                                                                                     ACCEPTED
                                                                                 01-14-00299-CV
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                             6/4/2015 2:47:18 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                            No. 01-14-00299-CV

                     IN THE COURT OF APPEALS              FILED IN
                                                   1st COURT OF APPEALS
                 FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
                          HOUSTON, TEXAS           6/4/2015 2:47:18 PM
                   _______________________________ CHRISTOPHER A. PRINE
                                                              Clerk
                            WWW.URBAN, INC.,

                                Appellant,

                                    v.

                            CHRIS DRUMMOND,

                                 Appellee

                      ____________________________

            APPELLANT’S REPLY TO RESPONSE TO
     SUPPLEMENTAL BRIEF ADDRESSING RECENT CASE LAW
                _____________________________


Pamela C. Niemann                 R. Tate Young
State Bar No. 00783880            State Bar No. 22207100
13 Cecil Dr.                      Tate Young Law Firm
Woodville, Texas 75979            1001 West Loop South, Suite 700
(409) 331-0333 (Tel./Fax)         Houston, Texas 77027
ice3@sbcglobal.net                (713) 626-7112
                                  (713) 626-7113 (Fax)
                                  tyoung@tateyounglawfirm.com

                                  ATTORNEYS FOR APPELLANT
                                  WWW.URBAN, INC.




                                    1
      Www.Urban, Inc. (“Urban”) files this Reply to Drummond’s Response to

Urban’s Supplemental Brief Regarding New Case Law, addressing not just the

Zuehl case already discussed, but two new cases decided by this Court last week

that also have a bearing on this case.



                       ARGUMENT AND AUTHORITIES

I.    Drummond’s contention that the Zuehl case makes a distinction between
      a claimant in a breach of contract claim and a defendant is of no use to
      him in this case where he unsuccessfully pursued four third-party claims
      and ten counterclaims for affirmative relief.

      Drummond’s claim that there is a “watershed distinction” between the

standards for determining whether a party prevailed for purposes of recovering

attorney’s fees, based on whether the party is a defendant or a plaintiff,

mischaracterizes this Court’s opinion in Zuehl Land Development v. Zuehl Airport

Flying Community Owners Ass’n, No. 01-14-00562-CV, 2015 WL 1827570 at *6

(Tex. App. – Houston [1st Dist.] April 21, 2015, no pet. h.) (not yet released for

publication);   Drummond’s      Response       to   Appellant’s   Supplemental   Brief

(“Response”) at 2. There is no mention in Zuehl of any defendant filing any

counterclaim, so the only party seeking any affirmative relief there was the plaintiff.

The question of whether or not the defendant prevailed was not before the court so


                                           2
of course the Zuehl court analyzed whether the plaintiffs had recovered affirmative

relief to support the award of attorney’s fees. Id. at *3.

      There is more than a touch of irony in Drummond’s argument that should be

allowed to take advantage of a purported separate standard applicable only to

defendants.    (Response at 2).      It was Drummond, as counter-plaintiff, who

transformed this case from a simple contract suit for unpaid commissions into a

complex morass of countersuits, third-party claims, claims against opposing

counsel, and even an attempted class action against Urban and its primary officers,

in which Urban’s statewide business as a buyer’s agent in the real estate industry

was put at risk. (Appellant’s Brief at 16-17). Drummond additionally attempted to

invalidate the standard form buyer’s representation agreement on which much of

Urban’s business (and the business of many Texas brokers) depends. (CR 427).

Having refused reasonable settlement offers and engaged in an aggressive counter-

assault on Urban, its key players, the Texas Association of Realtors and its

promulgated forms, and even Urban’s counsel that grossly inflated the attorney’s

fees of both parties, Drummond should not now be allowed to avoid his contractual

duty to pay Urban’s attorney’s fees by taking refuge in a purported separate standard

applicable only to nominal defendants. (RR 4:65) (settlement offer seeking only

$500 in attorney’s fees).

                                           3
      Instead, with respect to the standard for defendants who seek attorney’s fees

as the prevailing party, this Court should be guided by the observation that the Texas

Supreme Court went out of its way to make in Intercontinental -- that a defendant

like Drummond, who is found to have breached a contract but is not required to remit

damages, arguably has not prevailed at all. 295 S.W.3d at 659 and n. 3. Although

the issue was not before it, that Court raised this question – “If ‘receiving no

damages’ means the plaintiff did not prevail (as the court held in that case), does

‘remitting no damages’ necessarily mean the breaching defendant prevailed?” Id.

The high court postulated that it would not, because “some might argue” that the

corollary to the rule that the plaintiff must obtain relief to be the prevailing party

would be that “a finding of ‘no breach’ is required for defendants --- that is, a desired

finding on breach is insufficient for plaintiffs but indispensable for defendants.” Id.

Thus, even if there were a different standard for defendants, Drummond cannot be

said to have been “fully vindicated” when he was found to be in breach of the

contract. (CR 2206).

      Alternatively, if this Court agrees that Drummond was “fully vindicated” as

to Urban’s claim for commissions, then Urban was equally or more “vindicated”

when it defeated Drummond’s efforts to invalidate that standard form contract and

thereby preserve its business and is also entitled to recover attorney’s fees in the

                                            4
amount determined by the jury to be reasonable and necessary. Like the landowners

in Zuehl who obtained a judgment prohibiting the building of an offending fence,

Urban obtained a summary judgment ruling that preserved the validity of the very

contract that secures its right to commissions as a buyer’s agent. See Zuehl at *5, 6.

