                                            NO. 07-03-0350-CV

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                 AT AMARILLO

                                                   PANEL A

                                                 MAY 10, 2005

                                 ______________________________


                               RICHARD LOUGHRIDGE, APPELLANT

                                                      V.

                                     GEORGE BISHOP, APPELLEE


                              _________________________________

            FROM THE 284TH DISTRICT COURT OF MONTGOMERY COUNTY;

                NO. 01-06-03859-CV; HONORABLE JOHN DELANEY, JUDGE

                                _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                        MEMORANDUM OPINION


      Presenting only one issue, Richard Loughridge challenges a judgment rendered

after a jury trial that George Bishop do have and recover attorney’s fees in the amount of

$125,5201 from Loughridge. By his issue, Loughridge contends the trial court erred by


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          Plu s ad ditional fees up on appeal.
awarding judgment against him for Bishop’s attorney’s fees. We reverse and render in part

and affirm in part.


       Because Loughridge does not present an issue questioning the sufficiency of the

evidence to support the judgment, we limit our review of the evidence and proceedings in

the trial court to those matters material to our consideration of the issue and decision. On

March 6, 1996, Oscar and Juanita Locke leased the subject real estate to Loughridge for

a term commencing December 1, 1995, continuing until November 20, 2000. The written

lease also granted Loughridge a right of first refusal to purchase the premises if the lessors

decided to sell the property. After the lessors sold the property to Walter Jolley and the

trustee conveyed the property to Bishop on September 5, 1997, Loughridge sought to

enforce his right of first refusal. Loughridge brought this action against the original lessors

and Bishop seeking damages against Bishop for the alleged intentional interference with

his contractual right to purchase the property. By his counterclaim, Bishop sought to

recover damages for Loughridge’s wrongful occupation of the premises after termination

of the lease as a holdover tenant. Also, Bishop sought attorney’s fees expressly pleading

section 38.001 of the Texas Civil Practice and Remedies Code.


       Before the charge was prepared and submitted to the jury, the parties agreed to

waive a jury trial as to the award of attorney’s fees and agreed that the amount thereof and

the entitlement thereto would be determined by the trial judge. The jury returned answers

unfavorable to Loughridge on his claims against the lessors and Bishop. Although the jury


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found that Loughridge failed to comply with the lease agreement, by its answer to question

seven, it found Bishop suffered no actual economic damages as a result of Loughridge’s

failure to comply with the lease agreement.2 After considering post-trial motions, the trial

court then rendered judgment that neither party recover any damages against the other

party but that Bishop should recover his attorney’s fees of $125,520 through the trial court

and fees for appeals and ordered that Loughridge immediately vacate the property.


        By his first issue, Loughridge contends the trial court erred in awarding Bishop

attorney’s fees. We agree. Because Bishop’s claim to an award of attorney’s fees is based

on section 38.001 of the Code and Loughridge does not challenge the reasonableness or

amount of the fees awarded, the availability of attorney’s fees is a question of law. Holland

v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). Accordingly, we need not give any

particular deference to the legal conclusion of the trial court and will apply a de novo

standard of review. See Eller Media Co. v. City of Houston, 101 S.W.3d 668, 674 (Tex.

App.--Houston [1st Dist.] 2003, no pet.).




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         Qu estion No. 7.
        What sum of money, if any, if paid now in cash, would fairly and reasonably compensate George
Bishop for his damages, if any, that resulted from R ichard Loughridge’s failure to comply with the Lease
Agreem ent?
        Con sider the follow ing elem ents of da ma ges, if any, an d non e other.
        The difference between the amount paid and the amount agreed to be paid under the Lease
        Agreem ent.
        Do no t add any am ount for interest on damage s, if any.
        Answ er in dollars and cents for damage s, if any.
        Answer: $      0




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       As material here, section 38.001 of the Code provides:
       A person may recover reasonable attorney’s fees from an individual or
       corporation, in addition to the amount of a valid claim and costs, if the claim
       is for:
       (8) an oral or written contract.


(Vernon 1997) (Emphasis added).


       In Green Intern., Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997), the Court held that

entitlement to an award of attorney’s fees under section 38.001 is conditioned upon the

party’s (1) successful prosecution of a cause of action for which attorney’s fees are

recoverable and (2) an award of damages. The Court concluded its discussion of the

attorney’s fees question by expressly stating “[b]ecause Green failed to recover damages

on its breach of contract claim, Green was not entitled to recover attorney’s fees under

Section 38.001.” Id.; State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.

1995). Here, based on the jury finding that Bishop did not sustain any economic damages,

the trial court did not make any award of damages to him.


       We have not overlooked Bishop’s argument presented by his response to

Loughridge’s post-trial motion for judgment, whereby he contended that similar to an action

for forcible entry and detainer or trial to the right of possession of property, he was entitled

to an order of immediate possession. Citing Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d

787 (Tex.App.--Houston [1st Dist.] 2001, no pet.), Bishop argues here that the order that

Loughridge immediately surrender possession of the property was sufficient under section


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38.001 to support an award of attorney’s fees. Even if the relief ordered would authorize

an award of attorney’s fees under section 38.001, a question we do not decide, because

Bishop did not seek a writ of possession or forcible entry and detainer by his pleadings, the

question was not raised by the trial court pleadings for determination. See Murray v. O &

A Express, Inc., 630 S.W.2d 633, 636-37 (Tex. 1982); Cunningham v. Parkdale Bank, 660

S.W.2d 810, 813 (Tex. 1983). See also Tex. R. Civ. P. 301. Loughridge’s sole issue is

sustained.


       Accordingly, that part of the judgment awarding Bishop attorney’s fees is reversed

and judgment is hereby rendered that Bishop take nothing on the award of attorney’s fees;

in all other respects, the judgment is affirmed.



                                          Per Curiam


Johnson, C.J., not participating.




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