Opinion issued February 19, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00953-CV
                           ———————————
   CLARENCE STUMHOFFER, HEIR OF THE ESTATE OF ROBERT
         BRIAN STUMHOFFER, DECEASED, Appellant
                                        V.
            DANIEL PERALES AND ERIN PERALES, Appellees



                   On Appeal from the Probate Court No. 4
                            Harris County, Texas
                      Trial Court Case No. 390174-401


                         OPINION ON REHEARING

      Appellees, Daniel and Erin Perales (collectively, “Perales”), sued the

appellant, the independent administrator and heir of the Estate of Robert Brian

Stumhoffer (“the Estate”), seeking to recover attorney’s fees and costs incurred in
defending an adverse claim to title on real property sold to Perales by Robert

Stumhoffer, decedent. In a single issue, the Estate challenges the trial court’s grant

of summary judgment in favor of Perales. On September 25, 2014, we issued an

opinion sustaining the Estate’s challenge to the trial court’s grant of summary

judgment.

      Perales subsequently moved for rehearing.          We deny the motion for

rehearing. However, we withdraw our September 25, 2014 opinion and judgment

and issue this opinion and judgment in their place.        Our disposition remains

unchanged.

      We reverse and remand.

                                    Background

      In December 2007, Perales purchased real property at 5246 Piping Rock in

Houston, TX (“the Property”) from Stumhoffer pursuant to a general warranty

deed. The deed provided, in relevant part, that Stumhoffer conveyed the Property

to Perales and stated:

      TO HAVE AND TO HOLD the above-described premises, together
      with all and singular the rights and appurtenances thereto in anywise
      belonging unto said GRANTEE [Perales] and GRANTEE’S heirs and
      assigns forever, GRANTOR [Stumhoffer] does hereby bind
      GRANTOR and GRANTOR’S heirs, executors, and administrators to
      warrant and forever defend, all and singular, the said premises unto
      the said GRANTEE and GRANTEE’S heirs and assigns, against
      every person whomsoever lawfully claiming, or to claim the same, or
      any part thereof.



                                          2
        Perales had the Property surveyed and learned that the property line ran

seven feet east of the existing fence that divided his yard from that of his neighbor,

Allen Lewis. Perales informed Lewis of his intention to move the fence and install

a sprinkler system. Lewis disputed the results of the boundary survey, claiming

that he owned the seven-foot strip of land by adverse possession, or alternatively,

that he had acquired an easement on it due to a sewer line that Lewis alleged ran

from his home under the disputed land. Lewis filed suit against Perales to establish

title to the land by adverse possession, claiming he owned the seven-foot strip of

land.   The suit was resolved in Perales’s favor.       See Allen & Martha Lewis

Revocable Trust v. Perales, No. 01-09-00140-CV, 2010 WL 3212125, at *9 (Tex.

App.—Houston [1st Dist.] Aug. 12, 2010, no pet.) (mem. op.) (affirming trial

court’s grant of summary judgment in favor of Perales). Perales contends that he

incurred approximately $70,000 in attorney’s fees over the several years his

dispute with Lewis (“Lewis’s suit”) remained pending.

        While Lewis’s suit was on-going, Perales sought indemnification from

Stumhoffer for “all costs and expenses incurred . . . in the . . . litigation” and for

“an equivalent of the fair market value of any portion of [the Property] that might

be successfully claimed by [Lewis] in the above suit.” Following Stumhoffer’s

death and the final resolution of Lewis’s suit, Perales filed suit against the Estate,

alleging that it owed a duty to defend him against Lewis’s claims, a duty which the



                                          3
Estate failed to acknowledge or discharge. Specifically, Perales alleged a cause of

action for breach of the general warranty deed by which Stumhoffer conveyed the

Property to him. Based on that cause of action, Perales also alleged that “[t]here

exists a real and substantial controversy involving genuine conflict of tangible

interests, and Perales requests this court to enter a determination of the parties’

obligations and rights pursuant to [Civil Practice and Remedies Code section]

37.010.” Perales also requested attorney’s fees under Civil Practice and Remedies

Code chapters 37 and 38.