In that sense, Urban cannot be said to have “obtained nothing of value” when it

defeated Drummond’s counter-offensive. Id. at *4. Rather, Urban has as much

right, if not more, to recover attorney’s fees as Drummond. See STS Gas Services v.

Seth, No. 13-05-463-CV, 2008 WL 152229 (Tex. App. – Corpus Christi 2008, no

pet.) (mem. op.) (not designated for publication) (plaintiff may recover attorney’s

fees under contractual fee provision for prevailing on defendant’s counterclaim).

         Finally, Drummond has a higher standard to meet than the landowners did in

Zuehl.      Even if he were to qualify as a prevailing party, he can only recover

attorney’s fees from a “non-prevailing party” according to the express terms of the

contract. Urban’s success in defeating Drummond’s host of third-party claims and

counterclaims also defeats Drummond’s right to recover his attorney’s fees. See

Appellant’s Brief at 38-39.




                                          5
II.   In an opinion released last week, this Court protected the prevailing
      party’s right to attorney’s fees when the legal requisites are met,
      reversing a trial court’s judgment denying attorney’s fees.

      This Court recently recognized once again that awarding attorney’s fees to a

prevailing party is mandatory when the legal requisites are met. Trinh v. Elmi, No.

01-14-00204-CV, 2015 WL 3424373 (Tex. App. – Houston [1st Dist.] May 28, 2015,

no pet. h.) (mem. op.) (not yet released for publication). In that case, a trial court’s

failure to award fees based on a party’s successful quantum meruit claim was

reversible error, despite the fact that the jury had awarded zero attorney’s fees. Id.

at *4, 5 (fee award mandatory under TEX. CIV. PRAC. & REM. CODE §38.001(1)-(3)

mandatory if there is proof of reasonableness of fees). This case presents an even

more egregious error because of the groundless pleadings filed by Drummond, one

that is easier for this Court to remedy, as the jury in this case did determine the

amount of Urban’s reasonable and necessary attorney’s fees. (CR 2196). Urban

has established its right to attorney’s fees as the prevailing party for the reasons set

forth in Appellant’s Brief, pp. 51-52. Like Chapter 38, the statute that mandated an

award of fees in Trinh, both the terms of the contract and the statutes invoked in

Urban’s motion for sanctions mandate that this Court reverse the trial court’s

judgment and render judgment that Urban recover the fees determined by the jury.

(Appellant’s Brief at 52-75).

                                           6
III.   This Court’s recent decision in Guzder underscores the importance of
       protecting attorneys from liability for actions taken in the course of
       representing their clients and thereby confirms the gross impropriety of
       Drummond’s suit against opposing counsel, for which the trial court
       should have imposed sanctions.

       In another case issued last week, this Court noted once again that “’an

attorney’s conduct is not independently actionable by an opposing party to the suit

if the conduct is part of the discharge of the lawyer’s duties in representing his or

her client . . . . even if the attorney’s conduct is wrongful in the context of the

underlying lawsuit.” Guzder v. Haynes and Boone, No. 01-13-00985-CV, 2015 WL

3423731 at *(Tex. App. – Houston [1st Dist.] May 28, 2015, no pet. h.) (not yet

released for publication) (mem. op.). The Guzder opinion provides yet another

strong authority for reversing the trial court’s erroneous denial of attorney’s fees as

a sanction for the groundless suit Drummond filed against opposing counsel in bad

faith and for the purposes of harassment, particularly because Drummond’s counsel

openly admitted that he did so in an effort to disqualify his opposing counsel and to

gain an advantage in the litigation. Id. at *4; Appellant’s Brief at 66-67 (citing RR

4:73 (“the notion was that if I raise the risk associated with litigation, [opposing

counsel] might back down. And that’s a form of defense for a contract.”) and CR

2241)). How could filing suit against opposing counsel be considered a legal defense

to the enforceability of a contract for which the harassing party is entitled to recover

                                           7
attorney’s fees? To the contrary, Drummond’s filing of such a bad faith suit with

the admitted purpose of harassment entitles Urban, the party being harassed, to

recover its attorney’s fees under the rules and statutes put into place by the Texas

Legislature to deter just this kind of bad faith conduct on the part of litigants and

their counsel. See TEX. R. CIV. P. 13, 215; TEX. CIV. PRAC. & REM. CODE § 10.001.

      This Court should reverse and render judgment on that point, awarding Urban

the attorney’s fees incurred in defending Drummond’s suit against its opposing

counsel based on the uncontroverted evidence in the record.



                                       Respectfully submitted,


                                       By: _/s/ Pamela Niemann___
                                             State Bar No. 00783880
                                             13 Cecil Dr.
                                             Woodville, TX 75979
                                             Tel./Fax: 409-331-0333
                                             ice4@sbcglobal.net

                                              R. Tate Young
                                              Tate Young Law Firm
                                              1001 West Loop South, Suite 700
                                              Houston, Texas 77027

                                              ATTORNEYS FOR APPELLANT




                                          8
                         CERTIFICATE OF SERVICE

      In compliance with Texas Rule of Appellate Procedure 9.5, the undersigned
hereby certifies that a true and correct copy of the foregoing instrument was served
upon the following parties by e-filing, on this 4th day of June, 2015:

Mr. Andrew M. Greenwell                      Representing Appellee Drummond
Harris & Greenwell
One Shoreline Plaza
800 N. Shoreline Blvd., Suite 2800-S
Corpus Christi, Texas 78401


                                             __Pamela C. Niemann__




                                         9
