had expired, on July 21, 1990, appellee filed a bill of review in the trial court seeking to have its cause of action reinstated. The trial court conducted a hearing and granted appellee's bill of review. In two points of error, appellant argues the trial court erred in granting appellee's bill of review and reinstating its cause of action because the findings of fact APPENDIX #36 EXCERPTED

Page 104 On appeal, TA argued that because Solar did not provide a lien-release affidavit, which TA argues was a 327 S.W.3d 104 (Tex. 2010) condition precedent to final payment under the contract, Solar cannot recover for breach of contract. On rehearing, 54 Tex. Sup.Ct. J. 238 the court of appeals reversed the trial court's judgment, holding that the lien release provision was a condition SOLAR APPLICATIONS ENGINEERING, INC., precedent and that Solar failed to prove it complied with Petitioner, the lien-release provision. It rendered a take-nothing v. judgment in favor of TA.[2]

T.A. OPERATING CORPORATION, Respondent. Page 106

No. 06-0243. The issue before this Court is whether the lien-release provision is a condition precedent to Solar's Supreme Court of Texas. recovery for breach of contract and whether failure to provide it is a bar to recovery. TA reasonably argues that December 3, 2010 an owner who has paid the contract amount to the general contractor is entitled to a building free of subcontractor's Argued Oct. 16, 2010. liens. Solar contends, also reasonably, that it is entitled to the balance remaining under the contract for completing Page 105 the project offset by the cost to remedy defects and omissions. Under normal circumstances, Solar might Douglas W. Alexander, Alexander Dubose & have provided a conditional lien-release affidavit to allow Townsend LLP, Austin, TX, Jeffrey D. Small, Law Solar to fulfill its obligation under the contract, to allow Office of Jeff Small, Jonathan Yedor, Heinrichs & TA to be assured that it will not be double-billed for work DeGennaro, P.C., Myron E. East Jr., Barton, Schneider & on the project, and to allow the parties to resolve their East, L.L.P., San Antonio, TX, for Petitioner. dispute regarding the scope of the work. But the standard operating procedure broke down here, and the court of Sharon E. Callaway, Crofts & Callaway, P.C., R. appeals ultimately ruled that TA was entitled to a Wes Johnson, The Gardner Law Firm, William W. windfall, even though the issue of breach or satisfaction Sommers, Gardner & Ferguson, Inc., San Antonio, TX, of conditions precedent was not tried to the jury. for Respondent. We hold that the lien-release provision is a Richard Gary Thomas, Thomas Feldman & Wilshusen, LLP, Dallas, for Amicus Curiae. covenant, not a condition precedent to Solar's recovery on the contract. We reverse the judgment of the court of OPINION appeals, reinstate the trial court's judgment, and remand to the trial court for further proceedings consistent with WAINWRIGHT, Justice. this opinion.