      Perales moved for summary judgment on his claim against the Estate,

arguing that Stumhoffer transferred the Property to him under a general warranty

deed in which “Stumhoffer promised to warrant and defend the property conveyed

to Perales against every person claiming the same or any part thereof.” Perales

asserted that Stumhoffer “knew that he and his predecessors in interest had allowed

conditions on the property to develop so as to allow [Lewis] to encroach onto his

land and allow Lewis to have a colorable adverse possession claim for a portion of

the property.” Thus, Perales sought a declaration that the Estate had an obligation,

arising under the general warranty deed, to reimburse him for the attorney’s fees

and other costs he had incurred in defending against Lewis’s suit and that the

Estate breached that duty. Perales included exhibits setting out the amount of his

costs and attorney’s fees, totaling $74,171.01, all of which Perales incurred in



                                         4
defending his title against Lewis’s adverse possession claim. In his post-hearing

brief on the motion for summary judgment, Perales also argued that he was entitled

to recover the attorney’s fees incurred in defending against Lewis’s suit from the

Estate based on Civil Practice and Remedies Code sections 37.009 and 38.001,

governing the award of attorney’s fees in declaratory judgment actions and breach

of contract actions, respectively.

      The trial court granted summary judgment in favor of Perales, and it entered

final judgment awarding Perales $67,318.01, representing Perales’ “costs incurred

in defending title to property sold to [him by Stumhoffer], which includes costs

and attorney’s fees, plus 6% interest compounded annually from [the] date of

judgment.”

                                     Notice of Appeal

      The original notice of appeal named the Estate as the party appealing the

trial court’s final judgment, although the caption on the notice and all other

pleadings filed in the trial court indicated that the lawsuit was brought against and

was defended by the independent executor. An estate is not a legal entity that can

sue or be sued. See Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987)

(holding that estate is not legal entity and cannot be sued in that capacity); Casillas

v. Cano, 79 S.W.3d 587, 590 (Tex. App.—Corpus Christi 2002, no pet.) (holding

that “[a]n estate is not a legal entity and therefore cannot sue or be sued” in



                                            5
concluding that estate was not proper party to appeal where appellant died during

pendency of case). Accordingly, the Estate sought leave to amend its notice of

appeal to name the heir and proposed administrator of the Estate as the party

appealing the trial court’s judgment on behalf of the Estate. Perales argues that we

should not allow the Estate to amend its notice of appeal and that we should

dismiss the appeal.

A.    Facts Relevant to Notice of Appeal

      The underlying suit was brought against, and defended by, Frieda

Stumhoffer as the independent administrator of the Estate.           However, Frieda

Stumhoffer died while this case was pending in the trial court, and the attorney for

the Estate filed a suggestion of death, informing the trial court that Frieda

Stumhoffer had died and that the Estate was seeking a substitute administrator.

Without waiting for a new administrator to be named, the trial court entered final

judgment    against   Frieda   Stumhoffer     “in   her   capacity   as   Independent

Administratrix or Heir of the Estate (or any successive Administrator, Executor

and/or Heir).”

      The Estate filed a timely notice of appeal. The notice of appeal named the

Estate as the party appealing the trial court’s final judgment, but the caption on the

notice indicated that the lawsuit was brought against and was defended by the

independent executor, Frieda Stumhoffer.        After both parties had filed their



                                          6
appellate briefs, the Estate moved for leave to amend its notice of appeal. The

amended notice of appeal states that “Clarence Stumhoffer, an heir of and

proposed successor independent administrator of the Estate of Robert Brian

Stumhoffer on behalf of the Estate of Robert Brian Stumhoffer, deceased,” appeals

the trial court’s final judgment in favor of Perales. Perales filed a motion to strike

the amended notice of appeal and dismiss the appeal.

B.    Amending a Notice of Appeal

      Texas Rule of Appellate Procedure 25.1(g) provides:

      An amended notice of appeal correcting a defect or omission in an
      earlier filed notice may be filed in the appellate court at any time
      before the appellant’s brief is filed. The amended notice is subject to
      being struck for cause on the motion of any party affected by the
      amended notice. After the appellant’s brief is filed, the notice may be
      amended only on leave of the appellate court and on such terms as the
      court may prescribe.

TEX. R. APP. P. 25.1(g). The Texas Supreme Court has indicated that appellate

courts should freely grant leave to amend a notice of appeal when leave is sought.

See Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins.

Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (per curiam). When

perfecting the appeal, “the factor which determines whether jurisdiction has been

conferred on the appellate court is not the form or substance of the bond, certificate

or affidavit, but whether the instrument ‘was filed in a bona fide attempt to invoke

appellate court’s jurisdiction.’”    Id. (quoting Walker v. Blue Water Garden



                                          7
Apartments, 776 S.W.2d 578, 581 (Tex. 1989)); see also Sweed v. Nye, 323

S.W.3d 873, 875 (Tex. 2010) (per curiam) (“[A] timely filed document, even if

defective, invokes the court of appeals’ jurisdiction.”). “[I]f the appellant timely

files a document in a bona fide attempt to invoke the appellate court’s jurisdiction,

the court of appeals, on appellant’s motion, must allow the appellant an

opportunity to amend or refile the instrument required by law or our Rules to

perfect the appeal.” Park Warwick, L.P., 244 S.W.3d at 839. We are to apply the

rules of procedure liberally to reach the merits of the appeal whenever possible.

Id.

C.    Death of an Administrator

      Rule of Civil Procedure 153 provides:

      When an executor or administrator shall be a party to any suit,
      whether as plaintiff or as defendant, and shall die or cease to be such
      executor or administrator, the suit may be continued by or against the
      person succeeding him in the administration, or by or against the
      heirs, upon like proceedings being had as provided in the two
      preceding rules, or the suit may be dismissed, as provided in Rule
      151.

TEX. R. CIV. P. 153. Rule 152 provides that when a defendant dies, “upon the

suggestion of death being entered of record in open court, or upon petition of the

plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir

requiring him to appear and defend the suit and upon the return of such service, the

suit shall proceed against such administrator or executor or heir.” TEX. R. CIV. P.



                                           8
152. Rule 151 addresses how suits may proceed after the death of the plaintiff and

provides that the suit may be dismissed if the heir, administrator, or executor fails

to appear after service of scire facias. TEX. R. CIV. P. 151.

D.    Analysis

      Here, the notice of appeal named only the Estate as the appealing party, in

spite of the fact that an estate is not a legal entity that can sue or be sued. See

Henson, 734 S.W.2d at 649. However, the caption on the notice indicated that the

suit had been filed against and defended by Frieda Stumhoffer as the independent

administrator of the Estate.     And the trial court’s judgment, issued after the

attorney for the Estate had filed the suggestion of death, was entered against Frieda

Stumhoffer in her capacity as the independent administrator or against “any

successive Administrator, Executor and/or Heir.” (Emphasis added.) Thus, the

Estate’s original notice of appeal was a bona fide attempt to invoke our

jurisdiction. See Park Warwick, L.P., 244 S.W.3d at 838–39 (holding, in suit

asserting subrogation rights against alleged tortfeasor, that court of appeals erred in

refusing to grant insurance company leave to amend its notice of appeal after it had

filed notice of appeal in name of its insured even though insured did not wish to

appeal).

      Furthermore, the parties agree that Clarence Stumhoffer had been declared

an heir of the Estate and had applied for appointment as the independent



                                          9
administrator. As an heir, he is a proper party to continue the appeal following

Frieda Stumhoffer’s death. See TEX. R. CIV. P. 153; see also Casillas, 79 S.W.3d

at 591 (holding, in context of Rules 151 and 152, that “a deceased party may be

represented by an executor, an administrator or an heir” and that “[a]n heir would

be the appropriate party when there is no executor or administrator”). Thus, the

amended notice of appeal corrects the defect in the original notice of appeal.

Because the Estate timely filed a document in a bona fide attempt to invoke our

jurisdiction, we “must allow the appellant an opportunity to amend or refile the

instrument required by law or our Rules to perfect the appeal.” See Park Warwick,

L.P., 244 S.W.3d at 838–39.

      Accordingly, we grant the motion for leave to amend the notice of appeal,

and we deny the motion to strike the amended notice of appeal and dismiss the

appeal.

                              Summary Judgment

      In its sole issue on appeal, the Estate argues that the trial court erred in

granting Perales’s motion for summary judgment alleging that the Estate had a

duty to indemnify him for attorney’s fees and costs that he incurred in defending

against Lewis’s suit.




