                                                                                 ACCEPTED
                                                                             12-14-00310-CV
                                                                TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                        4/30/2015 3:20:36 PM
                                                                               CATHY LUSK
                                                                                      CLERK

                        NO. 12-14-00310-CV
                              IN THE
                  TWELFTH COURT OF APPEALS               FILED IN
                                                  12th COURT OF APPEALS
             TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
                    FOR THE STATE OF TEXAS        4/30/2015 3:20:36 PM
               _________________________________________
                                                       CATHY S. LUSK
                                                            Clerk
BRANDON SAXON,                                              Appellant


vs.

GROVE CLUB LAKE, INC.,                                      Appellee

                _________________________________________

                 Appealed from the County Court at Law
                          Smith County, Texas
                            Cause No. 61,853
                _________________________________________

                        BRIEF OF APPELLEE,
                      GROVE CLUB LAKE, INC.
                _________________________________________




PAUL M. BOYD
Texas State Bar No. 02775700
KEVIN G. GIDDENS
Texas State Bar No. 24076877
1215 Pruitt Place
Tyler, Texas 75703
903/526-9000
903/526-9001 (FAX)
boydpc@tyler.net
Kevin.giddens@suddenlinkmail.com

ATTORNEYS FOR APPELLEE
                                      TABLE OF CONTENTS
                                                                                                     PAGE
TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

ARGUMENT AND AUTHORITIES ........................................................................2

I.                       Standards of Review ................................................................... 2

II. ISS NO. 1            The Evidence Supports the Trial Court’s Judgment. .................. 3

SUB-ISS NO. 1            Saxon violated the Bylaws .......................................................... 3

      A.         The evidence suggests that the trial court could have believed the

                 Club’s witness rather than Saxon. ......................................................... 3

SUB-ISS NO. 2            The Club did not violate the Bylaws. ......................................... 8

      A.         The evidence suggests that the trial court could have believed the

                 Club did not violate the Bylaws. ........................................................... 8

SUB-ISS NO. 3            The trial court did not hear any matter regarding a seizure of

                         Saxon’s home. ............................................................................. 9

III. ISS NO. 2           The Evidence Supports the Trial Court Granting a Directed

                         Verdict against Appellant ......................................................... 10

IV. ISS NO. 3            The Evidence Supports the Trial Court not Awarding

                         Attorney’s Fees to Appellant .................................................... 12


                                                        ii
       A.         Standard for recovery of attorney’s fees. ............................................ 12

       B.         Appellant was not entitled to attorney’s fees for defense against a

                  claim. ................................................................................................... 13

       C.         Appellant cites cases that are not applicable to this case. ................... 14

CONCLUSION ........................................................................................................15

PRAYER ..................................................................................................................16

CERTIFICATE OF SERVICE ................................................................................17

CERTIFICATE OF COMPLIANCE .......................................................................18

Saxon’s Original Answer and Counterclaim ............................................ Appendix 1




                                                             iii
                                      TABLE OF AUTHORITIES

                                                                                                                    PAGE

Cases

Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852 (Tex.App.—Houston

  [14th Dist.] 2006, no pet.) ..................................................................................2, 3

Bradford v. Vento, 48 S.W.3d 749 (Tex.2001) .........................................................3

Brockie v. Webb, 244 S.W.3d 905, 910 (Tex.App.—Dallas 2008, pet. denied.) ...14

Cain v. Bain, 709 S.W.2d 175 (Tex.1986) ................................................................3

City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) ..........................................2, 3

City of Pharr v. Boarder to Boarder Trucking Serv., Inc., 76 S.W.3d 803

  (Tex.App.-Corpus Christi 2002, pet. denied) .........................................................3

Dallas Cent. Appraisal Dist. V. Seven Inv. Co., 835 S.W.2d 75 (Tex.1992)..........12

De La Rosa v. Kaples, 812 S.W.2d 432 (Tex.App.—San Antonio 1991, writ

  denied) ..................................................................................................................15

Edlund v. Bounds, 842 S.W.2d 719 (Tex.App.—Dallas 1992, writ denied) ..........10

Foley v. Daniel, 346 S.W.3d 687 (Tex.App.—El Paso 2009, no pet.)....................10

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex.2004) ........................................2

Green Int'l, Inc. v. Solis, 951 S.W.2d 384 (Tex.1997) ............................................12

Horizontal Holes, Inc. v. River Valley Enterprises, Inc., 197 S.W.3d 834

  (Tex.App.—Dallas 2006, no pet.) ........................................................................15

                                                             iv
Leon Springs Gas Co. v. Restaurant Equip. Leasing Co., 961 S.W.2d 574

  (Tex.App.—San Antonio 1997, no pet.) ....................................................... 11, 13