In this case, a general contractor and an owner ……………………….. dispute performance and final payment under a construction contract.[1] Solar Applications Engineering, Page 108 Inc. d/b/a Wade Construction (Solar), the general provision was a condition precedent and held that the contractor, and T.A. Operating Corporation d/b/a doctrine of substantial performance did not excuse Solar's TravelCenters of America (TA), the owner, entered a failure to provide a lien-release affidavit, and thus Solar contract to build a truck stop in San Antonio, Texas. forfeited final payment under the contract. 191 S.W.3d After Solar substantially completed the project, disputes 173, 180-81 (Tex.App.-San Antonio 2005, pet. granted). arose regarding the completion of certain remaining work Solar petitioned this Court, complaining that the court of and the attachment of liens on the property by appeals erred because: (1) the lien-release provision was subcontractors and Solar. TA eventually terminated the not triggered; (2) the lien-release provision is not a contract and refused to make final payment to Solar. condition precedent; and (3) even if the lien-release Solar sued TA for breach of contract to recover the provision is a condition precedent and was triggered, the contract balance, and TA counterclaimed for delay and defective work. At trial, the court's jury charge focused court of appeals' decision results in a forfeiture of Solar's right to recover under the contract instead of delaying primarily on damages. The verdict substantially favored payment until the liens are released, which is inconsistent Solar, with the jury awarding actual damages of $400,000 with the doctrine of substantial performance and the offset by $8,000 in defects and omissions. purpose of statutory lien rights. We granted Solar's payment. See TEX. PROP.CODE § 53.085(a), petition. Page 109 II. LAW AND ANALYSIS (c)(1).[7] Consistent with section 53.085, section Whether Solar is barred from receiving the 14.07(A) of the contract requires that an application for contract balance depends on whether the lien-release final payment include a lien-release affidavit, and section provision is a condition precedent to Solar's recovery for 14.07(B) provides that TA's obligation to pay the final breach of contract. " A condition precedent is an event amount is conditioned on its review of the final that must happen or be performed before a right can application. Contending that the language of the contract accrue to enforce an obligation." Centex Corp. v. Dalton, is " unmistakable," TA concludes that forfeiture does not 840 S.W.2d 952, 956 (Tex.1992) (citations omitted); see excuse Solar's failure to comply with this express also RESTATEMENT (SECOND) OF CONTRACTS § condition. See RESTATEMENT (SECOND) OF 224 (1981) (" A condition is an event, not certain to CONTRACTS § 229 cmt. a (1981) (" [I]f the term that occur, which must occur, unless its non-occurrence is requires the occurrence of the event as a condition is excused, before performance under a contract becomes expressed in unmistakable language, the possibility of due." ); id. § 225 (noting the effects of the forfeiture will not affect the interpretation of that non-occurrence of a condition). A covenant, as language." ). Being quite candid, TA offered at oral distinguished from a condition precedent, is an agreement argument that the Legislature may well have intended to act or refrain from acting in a certain way. Reinert v. such a windfall for owners. Lawson, 113 S.W.2d 293, 294 (Tex.Civ.App.-Waco 1938, no writ). Breach of a covenant may give rise to a cause of action for damages, but does not affect the enforceability of the remaining provisions of the contract unless the breach is a material or total breach. E.g., Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692-94 (Tex.1994); RESTATEMENT (SECOND) OF CONTRACTS §§ 236 cmt. a, 241, 242 cmt. a. Conversely, if an express condition is not satisfied, then the party whose performance is conditioned is excused from any obligation to perform. See Dalton, 840 S.W.2d at 956; RESTATEMENT (SECOND) OF CONTRACTS § 225.

Solar claims that the court of appeals erred in concluding that the lien-release provision is a condition precedent because it lacks conditional language normally associated with express conditions. See Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex.1990). When the lien-release provision is read in context, Solar contends it constitutes a " hoop" or step that the general contractor must follow in order to collect final payment, not a condition precedent to sue and recover under the contract. Because a different and reasonable interpretation of the contract is possible, Solar argues the Court should construe the provision to prevent a forfeiture. See id. Further, the lien-release provision should not be applied as a condition precedent because its purpose-to protect TA from the possibility of having to pay twice-was accomplished by the trial court's severance of the subcontractors' claims against the project and order that the sums awarded to Solar be held in trust to pay outstanding sub-contractor liens.

TA responds that the court of appeals correctly held Solar was not entitled to the contract balance because it did not show that it complied with an express condition precedent to final payment. Section 53.085 of the Texas Property Code specifically authorizes an owner to require a lien-release affidavit as a condition of final APPENDIX #37 EXCERPTED