                                       10
A.    Standard of Review

      An appellate court reviews de novo the trial court’s ruling on a summary

judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005). To prevail on a traditional summary judgment motion, the

movant must establish that “there is no genuine issue as to any material fact” and

that it “is entitled to judgment as a matter of law on the issues expressly set out in

the motion or in an answer or any other response.” TEX. R. CIV. P. 166a(c); see

Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). If the

movant meets its burden, the burden then shifts to the nonmovant to raise a

genuine issue of material fact precluding summary judgment. See Centeq Realty,

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

      The movant for summary judgment has the burden of showing that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of

law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In

deciding whether there is a disputed material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Id. at 548–

49. Every reasonable inference must be indulged in favor of the non-movant and

any doubt resolved in its favor. Id. at 549.




                                          11
      When the plaintiff moves for summary judgment, the plaintiff must

conclusively prove all elements of its cause of action as a matter of law. Kyle v.

Countrywide Home Loans, Inc., 232 S.W.3d 355, 358 (Tex. App.—Dallas 2007,

pet. denied). If a movant does not show its entitlement to judgment as a matter of

law, we must remand the case to the trial court for further proceedings. Ridenour

v. Herrington, 47 S.W.3d 117, 121 (Tex. App.—Waco 2001, pet. denied). Unless

the movant’s summary judgment evidence is legally sufficient, the non-movant is

not required to produce summary judgment evidence to avoid an adverse summary

judgment. Hubert v. Ill. State Assistance Comm’n, 867 S.W.2d 160, 163 (Tex.

App.—Houston [14th Dist.] 1993, no pet.).

B.    Duty to Defend Under the Warranty Deed

      Perales moved for summary judgment on the ground that the general

warranty deed obligated Stumhoffer and his heirs and assigns to defend his title to

the Property from Lewis’s claims, and, in the absence of providing such a defense,

the Estate was obligated to indemnify Perales for the attorney’s fees associated

with defending against Lewis’s suit.

      Perales relies upon the language in the deed which states that Stumhoffer

and his heirs “warrant and forever defend, all and singular, the said premises unto

the said GRANTEE and GRANTEE’S heirs and assigns, against every person

whomsoever lawfully claiming, or to claim the same, or any part thereof.” This



                                        12
language is taken from Property Code section 5.022. Section 5.022 states that this

language “conveys a fee simple estate in real property with a covenant of general

warranty.” TEX. PROP. CODE ANN. § 5.022 (Vernon 2004). Furthermore, Texas

courts have long recognized that the language cited by Perales creates a general

warranty of title when included in a deed conveying real property. See, e.g., Bass

v. Harper, 441 S.W.2d 825, 826 (Tex. 1969) (observing that language “and I do

hereby bind myself, my heirs, executors and administrators to Warranty and

Forever Defend all and singular the said premises unto the said W.O. Miller, his

heirs and assigns, against every person whomsoever lawfully claiming or to claim

the same, or any part thereof” constitutes “a general warranty”); Garza v. Garza,

No. 04-11-00310-CV, 2013 WL 749727, at *4 (Tex. App.—San Antonio Feb. 27,

2013, no pet.) (mem. op.) (“Both the initial deed and the corrected deed from

Thelma to S.M.G. included a general warranty clause in which Thelma promised to

‘warrant and forever defend’ the premises against anyone claiming it.”). Thus, the

language relied upon by Perales creates a general warranty of title.

      Perales has cited no authority for the proposition that a general warranty

deed creates a duty on the part of the seller to reimburse the buyer for attorney’s

fees incurred by the buyer in defending a third party’s unsuccessful adverse

possession claim. Rather, a general warranty deed expressly binds the grantor to

defend against title defects created by himself and all prior titleholders in a suit by



                                          13
a person “lawfully claiming, or to claim the same, or any part thereof.” Munawar

v. Cadle Co., 2 S.W.3d 12, 16 (Tex. App.—Corpus Christi 1999, pet. denied)

(citing William V. Dorsaneo III et al., Tex. Litigation Guide § 254.02 (1994)). The

purpose of a general warranty clause is to indemnify the purchaser against a loss or

injury he may sustain by a defect in the seller’s title. Gibson v. Turner, 294

S.W.2d 781, 787 (Tex. 1956); Davis v. Andrews, 361 S.W.2d 419, 424–25 (Tex.

Civ. App.—Dallas 1962, writ ref’d n.r.e.); see also Triplett v. Shield, 406 S.W.2d

941, 947 (Tex. Civ. App.—Eastland 1966, writ ref’d n.r.e.) (“A covenant of

general warranty means that the real property conveyed is free from

encumbrances.”). To establish a breach of the warranty of title, the warrantee must

show that at the time the land was conveyed, there was a superior title outstanding

in another person, and the warrantee was evicted by the superior title holder.

