







Affirmed and Opinion filed February 7, 2006








Affirmed and Opinion filed February 7, 2006.
 
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-04-00687-CV
_______________
 
MARY JO NASCHKE
d/b/a M. J. NASCHKE PUBLIC RELATIONS, Appellant
 
V.
 
GULF COAST CONFERENCE 
d/b/a INTERNATIONAL WELLNESS CONFERENCE
and BOB KIBLER, INDIVIDUALLY, Appellees
________________________________________________________
 
On Appeal from County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 779,174
________________________________________________________
 
O P I N I O N
 
Mary
Jo Naschke d/b/a M. J. Naschke Public Relations (ANaschke@) appeals a judgment notwithstanding
the verdict (AJNOV@) granted in favor of Gulf Coast
Conference d/b/a International Wellness Conference (AGulf Coast@) and Bob Kibler, individually, on
the ground that the law allows recovery of attorney=s fees incurred due to a third party=s wrongful act.  We affirm.




As
relevant to this appeal, Naschke was hired by Gulf Coast to arrange advertising
for its International Wellness Conference (the Aconference@). 
Naschke contracted with the Houston Chronicle (the AChronicle@) to run newspaper advertisements for
the conference.  The Chronicle brought
suit against Gulf Coast, its President, Kibler, and Naschke, seeking payment
for the advertisements.  Naschke
countersued the Chronicle and filed cross-claims against Gulf Coast and
Kibler.  The claims asserted by and
against the Chronicle were settled before trial, and Naschke obtained a jury
verdict against Gulf Coast and Kibler for the attorney=s fees she incurred in the
preparation and trial of this lawsuit. 
However, the trial court granted a JNOV in favor of Gulf Coast and
Kibler and entered a take-nothing judgment against Naschke.
A
trial court may grant a judgment notwithstanding the verdict if there is no
evidence to support one or more of the jury findings on issues necessary to
liability.  Tiller v. McLure, 121
S.W.3d 709, 713 (Tex. 2003).  No evidence
exists when, among other things, the court is barred by rules of law from
giving weight to the only evidence offered to prove a vital fact.  Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897, 903 (Tex. 2004).
Naschke=s sole issue on appeal contends that
the trial court erred in granting the JNOV because Texas law allows the
equitable recovery of attorney=s fees incurred due to a third party=s wrongful act, and the evidence in
this case supports the jury verdict against appellees on that claim.
The
trial court=s charge to the jury (the Acharge@) contained the following
instruction:
Unless provided by statute or by contract of the
parties, attorney=s fees incurred by a party to litigation are not
recoverable against an adversary, either in tort or in a suit upon a
contract.  However, where the natural and
proximate consequences of a wrongful act has been to involve a plaintiff
in litigation with others, there may, as a general rule, be a recovery in
damages of the reasonable expenses incurred in such prior litigation, against
the author of such acts, including the compensation of attorney=s fees; but such expenses must be the natural and
proximate consequences of the injury complained of and must have been incurred
necessarily and in good faith, and the amount thereof must be reasonable.
 




(emphasis
added).  Questions 1 and 2 then asked the
jury whether Gulf Coast and Kibler, respectively, committed a wrongful act that
proximately caused the Chronicle to file a lawsuit against Naschke.  The jury answered Ayes@ to each question.  The damage question associated with questions
1 and 2 asked for the amount of a reasonable fee for the necessary services of
Naschke=s attorney in this case, to which the
jury responded A$23,500.@  Gulf Coast objected
to the charge and sought its JNOV on the ground, among others, that this court
has declined to adopt an equitable exception to the rule requiring a statutory
or contractual basis for recovery of attorney=s fees.[1]
Section
914 of the Restatement (Second) of Torts provides:
(1)       The
damages in a tort action do not ordinarily include compensation for attorney
fees or other expenses of the litigation.
(2)       One who
through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled
to recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier action.
 
Restatement (Second) of Torts ' 914 (1979).  In Turner,
the Texas Supreme Court acknowledged the theory of recovery set forth in
section 914 but held that its requirements were not met by the facts of that
case and did not otherwise expressly adopt or reject that theory.  See Turner v. Turner, 385 S.W.2d 230,
234 (Tex. 1964).  Since then, the Court
has not again addressed the possible application of that rule, and Texas
intermediate courts of appeals opinions have differed regarding whether it is applicable
under Texas law and, if so, its scope.[2]




Because
we are bound to follow the existing laws of the State, we are not at liberty to
adopt a theory of recovery that has not been enacted by the Legislature or
adopted by the Texas Supreme Court. 
Moreover, even if section 914 had been adopted in Texas, it allows
attorney=s fees to be recovered only where
they have been incurred due to the tort of another,[3]
as contrasted from any Awrongful act,@ as provided in the charge. 
Because the charge did not define Awrongful act,@ it essentially authorized the jury
to award attorney=s fees for any act it considered wrongful, whether or
not that act is deemed wrongful under the law (and it would thereby effectively
preclude any appellate review of the evidence to support such a verdict).  Because Naschke=s sole issue cites no binding or
well-reasoned authority (or rationale) that supports allowing the recovery
authorized by the charge in this case, it fails to demonstrate that the trial
court erred in granting the JNOV.  Therefore,
Naschke=s issue is overruled, and the
judgment of the trial court is affirmed.
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Opinion filed February 7, 2006.
Panel consists of
Justices Edelman, Seymore, and Guzman.
 
 




[1]           See
Martin-Simon v. Womack, 68 S.W.3d 793, 797-98 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).


[2]           See
generally James Michael Stanton, Recovering Attorney=s Fees in Equity Under Texas Law: Why Some Texas
Courts of Appeal Have It Wrong, 29 T. Marshall L.Rev. 243 (2004).


[3]           Restatement (Second) of Torts ' 914(2).