Page 590 caused by or aggravated by her fall. After a benefit review conference failed to resolve this issue, the parties 923 S.W.2d 590 (Tex. 1996) proceeded to a contested case hearing. See TEX. LAB.CODE § 410.151. Reed was not represented by The TRAVELERS INDEMNITY COMPANY OF counsel at this hearing, although she was assisted by a CONNECTICUT, Relator, Workers' Compensation Commission ombudsman. See id. § 409.041. v. The hearing officer ruled in favor of Reed, The Honorable Alan MAYFIELD, Judge, concluding that she suffered from preexisting Respondent. hydrocephalus aggravated by her on-the-job injury. The hearing officer further found that Reed had not yet No. 95-1209. reached maximum medical improvement, rejecting the Supreme Court of Texas. contrary conclusion of the designated doctor. Accordingly, the hearing officer ordered Travelers to pay May 31, 1996 temporary income benefits to Reed until she reached maximum medical improvement or no longer suffered Argued April 17, 1996. from a disability, as well as medical benefits associated with Reed's condition. The record does not disclose the Rehearing Overruled July 8, 1996. amount of the temporary income benefits, which are paid weekly at a rate based on the claimant's average weekly Page 591 wage. See TEX. LAB.CODE § 408.103. Travelers was apparently still paying these weekly benefits at the time James Lee Williams, Jr., Fort Worth, Angus E. of the trial court proceedings which form the basis of this McSwain, Waco, P. Michael Jung, D. Bradley Kizzia, complaint. Dallas, for relator. Travelers appealed to a Commission appeals panel, Tom L. Ragland, Waco, for respondent. which affirmed the hearing officer's decision. Reed again PHILLIPS, Chief Justice, delivered the opinion of represented herself in this administrative appeal, the Court, in which GONZALEZ, HECHT, ENOCH, apparently without assistance from an ombudsman. OWEN, and ABBOTT, Justices, joined. Travelers then filed suit in district court for judicial In the workers' compensation suit underlying this review of the Commission's decision. See TEX. original mandamus proceeding, the trial court appointed LAB.CODE § 410.251. Reed, appearing pro se, filed an an attorney to represent the claimant, ordering the carrier answer and a counterclaim seeking "weekly indemnity to pay opposing counsel's fees as the case progressed. benefits for 401 weeks from June 9, 1993; all medical While not challenging the appointment itself, the carrier expenses, costs of court and general relief." [1] A short contends that the trial court abused its discretion and time later, she filed a motion asking the court to appoint caused irreparable harm by requiring it to pay for the an attorney for her, to be paid by the county or by claimant's attorney. Because we agree, we conditionally Travelers. Reed contended that, despite diligent efforts, grant the writ of mandamus. she had been unable to obtain a lawyer to represent her on a contingency I Page 592 Real party in interest Allene Reed, a 49 year-old office administrator, suffered a slip and fall at work while basis. She further argued that this inability resulted from moving file boxes. Reed contends that she struck her the fee restrictions imposed by the new Workers' head on the floor during the fall, aggravating a Compensation Act, see TEX. LAB.CODE § 408.221, preexisting medical condition referred to as "syrinx which became effective in January 1991. See Acts 1989, condition and symptomatic, previously compensated 71st Leg., 2nd C.S., ch. 1, § 17.18. Reed contended that hydrocephalus" ("hydrocephalus"). While the record does these restrictions, by depriving her of counsel, violated not contain a lay definition of this condition, it apparently her due course, due process and equal protection rights involves abnormal fluid levels in the cranium. under the Texas and United States Constitutions. She also filed an affidavit attesting that she was "too poor to Travelers Indemnity Company of Connecticut, the employ counsel to represent [her] in this case." workers' compensation carrier for Reed's employer, denied that Reed's hydrocephalus, if it existed at all, was ……….. Page 593 under section 24.016 of the Texas Government Code and under the trial court's inherent authority. We address each presumption that an indigent litigant has a right to purported justification. appointed counsel only where physical liberty is at stake). The narrow issue presented is whether the trial court, The Government Code vests district judges with the having appointed an attorney to represent Reed, could following discretion to appoint counsel: require Travelers to pay the fees for that attorney. We conclude that placing this burden on Travelers constituted A district judge may appoint counsel to attend to the an abuse of discretion. cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause. In Texas, attorney's fees may not be recovered from an opposing party unless such recovery is provided for by TEX. GOV'T CODE § 24.016. Whatever the reach of statute or by contract between the parties. See Dallas this provision, it contains no language authorizing judges Central Appraisal Dist. v. Seven Investment Co., 835 to shift the fees for appointed counsel to the opposing S.W.2d 75, 77 (Tex.1992); New Amsterdam Cas. Co. v. party, and it has never been so interpreted. Because the Texas Indus., 414 S.W.2d 914, 915 (Tex.1967). The authority for a fee award "may not be supplied by authorization of attorney's fees in civil cases may not be implication but must be provided for by the express terms inferred; rather it "must be provided for by the express of the statute in question," Guex, 677 S.W.2d at 30, we terms of the statute in question." First City may not construe section 24.016 as impliedly authorizing Bank--Farmers Branch v. Guex, 677 S.W.2d 25, 30 a trial court to place the financial burden of appointed (Tex.1984). counsel on the opposing party.