Garza, 2013 WL 749727, at *5 (citing Felts v. Whitaker, 129 S.W.2d 682, 685–86

(Tex. Civ. App.—Fort Worth 1939), aff’d, 155 S.W.2d 604 (Tex. 1941)); see also

Gibson, 294 S.W.2d at 787 (“[T]here can be no breach of warranty and no

recovery of damages for breach of warranty unless and until there has been an

actual or constructive eviction of the lessee.”).

      “[T]he nature and purpose of [a covenant of general warranty] is for the

indemnity of the purchaser against the loss or injury he may sustain by a failure or

defect in the vendor’s title.” City of Beaumont v. Moore, 202 S.W.2d 448, 453



                                          14
(Tex. 1947). Thus, a seller has a duty to defend a title passed by a general

warranty. However, the obligation of providing monetary indemnity applies only

to loss sustained by a failure in the warrantor’s title. See id. There is no loss when

the title does not fail; thus, there is no indemnification. See id. (“The covenant

against encumbrances is embraced within the general warranty clause, and it is the

legal duty of the grantor to pay off and discharge all liens and encumbrances

incurred prior to the conveyance which are not assumed by the warrantee.”).

      Moreover, even upon a showing of breach of a covenant of general warranty

of good title, without more, the purchaser’s damages do not include attorney’s fees.

See Turner v. Miller, 42 Tex. 418 (1874) (stating that court had found no cases

“wherein counsel fees have been allowed as damages in a suit upon a general

warranty alone”; and holding that “the correct rule is . . . not to allow counsel fees

in a suit on a general warranty, as in this case, when there is no question of fraud,

imposition, or malicious conduct involved”).        Rather, the proper measure of

damages for breach of a general warranty of good title is the consideration paid for

the conveyance or for whatever portion of the conveyance that was subject to a

failure of title. See Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37

(Tex. 1987); Ragsdale v. Langford, 358 S.W.2d 936, 938 (Tex. Civ. App.—Austin

1962, writ ref’d n.r.e.) (“The measure of damages in a suit for breach of warranty

is governed by the rule applicable to partial failure of title, that the damages will



                                         15
bear the same proportion to the whole purchase money as the value of the part to

which the title fails bears to the whole premises estimated at the price paid.”)

(citing Moore, 202 S.W.2d at 453); see also Turner, 42 Tex. 418 (“The rule has

been laid down in covenants for title in this State, that upon failure of title the

measure of damages is the purchase-money, with interest.”).

      Here, Perales cannot establish a breach of the warranty of title. Stumhoffer,

and subsequently his Estate, was only bound to defend against or indemnify for

loss that resulted from a defect in Stumhoffer’s title that encumbered the title at the

time the Property was conveyed. See Gibson, 294 S.W.2d at 787; Moore, 202

S.W.2d at 453; see also Crowder v. Scheirman, 186 S.W.3d 116, 119 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (holding that indemnity agreements must be

strictly construed to give effect to parties’ intent as expressed in their agreement)

(citing Ideal Lease Serv. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex. 1984)).

The litigation of Lewis’s claim against the Property ended with a determination

that there was no title defect. “[T]he nature and purpose of [a covenant of general

warranty] is for the indemnity of the purchaser against the loss or injury he may

sustain by a failure or defect in the vendor’s title.” Moore, 202 S.W.2d at 453; see

Turner, 42 Tex. 418 (stating that recovery of attorney’s fees in suit on general

warranty is not allowed when there is no question of fraud, imposition, or

malicious conduct). Because there was no failure or defect in Stumhoffer’s title,



                                          16
Perales cannot depend on the general warranty language to support his argument

that he is entitled to recover attorney’s fees from the Estate.

      Perales argues that this is not a suit for breach of the title warranty, but a suit

for breach of a separate duty to defend regardless of any defect in the title.

However, Perales does not cite any agreement creating a separate duty to defend

aside from the language of the general warranty of title, and the cases Perales relies

on to support this argument are distinguishable from the present case. Perales cites

Rowe v. Heath, Miller v. Gann, and Crossland v. Lange, among others, in arguing

that Stumhoffer’s failure to defend Perales against Lewis’s claims gave rise to an

obligation to indemnify Perales for the attorney’s fees he expended in defending

against Lewis’s suit. These cases do not support Perales’s claim.

