                                      NO. 12-13-00223-CV

                            IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

LAVERNA SELLS,                                         §        APPEAL FROM THE
APPELLANT

V.                                                     §        COUNTY COURT AT LAW

EARL DROTT,
APPELLEE                                               §        SMITH COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Laverna Sells appeals the trial court’s judgment denying her request for an award of
attorney’s fees against Earl Drott. She raises one issue relating to the availability of attorney’s
fees. We affirm.


                                               BACKGROUND
       Drott and LaCheryl Stebbings signed an earnest money contract for the sale of real
property. Stebbings signed the contract under a power of attorney for Sells, who owned the
property. Sells refused to execute a deed to convey the property, and Drott sued her for specific
performance.     Sells filed an answer denying that she ever had a contract with Drott and
counterclaimed for attorney’s fees.
       Following a bench trial, the trial court denied Drott’s request for specific performance
and Sells’s counterclaim for attorney’s fees. The trial court then made the following findings of
fact and conclusions of law:


                                              I. Findings of Fact
           1.   The Court finds that Plaintiff Earl Drott and the Power of Attorney, LaCheryl Stebbings,
                entered into a contract for the sale of real property belonging to the Power of Attorney.
           2.   The Court finds that the contract between Plaintiff Earl Drott and the Power of Attorney
                provided for the recovery of attorney fees in the event of litigation between the parties to
                the contract.

           3.   The Court finds that Defendant LaVerna Sells did not sign the contract between Plaintiff
                Earl Drott and the Power of Attorney.

           4.   The Court finds that the Power of Attorney did not sign the contract as the agent of
                Defendant LaVerna Sells.

           5.   The Court finds that Defendant LaVerna Sells was not a party to the contract between
                Plaintiff Earl Drott and the Power of Attorney.

           6.   The Court finds that there was never an existing contract between Plaintiff Earl Drott and
                Defendant LaVerna Sells.


                                             II. Conclusions of Law

           1.   The Court concludes that Defendant LaVerna Sells was not a party to the contract, and
                thus cannot rely on any of the terms of the contract, including the attorney fee provisions.


Sells filed a motion for new trial and reconsideration of the court’s failure to award attorney’s
fees, which the trial court denied. This appeal followed.


                                  AVAILABILITY OF ATTORNEY’S FEES
       In her sole issue on appeal, Sells contends that the trial court erred in denying her request
for attorney’s fees because Drott ―brought suit with regard to the transaction described in the
contract,‖ and she was the prevailing party at trial.
Standard of Review and Applicable Law
       When awarding attorney’s fees, Texas has long followed the American Rule. MBM Fin.
Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 669 (Tex. 2009). Under this rule, litigants’
attorney’s fees are recoverable only if authorized by statute or by contract between the parties.
Intercontinental Group P’ship v. KB Home, 295 S.W.3d 650, 653 (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.                      Fitzgerald v. Schroeder
Ventures II, LLC, 345 S.W.3d 624, 627 (Tex. App.–San Antonio 2011, no pet.).                                   Unless
provided by contract or statute, a trial court has no authority to require a losing party to pay the
prevailing party’s fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex.
2006). ―[O]ne cannot enforce an advantage existing only by virtue of a contract, and at the same




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time repudiate the contract as one not binding upon him. . . .‖ Nat’l Aid Life of Okla. City,
Okla. v. Adams, 157 S.W.2d 957, 958 (Tex. App.—Eastland 1941, writ dism’d w.o.j.).
Discussion
        Sells contends that she is entitled to attorney’s fees based on the following provision of
the earnest money contract:1


        17. ATTORNEY’S FEES: The prevailing party in any legal proceeding brought under or with
        respect to the transaction described in this contract is entitled to recover from the non-prevailing
        party all costs of such proceeding and reasonable attorney’s fees.


Drott responds that because the trial court found there was never a contract between them, Sells
cannot rely on the contract for an attorney’s fee award.
        Sells does not challenge the trial court’s finding that there was ―never an existing
contract‖ between her and Drott. Accordingly, we are bound by that finding. See Sharifi v.
Steen Auto., LLC, 370 S.W.3d 126, 147 (Tex. App.—Dallas 2012, no pet.) (―Unchallenged
findings of fact are binding on the appellate court. . . .‖).
        Sells cites three cases as authority to support her contention that she is entitled to recover
attorney’s fees. Sells first cites Juarez v. Hamner, 674 S.W.2d 856 (Tex. App.–Tyler 1984, no
writ). There, this court held that a contract existed that could be rescinded. Id. at 862. The
second case is Fitzgerald v. Schroeder Ventures II LLC, 345 S. W.3d 624 (Tex. App.—San
Antonio 2011, no pet.). That case involved a lawsuit based on a contract for the sale of real
estate. Id. at 626. After the sale closed, the purchaser sued the sellers and their broker for fraud
and other causes of action arising out of the sales transaction. Id. The sellers and their broker
successfully defended the lawsuit and recovered attorney’s fees because they qualified as
―prevailing part[ies]‖ under the earnest money contract. Id. at 631. The third case is Aguiar v.
Segal, 167 S.W.3d 443 (Tex. App.–Houston [14th Dist.] 2005, pet. denied). In that case, the
court determined that one of the parties had a right to recover attorney’s fees after a contract had
been terminated due to a breach. Id. at 456.
        In each of these cases, there was a binding contract between the parties. See generally
Fitzgerald, 345 S.W.3d 624; Aguiar, 167 S.W.3d 443; Juarez, 674 S.W.2d 856. Here, there was
no binding contract between Sells and Drott. Sells has not cited, nor have we found, any

        1
            Sells does not contend that she is entitled to attorney’s fees under any statute.


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authority supporting the proposition that an individual can recover attorney’s fees pursuant to a
provision in a contract to which she was not bound, or deemed a beneficiary. Because one
cannot enforce an advantage of a contract while at the same time claim that the contract is not
binding, the trial court did not err by denying Sells’s request for attorney’s fees. See Nat’l Aid,
157 S.W.2d at 958. Accordingly, we overrule Sells’s sole issue.


                                                    DISPOSITION
         Having overruled Sells’ sole issue, we affirm the judgment of the trial court.


                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered January 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          JANUARY 31, 2014


                                          NO. 12-13-00223-CV


                                          LAVERNA SELLS,
                                             Appellant
                                                V.
                                           EARL DROTT,
                                              Appellee


                                Appeal from the County Court at Law
                           of Smith County, Texas (Tr.Ct.No. 52,806-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged

against the appellant, LAVERNA SELLS, for which execution may issue, and that this decision

be certified to the court below for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