There is no statute which authorizes recovery of The original statutory predecessor to section 24.016 attorney's fees under the circumstances of this case. To provided as follows: the contrary, the Workers' Compensation Act provides that the claimant's attorney's fee "shall be paid from the The judges in any case, civil or criminal, in which a party claimant's recovery," TEX. LAB.CODE § 408.221(b), [2] may swear that he is too poor to employ counsel, shall with two exceptions, neither of which is present here. The appoint counsel first exception applies where an insurance carrier Page 594 unsuccessfully challenges a Commission order awarding supplemental income benefits. See id. § 408.147(c). In for such party, who shall attend to the cause in behalf of that situation, the claimant is entitled to recover such party without any fee or reward. reasonable attorney's fees in addition to any accrued benefits. Id. Because there has been no Commission determination that Reed is entitled to supplemental income benefits, this exception clearly does not apply here. The second exception allows claimants to recover attorney's fees when suing to enforce a final order of the Commission which the carrier has failed to comply with. See TEX. LAB.CODE § 410.208. Because a Commission order which is timely appealed for judicial review is not "final," see id. § 410.205(a), this provision likewise does not apply in this case.

Reed also does not contend that she may recover attorney's fees based on any agreement between the parties. Specifically, she does not claim that the workers' compensation insurance contract between her employer and Travelers authorizes her recovery of attorney's fees. Indeed, she cannot do so, as section 38.001 of the Texas Civil Practice and Remedies Code, which generally authorizes recovery of attorney's fees for suits on a written contract, does not apply to insurance contracts subject to article 21.21 of the Texas Insurance Code. See TEX. CIV. PRAC. & REM.CODE § 38.006. The compensation policy issued by Travelers falls within this exception. See Aetna Cas. & Sur. Co. v. Marshall, 724 S.W.2d 770, 772 (Tex.1987).