      In Rowe v. Heath, the buyer sued the seller following his eviction from the

land upon a successful claim of superior title by a third party. 23 Tex. 614 (1859).

The seller sold the land pursuant to a general warranty deed containing the

language that Perales relies upon here, namely that the seller would “warrant and

forever defend the right and title to said land, against all legal claim or claims to

said land or premises.” Id. Once the third party filed suit alleging superior title,

the buyer contacted the seller and proposed a cancellation of the sale. Id. The

seller assured the buyer “that his title was good, and could not be defeated by [the

adverse claimant],” and the seller then promised the buyer that he would pay for all



                                          17
improvements on the property and pay all expenses of defending the suit if the

buyer would stay on the land. Id. The seller defended the suit in part, but

abandoned the defense before the trial occurred. The buyer was evicted from the

property and filed a claim against the seller for the loss of the sale-price of the

land, the cost of his improvements to the land, and the attorney’s fees and other

expenses of litigation. Id. The supreme court upheld the award of attorney’s fees

in that case because the buyer “relied on the express promise and undertaking of

the [seller] to pay the expenses of the suit” and the evidence was sufficient to

warrant the jury’s findings on that ground. Id.; see also Turner, 42 Tex. 418

(stating that buyer in Rowe “recovered counsel fees upon a special promise that the

[seller] would bear the expense of litigation, if the [buyer] would defend the suit,

which he did, and failed by reason of a superior title”; concluding that holding in

Rowe was reached based “expressly upon the special contract to pay counsel fees”;

and holding that general rule in Texas is that counsel fees are not recoverable in

suit on general warranty). Here, unlike in Rowe, no defect of title was found and

no special agreement to pay attorney’s fees existed between Stumhoffer and

Perales.

      In Miller v. Gann, a tract of land was purchased by Miller, Gann, and

Perdue. No. 01-94-01210-CV, 1996 WL 659415, at *1 (Tex. App.—Houston [1st

Dist.] Nov. 14, 1996, writ denied) (mem. op., not designated for publication).



                                        18
Shortly after the 1968 purchase, the parties formed a partnership to develop the

land and conduct business operations on it. Id. The complex dispute among the

parties centered on whether the individuals or the partnership owned the land and

whether Gann and Perdue had breached a fiduciary duty to Miller. Id. After years

of litigation and several phases of trial, the trial court held that a 1970 deed to the

land “contained a clause that specifically required Miller to defend Gann’s and

Perdue’s title to the property.” Id. at *9. This Court held that when Miller failed

to defend the title to the property pursuant to that specific clause, Miller breached

the contract, “giving rise to a valid claim by Gann and Perdue for attorney’s fees.”

Id. No such clause exists in the instant case.

      In Crossland v. Lange, the Corpus Christi Court of Appeals reversed a no-

evidence summary judgment rendered in favor of the seller on the ground that a

no-evidence motion for summary judgment was not the proper vehicle for

questioning the legal sufficiency of a plaintiff’s petition. No. 13-10-217-CV, 2010

WL 5020501, at *2–3 (Tex. App.—Corpus Christi Dec. 9, 2010, no pet.) (mem.

op.). The court stated, “It appears that [the seller] is challenging whether [the

buyers], in fact, have a cause of action for indemnity against her. That is an issue

we do not decide here. . . . However, a no-evidence summary judgment motion is

not the correct vehicle for determining a question of law.” Id. Thus, Crossland




                                          19
does not support a conclusion that attorney’s fees are recoverable on a claim under

a general warranty deed.

        Perales does not cite, and we could not identify, any Texas authority that has

held a seller liable under the covenant of general warranty in a general warranty

deed for attorney’s fees or other expenses of defending a title to real property

against an unsuccessful claim arising from an alleged defect in the title. Nor does

Perales cite any other special agreement or clause in the deed requiring Stumhoffer

to reimburse Perales for attorney’s fees under the circumstances presented in this

case.

        Because Perales failed to establish as a matter of law that Stumhoffer was

obligated to reimburse him for the attorney’s fees or other costs incurred in

defending against Lewis’s suit, the trial court erred in granting summary judgment

in Perales’s favor. See TEX. R. CIV. P. 166a(c); Little, 148 S.W.3d at 381 (holding

that movant must establish that “there is no genuine issue as to any material fact”

and that it “is entitled to judgment as a matter of law on the issues expressly set out

in the motion or in an answer or any other response”).

