                                NUMBER 13-13-00098-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


    IN RE DR. FRANK MORA AND FIRST VISTA INVESTMENTS, LLC


                          On Petition for Writ of Mandamus
                          and Motion for Emergency Relief.


                                MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez1

       By petition for writ of mandamus, relators Dr. Frank Mora and First Vista

Investments, LLC (“First Vista”), contend in one issue that the underlying trial court

judgment is interlocutory and, therefore, the trial court erred in denying their motion to

modify the judgment to render it final and appealable. Concluding that the judgment at

issue is final, we deny the petition for writ of mandamus.




       1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
                                      I. BACKGROUND

       First Vista and Mora, as guarantor, leased 1800 Main Place in McAllen, Texas,

from TCP Main Place Partners, LP (“TCP”). First Vista thereafter brought suit against

TCP alleging, inter alia, that it had misrepresented the size of the area subject to lease.

TCP filed a counterclaim against First Vista for failure to make payments under the

lease and filed a third party claim against Mora as guarantor of the lease. Mora filed a

general denial to TCP’s counterclaim. The prayer of his general denial stated:

       Cross Defendant prays the Court, after notice and hearing or trial, enters
       judgment in favor of Cross Defendant, awards Cross Defendant the costs
       of court, attorney’s fees, and such other and further relief as Cross
       Defendant may be entitled to in law or in equity.

       The dispute was ultimately tried to a jury, which found that First Vista and Mora

breached the commercial lease. On June 21, 2011, the trial court entered judgment on

the verdict in favor of TCP jointly and severally against First Vista and Mora in the

amount of $702,299.16, along with attorney’s fees and interest. The judgment, entitled

“Final Judgment,” provided that it was “final, disposes of all claims and all parties, and is

appealable.” In the judgment, the trial court also “order[ed] execution to issue for this

judgment.” First Vista and Mora did not appeal.

       TCP began efforts to collect the judgment and issued post-judgment discovery to

First Vista and Mora. In March of 2012, TCP filed a motion for contempt against First

Vista and Mora on grounds they had failed to comply with an order requiring them to

produce post-judgment discovery. On May 8, 2012, First Vista and Mora filed a motion

to modify the judgment on grounds that the judgment was not final because it did not

dispose of Mora’s request for attorney’s fees. The trial court did not immediately rule on

the motion to modify, and the parties continued to dispute the extent and scope of post-

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judgment discovery. In July of 2012, the trial court issued an order compelling First

Vista and Mora to produce records in response to requests for production and ordered

Mora to appear for deposition. On January 23, 2013, the trial court denied the motion to

modify the judgment.       The parties continued to engage in discovery matters.        In

December of 2012, TCP filed a first supplemental motion for contempt, contending that

First Vista and Mora had failed to comply with the order rendered in July requiring the

production of documents. In January of this year, the trial court issued a show cause

order requiring First Vista and Mora to appear and address their alleged failure to

comply with the trial court’s orders requiring discovery. The record currently before us

does not indicate the trial court’s ruling on this issue.

       On February 13, 2013, relators filed this original proceeding. In conjunction with

their petition for writ of mandamus, relators filed a motion for emergency relief

requesting that we stay the underlying trial court proceedings. By order issued that

same day, we granted the request for emergency relief and ordered the trial court

proceedings, including any actions regarding enforcement of the judgment at issue

herein, to be stayed. We further requested that TCP file a response to the petition for

writ of mandamus. On February 14, 2013, TCP filed a motion for reconsideration of the

stay, its response to the petition for writ of mandamus, and a motion for sanctions on

grounds the petition was frivolous.

                                   II. STANDARD OF REVIEW

       To be entitled to the extraordinary relief of a writ of mandamus, the relators must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.



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proceeding).      The relators have the burden of establishing both prerequisites to

mandamus relief.          In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41

(Tex. 1998) (orig. proceeding).

                                             III. ANALYSIS

        By one issue, relators contend that the trial court abused its discretion in denying

their motion to modify the judgment when the judgment did not dispose of all claims and

parties, “thereby making the judgment an interlocutory judgment that cannot be

appealed.” Relators specifically contend that the judgment at issue failed to address

Mora’s pending claim for attorney’s fees as recited in his prayer. 2 As stated by the

Texas Supreme Court, “[a] claim for attorney's fees is not an affirmative claim where it is

based solely on the defense against the other party's claims but is an affirmative claim

where it is based on an independent ground or as a sanction.” Villafani v. Trejo, 251

S.W.3d 466, 470 (Tex. 2008).              Accordingly, a request for attorney's fees in the

defendant's answer and in the pleading's prayer, not made in connection with an

affirmative claim alleging that the opposing party has independently committed a breach

of the party's contract, does not constitute a claim for affirmative relief.                 See Leon

Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 578 (Tex. App.—San

Antonio 1997, no pet.); see also Johnson v. Hope Vill. Apartments, No. 09-09-00526-

CV, 2010 Tex. App. LEXIS 8619, at **9–10 (Tex. App.—Beaumont Oct. 28, 2010, pet.

denied) (mem. op.). The provisions of the civil practice and remedies code providing for


        2
          Relators also argue that Mora did not appear at the trial of this case as a party defendant, but
merely as a “witness,” and argue that the judgment does not indicate that he was present at trial or how
his claims were disposed. In response, TCP points out that Mora was represented at the trial of this
cause by counsel

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the recovery of attorney’s fees in breach of contract cases do not provide for recovery of

attorneys' fees by defendants who only defend against a plaintiff's contract claim and do

not present their own contract claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001

(West 2008); Am. Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex. 1986) (holding

defendant could not recover attorneys' fees under predecessor to section 38.001 when

defendant did not present contract claim); see also, e.g., Polansky v. Berenji, No. 03-11-

00592-CV, 2012 Tex. App. LEXIS 10180, at **10–13 (Tex. App.—Austin Dec. 7, 2012,

no pet.) (op.); Brockie v. Webb, 244 S.W.3d 905, 910 (Tex. App.—Dallas 2008, pet.

denied) (“Section 38.001 does not provide for attorney's fees in the pure defense of a

claim.”); Energen Res. MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 558 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied) (holding defendant that did not present its own

claim under chapter 38 could not recover attorneys' fees).

