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

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

                              LESLIE MATHISON GILBERT
                                       Appellee




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



                                   APPELLANT BRIEF

      __________________________________________________________________


                               Identity of Parties and Counsel


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

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

                                                                                          1
                           TABLE OF CONTENTS
                                                                         PAGE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                                                            2
                             INDEX OF AUTHORITIES

                                                                                    PAGE

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                      4
TEXAS RULES OF CIVIL PROCEDURE                 PAGE

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

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

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




                                                      5
                           STATEMENT OF CASE

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

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

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

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

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

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

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




                                                                                 6
                            ISSUES PRESENTED

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

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

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




                                                                                 7
                            STATEMENT OF FACTS

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

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

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

judgment rendered on or about March 19, 2014.

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

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

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

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

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

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

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

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

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

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

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

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

deliver Notice of Citation to Appellant.

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

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


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

07740.

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

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

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

address to serve Appellant.

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

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

Judgment to deny a Bill of Review.

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

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

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

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

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

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

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

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

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

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

merits of the Underlying Suit.


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

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

for the Underlying Suit.

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

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

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

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

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

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

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

in the Underlying Suit.




                                                                                    10
                           SUMMARY OF ARGUMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

for the Underlying Suit.

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

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

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

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

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


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

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

in the Underlying Suit.




                                                                                 12
                                   ARGUMENT

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

      1.     General Rule to Award Attorneys’ Fees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

      2.     Prerequisites for Recovery of Attorneys’ Fee Met

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Appellee specifically deny any conditions precedent. Resultantly, all conditions

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

       3.     Prevailing Party

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

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

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

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

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

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

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

Appellant was the prevailing party.

       4.     Legal Proceeding Related to the Contract

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

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

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

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

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


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

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

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

Black’s definition. Travelers, ibid.

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

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

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

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

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

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

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

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

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

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

Bill of Review is a legal proceeding.

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

attorneys’ fees for either party in the Underlying Suit.

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

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

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

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

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

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

Underlying Suit based on the lease agreement.


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Suit without Prejudice.

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

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

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

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

Suit.

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

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

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

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

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

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

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


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

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

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

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

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

determined with a new judgment through the Bill of Review.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and therefore in the Bill of Review action.




                                                                               22
                          CONCLUSION AND PRAYER

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

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

Suit.

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

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

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

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

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

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

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

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

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

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

Appellant in the Underlying Suit based on the lease agreement.

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

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

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

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

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


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

fees could be awarded in the Underlying Suit.

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

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

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

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

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

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

attorneys’ fees for the prevailing party.




                                                                                   24
                      CERTIFICATE OF COMPLIANCE

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



                                      By: _______________________________
                                            Tom Murphy




                                                                                 25
                                       Respectfully submitted,

                                       LAW OFFICE OF TOM MURPHY




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


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


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




                                                                                   26
                               APPENDIX

Appendix #1.    Copy of the Lease Agreement

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

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

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

Appendix #5.    Appellee's First Amended Petition

Appendix #6.    Motion for Default Judgment

Appendix #7.    Final Judgment in the Underlying Suit

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

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

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

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

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

Appendix #13.   34 TexJur Equity §2

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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




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

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

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

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

9. PETS:

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

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

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

10. SECURITY DEPOSIT:

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

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

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

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


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

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

            PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION FOR BILL OF REVIEW

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

action would show the following:

                                                   I.       DISCOVERY

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

                                       II.       PARTIES AND SERVICE

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

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

                                    III.       JURISDICTION AND VENUE

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

                                      IV.       FACTUAL BACKGROUND

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

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

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

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

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

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

                                        V. BILL OF REVIEW STANDARD

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

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

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

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

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

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


                                                   VI. ARGUMENT

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

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

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

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

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

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

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

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

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

                                              VII. ATTORNEY’S FEES

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

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

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

                                                          VIII.

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


                                                        Respectfully submitted,

                                                        LAW OFFICE OF TOM MURPHY




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


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

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


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

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

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

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

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

Summary Judgment.

SUMMARY:

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

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

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

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

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

thus, summary judgment is improper.

RESPONSE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant may be justly entitled.

                                                    Respectfully submitted,

                                                    EVANS KOSUT DAVIDSON, PLLC

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




                                CERTIFICATE OF SERVICE

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

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



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


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

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

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

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

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

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

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

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

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


              d.         The amount involved and the result obtained;

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

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


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


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

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

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

       Further Afﬁant sayeth not.”



                                                  By:
                                                           John M. Davidson

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

                                                  By:                     /ll/\/LUL
                                                           Notf/jlirublic, State of Texas
APPENDIX
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                                                                                               ACCEPTED
                                                                                           03-15-00305-CV
                                                                                                   5651777
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     6/12/2015 10:17:57 AM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                      APPELLATE CASE NO. 03-15-00305-CV



                             JOHN BRYAN LANGDON
                                   Appellant

                                          v.

                           LESLIE MATHISON GILBERT
                                    Appellee




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



                             APPELLANT’S APPENDIX

   __________________________________________________________________


                            Identity of Parties and Counsel


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

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

                                       LAW OFFICE OF TOM MURPHY




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


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


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

Appendix #1.    Copy of the Lease Agreement

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

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

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

Appendix #5.    Appellee's First Amended Petition

Appendix #6.    Motion for Default Judgment

Appendix #7.    Final Judgment in the Underlying Suit

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

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

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

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

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

Appendix #13.   34 TexJur Equity §2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appendix #38.   Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010)
APPENDIX
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APPENDIX
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                                   RULE 54

                         CONDITIONS PRECEDENT

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

                         TIME FOR FILING MOTIONS

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

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

                          TIME FOR FILING MOTIONS

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

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

---------

Notes:

[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