Instead, Reed attempts to justify the trial court's order APPENDIX #38 EXCERPTED

Page 860 within 10 days of the notice, the court would dismiss the case for want of prosecution. Joachim asserts he did not 315 S.W.3d 860 (Tex. 2010) receive this notice. The trial court then entered an order that the case " is hereby dismissed in full with prejudice 53 Tex. Sup.Ct. J. 745 for want of prosecution." Joachim claims he did not receive a copy of that order either. Unaware of the The TRAVELERS INSURANCE COMPANY (The dismissal order, Joachim neither contested it while the Automobile Insurance Company of Hartford court retained plenary power, see TEX.R. CIV. P. 329b, Connecticut), Petitioner, nor perfected an appeal. v. Joachim later refiled the same cause of action, and the case was assigned to a different trial court. Travelers Barry JOACHIM, Respondent. filed a motion for summary judgment based on res No. 08-0941. judicata. The second trial court granted Travelers' motion and ordered that Joachim take nothing by his suit. Supreme Court of Texas. Joachim appealed that judgment. The court of appeals reversed, holding that a nonsuit removes a trial court's May 14, 2010 jurisdiction to enter a dismissal with prejudice. 279 S.W.3d 812, 817 (Tex.App.-Amarillo 2008). The court of Argued Feb. 17, 2010. appeals therefore determined that the first trial court's order was void, not merely voidable. Id. at 818. Thus, it Rehearing Denied Aug. 27, 2010. concluded that Travelers failed to establish the defense of res judicata. Id. Page 861 …….. Jeffrey B. Jones, Christopher Bradley Slayton, Jones Flygare Brown & Wharton, Lubbock, for The question remains whether the trial court's Petitioner. voidable order of dismissal is sufficient Stace Lawrence Williams, The Stace Williams Page 866 Law Firm, P.C., Lubbock, for Respondent. to establish Travelers' affirmative defense of res OPINION judicata. We conclude it is. Because Joachim failed to attack the trial court's order directly, it became a final GREEN, Justice. judgment for purposes of res judicata.[5] Joachim alleges In this procedural dispute, we must decide whether that he never received notice of the judgment dismissing a trial court's erroneous dismissal of a suit with prejudice, his cause of action with prejudice. Certainly, if this is following the plaintiff's filing of a nonsuit, operates to bar true, the lack of notice would not bind him to the effects a later suit because of res judicata. We conclude that it of the first trial court's erroneous judgment without some does. Therefore, we reverse the court of appeals' potential remedy.[6] However, there is a remedy: an judgment and order the case dismissed. equitable bill of review is a direct attack on a judgment. See TEX.R. CIV. P. 329b(f) (providing that a judgment I may be set aside by the trial court by bill of review for sufficient cause); McEwen v. Harrison, 162 Tex. 125, Barry Joachim sued his insurer, The Travelers 345 S.W.2d 706, 709 (1961) (" A bill of review filed in Insurance Company,[1] alleging he was entitled to the proper court and against proper parties is one benefits from Travelers for damages caused by Joachim's authorized method of making a direct attack on a accident with an underinsured driver. On the day before judgment." ); Baker v. Goldsmith, 582 S.W.2d 404, 406 trial, Joachim filed a " Notice of Non-Suit" stating that he (Tex.1979) (" A bill of review is an independent " no longer wishes to pursue his claims against equitable action brought by a party to a former action Defendants," [2] and therefore " gives notice to all parties seeking to set aside a judgment, which is no longer that his claims against the same are hereby dismissed appealable or subject to motion for new trial." ); see also without prejudice." No motions or counterclaims were Levit v. Adams, 850 S.W.2d 469, 470 (Tex.1993) (per pending at that time. Several months later, the curiam) (allowing a bill of review to proceed because when a party first receives notice of a final judgment Page 862 more than 90 days after the order is signed, the time limit under Texas Rule of Civil Procedure 306a(4), a bill of trial court sent notice that if a final order was not filed review is a proper method of seeking relief); Wolfe v. situation where the trial court granted a collateral motion Grant Prideco, Inc., 53 S.W.3d 771, 775 for sanctions during the period when it retained plenary (Tex.App.-Houston [1st Dist.] 2001, pet. denied) power. See 940 S.W.2d at 596. In this case, however, the (reversing summary judgment dismissing a bill of review trial court's plenary power is not at issue because after claim filed after the plaintiff's earlier case was dismissed Joachim filed his nonsuit, the record shows that the trial for want of prosecution). Had the trial court set aside the court never entered a judgment until it entered its judgment, either by timely motion for new trial or by bill dismissal with prejudice. See TEX.R. CIV. P. 329b(d) (" of review, Joachim's underlying claim would no longer The trial court, regardless of whether an appeal has been be barred by res judicata, as there would no longer be a perfected, has plenary power to grant a new trial or to final determination on the merits.[7] Yet, because the first vacate, modify, correct, or reform the judgment within trial court's order stands, Joachim's claim is barred. thirty days after the judgment is signed." ); Shultz, 195 Accordingly, we reverse the court of appeals' judgment S.W.3d at 100 (observing that although a nonsuit is and render judgment dismissing Joachim's cause of action effective upon its filing, expiration of plenary power is with prejudice based on Travelers' defense of res judicata. determined from the date on which a trial court signs an order dismissing the suit). III [5] We note that none of Joachim's allegations in the trial We hold that because a trial court has jurisdiction to court, even when construed liberally, can plausibly be enter orders dismissing a case with prejudice upon filing considered as being in the nature of a claim for bill of of a nonsuit, the trial court's order here was voidable, not review or similar relief. void, and subject only to direct attack. Because Joachim failed to attack the trial court's order directly, it became a [6] The United States Supreme Court recently observed, final determination on the merits for purposes of res for instance, that comparable relief under Federal Rule of judicata. Therefore, we reverse the court of appeals' Civil Procedure 60(b)(4) (relief from a final judgment judgment and render judgment dismissing the case with that is void) " applies only in the rare instance where a prejudice. judgment is premised either on a certain type of jurisdictional error or on a violation of due process that --------- deprives a party of notice or the opportunity to be heard." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. __, Notes: __, 130 S.Ct. 1367, 1377, 176 L.Ed.2d 158 (2010). Here, however, although Joachim mentions his lack of notice, [1] The parties agree that The Automobile Insurance Joachim asserted only jurisdictional error as a legal Company of Hartford, Connecticut issued Joachim's argument. policy. For convenience, however, we refer to the respondent in this case as Travelers because The [7] We offer no opinion as to whether Joachim might Travelers Insurance Company is the entity Joachim have succeeded in having the trial court set aside its named first in his trial court petitions. judgment by pursuing an equitable bill of review or any other remedy in the trial court. [2] Joachim's first petition included several insurance companies as defendants. --------- [3] We have used similar language in discussing a dismissal. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962) (" It is elementary that a dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court's jurisdiction was invoked just as if the suit had never been brought." ). However, Crofts did not involve a nonsuit. The court in Crofts dismissed a divorce petition, while a related suit was pending in Maryland. See id. at 103. Crofts held that a trial court could not be ordered by writ of mandamus to give possession of children to a mother after the trial court had dismissed the case. See id. at 104-05. Even if the circumstances of that dismissal could be considered analogous to a nonsuit, however, we do not read the Crofts language so strictly as to deprive the trial court of all authority after it dismisses a case-or after it should dismiss a case, as in a typical nonsuit scenario.

[4] In Scott & White, our holding was limited to the