       Mora’s answer does not include any affirmative claims against TCP for an

alleged breach of the lease. Moreover, the answer contains no analysis or citation

supporting Mora’s request for attorney's fees or any statement explaining the basis of

his claim for attorney's fees. We conclude that Mora’s answer does not contain a

statement of an affirmative claim for relief as contemplated by Rule 47 of the Texas

Rules of Civil Procedure. See TEX. R. CIV. P. 47 (governing pleadings containing claims

for relief).   Therefore, Mora had no pending independent claim for attorney's fees

against TCP when the matter was submitted to the jury or when the trial court entered

judgment in this case. Thus, the judgment at issue resolved all pending claims and

parties.




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      Further, even if we were to conclude otherwise and decide that Mora had

pleaded an affirmative ground for the award of attorney’s fees, the judgment rendered in

this case would nevertheless be final. The Texas Supreme Court employs a “long

recognized” presumption of finality for judgments that follow a trial on the merits.

Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010) (per curiam); Moritz v. Preiss,

121 S.W.3d 715, 718 (Tex. 2003); N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893,

895 (Tex. 1966). The presumption originated in Aldridge and states:

      When a judgment, not intrinsically interlocutory in character, is rendered
      and entered in a case regularly set for a conventional trial on the merits,
      no order for a separate trial of issues having been entered pursuant to [our
      procedural rules], it will be presumed for appeal purposes that the Court
      intended to, and did, dispose of all parties legally before it and of all issues
      made by the pleadings between such parties.

400 S.W.2d at 897–98. Under this presumption, “any judgment following a conventional

trial on the merits creates a presumption that the judgment is final for purposes of

appeal.” Vaughn, 324 S.W.3d at 561; see also Nguyen v. Nguyen, 355 S.W.3d 82, 87

(Tex. App.—Houston [1st Dist.] 2011, pet. denied); Good v. Baker, 339 S.W.3d 260,

265 (Tex. App.—Texarkana 2011, pet. denied). A judgment following a conventional

trial on the merits need not dispose of every party and claim for the Aldridge

presumption of finality to apply. See Vaughn, 324 S.W.3d at 561.

      Moreover, in Lehmann v. Har-Con Corp., the supreme court explained that the

language of an order or judgment can make it final, even though it should have been

interlocutory, if that language expressly disposes of all claims and all parties.        39

S.W.3d 191, 205 (Tex. 2001).       Where the intent to finally dispose of the case is

unequivocally expressed in the words of the order itself and is clear, the order is final

and appealable even if the record does not provide an adequate basis for rendition of

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judgment. Id. at 200. The court suggested that a statement like, “[t]his judgment finally

disposes of all parties and all claims and is appealable,” would leave no doubt about the

court's intention to finally dispose of the case. Id. at 206. The supreme court held that

an express adjudication of all parties and claims in a case is not interlocutory merely

because the record does not afford a legal basis for the adjudication, and in those

circumstances, the order must be appealed and reversed. Id. at 204.

       In the instant case, the judgment was entered after a full trial on the merits and is

therefore entitled to a presumption of finality under Aldridge.       The language of the

judgment in this case clearly and unequivocally indicates that it is intended to be final. It

is entitled “Final Judgment” and provides that “[t]his judgment is final, disposes of all

claims and all parties, and is appealable.” See In re Daredia, 317 S.W.3d 247, 248–49

(Tex. 2010) (orig. proceeding).       We conclude that the judgment by its clear terms

disposed of all claims and parties and was therefore final. Accordingly, the trial court

did not abuse its discretion in refusing to modify the judgment. We overrule relators’

sole issue.

                                  IV. MOTION FOR SANCTIONS

       We next address TCP’s motion for sanctions against relators. TCP contends that

relators’ petition for writ of mandamus was “clearly groundless” and brought “solely for

delay.” In this regard, TCP notes that relators failed to point out the language in the

judgment that stated that the judgment was final and argued instead in their petition that

the judgment was interlocutory because it did not include a “Mother Hubbard” provision

stating that “all relief not granted is denied.”




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       We have carefully considered these issues and consider the matters alleged to

be of some concern. In this regard, we note that the record reflects that relators entered

an agreed partial judgment on TCP’s action for garnishment on the judgment subject to

attack herein. It is arguably inconsistent to agree to garnishment based on a judgment

and simultaneously contend that the judgment is not final. Nevertheless, based on our

review of the pleadings and record, at the present time, we deny TCP’s request for

sanctions. We are confident that the trial court will take any steps deemed necessary to

ensure that the parties and their counsel strictly comply with their ethical and

professional obligations in further proceedings below.

                                      V. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus and the response thereto, is of the opinion that relators have not shown

themselves entitled to the relief sought. Accordingly, the stay previously issued in this

matter is lifted. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order

granting temporary relief is effective until the case is finally decided.”). TCP’s motion for

reconsideration of the stay order is dismissed as moot.           The petition for writ of

mandamus is denied. As previously stated, TCP’s motion for sanction is denied.



                                                     ___________________
                                                     ROGELIO VALDEZ
                                                     Chief Justice

Delivered and filed the
28th day of February, 2013.




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