C.      Attorney’s Fees Based on Civil Practice and Remedies Code Sections
        38.001 and 37.009

        Perales also argued below that he was entitled to recover from the Estate the

attorney’s fees expended in his defense of Lewis’s suit against him based on Civil

Practice and Remedies Code section 37.009, which is part of the Texas Uniform


                                          20
Declaratory Judgment Act (“UDJA”), and sections 38.001 and 38.004, governing

an award of attorney’s fees in breach of contract cases. 1

      “Texas has long adhered to the American Rule with respect to awards of

attorney’s fees, which prohibits the recovery of attorney’s fees from an opposing

party in legal proceedings unless authorized by statute or contract.” Tucker v.

Thomas, 419 S.W.3d 292, 295 (Tex. 2013). Civil Practice and Remedies Code

sections 37.009 and 38.001 are statutory provisions that allow, under certain

circumstances, for a party to recover attorney’s fees. Section 37.009 provides, “In

any proceeding under this chapter, the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE

ANN. § 37.009 (Vernon 2008).         Section 38.001 provides 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 . . . an oral or written

contract.” Id. § 38.001(8) (Vernon 2008).

      In his motion for summary judgment, Perales sought costs and attorney’s

fees incurred in the prior litigation against Lewis as damages for his claim that the

Estate breached its duty arising under the general warranty deed, and he presented

evidence that those fees totaled nearly $75,000. The trial court rendered judgment


1
      Perales argues that the Estate did not raise any issues “relating to the amount or
      the reasonableness” of the fees awarded. However, the Estate did argue that
      Perales was not entitled to any attorney’s fees at all.

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in favor of Perales and ordered the Estate to pay Perales $67,318.01 for the “costs

incurred in defending title to property sold to [him] by Robert Brian Stumhoffer.”

However, these are not the types of attorney’s fees contemplated by sections

37.009 and 38.001. See id. §§ 37.009, 38.001; see also El Dorado Motors, Inc. v.

Koch, 168 S.W.3d 360, 366 (Tex. App.—Dallas 2005, no pet.) (observing that

attorney’s fees expended in prior litigation are recoverable only when provided for

by contract or agreement between parties); Martin-Simon v. Womack, 68 S.W.3d

793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“In Texas,

attorney’s fees expended in prior litigation generally are not recoverable as

damages; attorney’s fees are recoverable only when an agreement between the

parties so provides.”).

      Perales also argues that he is entitled to attorney’s fees incurred in this

litigation under section 38.004, which provides that a court may take judicial

notice of the usual and customary attorney’s fees and contents of a case file

without receiving further evidence of attorney’s fees in a proceeding before the

court. TEX. CIV. PRAC. & REM. CODE ANN. § 38.004 (Vernon 2008). However, we

have already concluded that Perales did not establish that the Estate breached any

duty arising under the general warranty deed and that he is not entitled to recover

his attorney’s fees incurred in Lewis’s suit as damages on that claim. Thus,

Perales is not a prevailing party in this suit, as is required to recover attorney’s fees



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against the Estate under Civil Practice and Remedies Code chapter 38. See Green

Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (providing that party must

prevail on cause of action for which attorney’s fees are recoverable and recover

damages to obtain award of attorney’s fees under section 38.001); see also Hot-

Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 733 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied) (holding that party may not use

UDJA and section 37.009 to recover otherwise impermissible attorney’s fees).

      Thus, we conclude that neither section 37.009 nor section 38.001 entitles

Perales to recover from the Estate his attorney’s fees incurred in the prior litigation

between himself and Lewis. Because, as a matter of law, Perales did not show his

entitlement to judgment awarding him his attorney’s fees and costs, the trial court

erred in granting summary judgment in his favor and we must remand the case to

the trial court for further proceedings. See Ridenour, 47 S.W.3d at 121.

      We sustain the Estate’s sole issue.

                                     Conclusion

      We reverse the trial court’s summary judgment and remand the case for

further proceedings consistent with this opinion.



                                                 Evelyn V. Keyes
                                                 Justice

Panel consists of Justices Keyes, Bland, and Brown.


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