Trial Court Order Vacated, Appeal Dismissed, and Memorandum Opinion
filed March 28, 2013.




                                     In The


                    Fourteenth Court of Appeals

                              NO. 14-12-00123-CV



                 PARTNERS IN BUILDING, L.P., Appellant

                                        V.

                          DARLEEN EURE, Appellee


             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                       Trial Court Cause No. 918729



                     MEMORANDUM OPINION

      A plaintiff asserted a claim against the defendant for breach of a settlement
agreement. The trial court rendered judgment in the plaintiff’s favor for contract
damages, attorney’s fees for services through judgment in the trial court, and costs.
The plaintiff did not seek and did not receive any appellate attorney’s fees. After
the defendant appealed, this court affirmed the trial court’s judgment and awarded
the plaintiff “all costs incurred in this appeal.” This court neither awarded the
plaintiff any attorney’s fees, nor remanded the case to the trial court. After this
court issued its mandate, the trial court issued an order awarding the plaintiff
reasonable attorney’s fees for the prior appeal in this case, additional costs, and
attorney’s fees incurred in seeking this award in the trial court. When the trial
court issued this order, it no longer had plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment, and this court’s judgment and
mandate in the first appeal did not remand this case to the trial court. Because the
trial court lacked jurisdiction to issue this order, we vacate the order and dismiss
this appeal.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      In 2008, appellee Darleen Eure brought suit against appellant Partners in
Building, L.P., asserting the formation of a settlement agreement and seeking
$12,000 for its breach. Following a bench trial, the trial court found the parties had
formed an agreement and that Partners in Building had breached the agreement.
The trial court rendered a final judgment in favor of Eure, awarding $12,000 in
damages, reasonable attorney’s fees for services through judgment in the trial
court, and costs. Eure did not seek an award of appellate attorney’s fees, and the
trial court did not award Eure any appellate attorney’s fees in its judgment. Eure
did not appeal the trial court’s judgment, but Partners in Building did appeal. On
appeal, this court affirmed the trial court’s judgment. See Partners in Building,
L.P. v. Eure, No. 14-09-00962-CV, 2011 WL 1123644, at *6 (Tex. App.—
Houston [14th Dist.] Mar. 29, 2011, no pet.) (mem. op.) (“First Appeal”). In its
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March 29, 2011 judgment, this court, in addition to affirming the trial court’s
judgment, ordered Partners in Building “to pay all costs incurred in this appeal.”

      On June 10, 2011, the clerk of this court issued this court’s mandate in the
First Appeal. After the mandate issued, Eure filed a “Motion to Enforce Final
Judgment” in the trial court under the same trial court cause number from which
the First Appeal was taken. In this motion, Eure noted that this court had issued its
mandate and that this court had ordered Partners in Building “to pay all costs
incurred in this appeal.” Eure asserted that the costs incurred in the First Appeal
included Eure’s appellate attorney’s fees incurred in the First Appeal. Among
other relief, Eure sought an order awarding her these fees, other costs, and
attorney’s fees for preparing and asserting the motion to enforce. On October 10,
2011, the trial court signed an order granting Eure’s motion in part (“Order”). In
the Order, the trial court stated that “subsequent to and in addition to the Judgment
rendered by this court in this matter on October 9, 2009, [Eure] is awarded and
shall recover from [Partners in Building] reasonable attorney’s fees incurred to
successfully defend appeal [sic] in this matter of $5,200 and costs of $1,256.76, for
which let execution issue.” In the Order, the trial court also stated that “subsequent
to and in addition to the Judgment rendered by this court in this matter on October
9, 2009, [Eure] is awarded and shall recover from [Partners in Building] reasonable
attorney’s fees incurred to bring her Motion to Enforce Judgment in this matter of
$750.00, for which let execution issue.”

                              II. ISSUE AND ANALYSIS

      In its first appellate issue, Partners in Building asserts the trial court lacked
authority to issue the Order. Even if Partners in Building had not raised this issue,
we would inquire sua sponte into whether the trial court had jurisdiction to render

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the Order because lack of jurisdiction in the trial court would deprive this court of
jurisdiction. See Rabb Intern., Inc. v. SHL Thai Food Service, LLC, 346 S.W.3d
208, 210 n.1 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (stating that this
court may sua sponte inquire into whether it has jurisdiction over a pending
appeal).

      In this case, Eure successfully asserted a breach-of-contract claim and
obtained reasonable attorney’s fees for services through judgment in the trial court
under Texas Civil Practice and Remedies Code section 38.001. See Tex. Civ. Prac.
& Rem. Code Ann. §38.001 (West 2013). Eure asserts that attorney’s fees under
this statute may be taxed as costs of court. Under the unambiguous statutory
language, reasonable attorney’s fees awarded under this statute are not taxed as
costs of court. See id. (stating that “[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 [certain types of claims]”) (emphasis added).
Therefore, any post-judgment attorney’s fees that Eure might recover under section
38.001 would not be taxed as costs of court. See id.

      At trial, Eure did not submit proof regarding reasonable attorney’s fees for
appeal, nor did she request such fees from the trial court.         In certain cases
involving attorney’s fees taxed as costs of court, a claimant is not required to prove
the amount of her reasonable appellate attorney’s fees in the trial court. See Cahill
v. Lyda, 826 S.W.2d 932, 932–33 (Tex. 1992) (per curiam). In these cases, a
request for such fees may be made on appeal, and, if the appellate court decides
that fees should be awarded, the appellate court may remand the issue of the
amount of reasonable appellate fees to the trial court for determination. See id.;
Garza v. Slaughter, 331 S.W.3d 43, 49 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). Attorney’s fees awarded under section 38.001 are not taxed as costs of court,
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and therefore Eure’s request for post-judgment and appellate attorney’s fees under
this statute does not fall within the foregoing rule.1 As to such fee requests, Eure
was required to prove the reasonable amount of such fees during the trial of this
case in 2009, and Eure’s failure to prove these fees at trial prevents her from
recovering any fees in this regard. See Varner v. Cardenas, 218 S.W.3d 68, 69–70
(Tex. 2007) (per curiam); Kurtz v. Kurtz,                 No. 14-08-00351-CV, 2010 WL
1293769, at *8–11 (Tex. App.—Houston [14th Dist.] Apr. 6, 2010, no pet.) (mem.
op.).

        More fundamentally, on June 10, 2011, when the clerk of this court issued
this court’s mandate in the First Appeal, the trial court had lost its plenary power to
grant a new trial or to vacate, modify, correct or reform the judgment. See Tex. R.
Civ. P. 329b(d); Harris County Children’s Protective Servs. v. Olvera, 971 S.W.2d
172, 175 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). In addition, the
trial court did not have any authority to conduct a new trial or to vacate, modify,
correct, or reform the judgment based upon this court’s appellate judgment, in
which this court affirmed the trial court’s judgment without remanding any issue to
the trial court. See Olvera, 971 S.W.2d at 175–76. In this context, the trial court
still has jurisdiction to issue orders regarding enforcement of the judgment, but the
trial court lacks jurisdiction to render orders that materially change the relief
awarded in the judgment.2 See In re Akin Gump Strauss Hauer & Feld, LLP, 252


1
  Even if Eure’s request were within the scope this rule, for this rule to provide a basis for
jurisdiction in the trial court to determine the amount of post-judgment or appellate fees to award
Eure, it would have been necessary for this court to have remanded this issue to the trial court in
the First Appeal. See Harris County Children’s Protective Servs. v. Olvera, 971 S.W.2d 172,
175–76 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). But, in the First Appeal, this court
affirmed the trial court’s judgment in its entirety and did not remand any issue to the trial court.
2
 In some circumstances, a trial court may modify a judgment granting injunctive relief based
upon changed conditions, but the judgment in the case under review does not contain any
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S.W.3d 480, 493 n.20 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding);
Olvera, 971 S.W.2d at 175–76; Harris County Appraisal Dist. v. West, 708 S.W.2d
893, 896–97 (Tex. App.—Houston [14th Dist.] 1986, no writ). In the Order, the
trial court expressly stated that the amounts it awarded to Eure were “subsequent to
and in addition to the Judgment rendered by this court in this matter on October 9,
2009.” Though purporting to enforce the judgment, in the Order, the trial court
materially changed the relief awarded in the judgment by adding awards of
attorney’s fees and costs that were not awarded in the judgment. In addition, on
June 10, 2011, the clerk of this court issued the bill of costs, in which no attorney’s
fees were taxed as costs. Any dispute as to the amount of the bill of costs must be
litigated in this court, and the trial court has no authority to adjudicate disputes as
to whether an incorrect amount of court costs were taxed on appeal. 3                        See
Malekzadeh v. Malekzadeh, Nos. 14-05-00113-CV, 14-06-00341-CV, 2007 WL
1892233, at *8 (Tex. App.—Houston [14th Dist.] Jul. 3, 2007, pet. denied) (mem.
op.).

        For the foregoing reasons, we conclude that the trial court lacked jurisdiction
to render the Order.4 See In re Akin Gump Strauss Hauer & Feld, LLP, 252
S.W.3d at 493 n.20; Malekzadeh, 2007 WL 1892233, at *8; Olvera, 971 S.W.2d at


injunctive relief. See Harris County Appraisal Dist. v. West, 708 S.W.2d 893, 896 (Tex. App.—
Houston [14th Dist.] 1986, no writ).
3
  In the First Appeal, Eure filed a motion requesting that this court award her appellate fees as
costs. This court denied the motion. Eure filed another motion requesting this relief before this
court issued its opinion and judgment. Though this court did not expressly rule on the second
motion, the relief requested in the motion was not granted in this court’s opinion or judgment.
After this court issued the opinion and judgment in the First Appeal, Eure filed a motion
requesting that this court clarify its judgment and award her these fees as costs. This court
denied the motion.
4
 Because the trial court lacks such jurisdiction, we deny as moot Eure’s “Motion to Sever and
Remand,” in which she requests a remand to the trial court.
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175–76; West, 708 S.W.2d at 896–97. The proper disposition is to vacate the trial
court’s order and dismiss the appeal. See In re C.N., 313 S.W.3d 490, 491–93
(Tex. App.—Dallas 2010, no pet.) (vacating order that trial court lacked
jurisdiction to render and dismissing appeal); Gantt v. Gantt, 208 S.W.3d 27, 31
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (same as In re C.N.);
Commission for Lawyer Discipline v. Denisco, 132 S.W.3d 211, 217 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) (same as In re C.N.). Accordingly, the Order is
vacated, and this appeal is dismissed.




                                         /s/       Kem Thompson Frost
                                                   Justice



Panel consists of Justices Frost, Christopher, and Jamison.




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