Marathon Corp v. Pitzner, 106 S.W.3d 724 (Tex.2003) (per curiam).......................2

Melson v. Stemma Exploration & Prod. Co., 801 S.W.2d 601 (Tex.App.—Dallas

  1990, no writ) .......................................................................................................13

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997) ..........................2

Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex.2004) (per

  curiam) ........................................................................................................... 12, 14

Ortiz v. Jones, 917 S.W.2d 770 (Tex.1996) (per curiam) .........................................2

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74

  (Tex.2000) ............................................................................................................10

Rodgers v. RAB Inv., Ltd., 816 S.W.2d 543 (Tex.App.—Dallas 1991, no writ) ...12

Shaw v. County of Dallas, 251 S.W.3d 165

  (Tex.App.—Dallas 2008, pet. denied) ...................................................................5

State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995) ..................12

Weirich v. Weirich, 883 S.W.2d 942, 945 (Tex.1992) ..............................................3

Wilson & Wilson Tax Servs. v. Mohammed, 131 S.W.3d 231, 240 (Tex.App.—

  Houston [14th Dist.] 2004, no pet.) ......................................................................13

Statute

Tex. Civ. Prac. & Rem. Code Ann. § 38.001 ..........................................................12


                                                            v
                           NO. 12-14-00310-CV
                                 IN THE
                     TWELFTH COURT OF APPEALS
                TWELFTH COURT OF APPEALS DISTRICT
                       FOR THE STATE OF TEXAS
                  _________________________________________

BRANDON SAXON,                                                         Appellant


vs.

GROVE CLUB LAKE, INC.,                                Appellee
            _________________________________________

                    Appealed from the County Court at Law
                             Smith County, Texas
                               Cause No. 61,853
                   _________________________________________

                           BRIEF OF APPELLEE,
                         GROVE CLUB LAKE, INC.
                   _________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Appellee, Grove Club Lake, Inc. (“the Club”) submits this Brief of Appellee,

in accordance with Rules 9.4 and 38.2 of the TEXAS RULES             OF   APPELLATE

PROCEDURE and all local rules of this Court. In support of the affirming the

judgment of the trial court, Appellee respectfully show the court as follows:




                                         1
                      ARGUMENT AND AUTHORITIES

I.    Standards of Review

      A trial court’s findings of fact for legal and factual sufficiency are reviewed

with the same deference and under the same standards as jury verdicts. Ortiz v.

Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam); Arrellano v. State Farm Fire

& Cas. Co., 191 S.W.3d 852, 855 (Tex.App.—Houston [14th Dist.] 2006, no pet.).

      In a legal sufficiency review, the court should look at all of the evidence in

light most favorable to the finding to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true. In re J.F.C.,

96 S.W.3d 256, 266 (Tex.2002). A legal sufficiency point of error is sustained

when: (1) the record discloses a complete absence of evidence of a vital fact; (2)

the court is barred by rules of law or evidence from giving weight to the only

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

is no more than a mere scintilla; or (4) the evidence establishes conclusively the

opposite of the vital fact.    Marathon Corp v. Pitzner, 106 S.W.3d 724, 727

(Tex.2003) (per curiam).

      More than a scintilla of evidence exists if the “evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (citing Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)); See City of Keller v.


                                          2
Wilson, 168 S.W.3d 802, 812 (Tex.2005). Evidence is less than a scintilla if “it is

so weak as to do no more than create a mere surmise or suspicion of its existence.”

Ford Motor Co, 135 S.W .3d at 601.           The appellate court must review “the

evidence in a light that tends to support the finding of the disputed fact and

disregard all evidence and inferences to the contrary.” Bradford v. Vento, 48

S.W.3d 749, 754 (Tex.2001) (citing Weirich v. Weirich, 883 S.W.2d 942, 945

(Tex.1992)); See City of Keller, 168 S.W.3d at 819–20.

      In contrast, when an appellant challenges the factual sufficiency of the trial

court’s findings, the appellate court considers and weigh all the evidence in the

record. City of Pharr v. Boarder to Boarder Trucking Serv., Inc., 76 S.W.3d 803,

807 (Tex.App.-Corpus Christi 2002, pet. denied). The appellate court sets aside

the verdict only if it “is so against the overwhelming weight of the evidence as to

be clearly wrong and unjust.” Arrellano, 191 S.W.3d at 856 (citing Cain v. Bain,

709 S.W.2d 175, 176 (Tex.1986)).

II. ISSUE NO. 1 The Evidence Supports the Trial Court’s Judgment.

SUB-ISSUE NO. 1          Saxon violated the Bylaws.

      A. The evidence suggests that the trial court could have believed the
         Club’s witness rather than Saxon.

      The key question in this case was whether Appellant Brandon Saxon

(“Saxon”) violated the Bylaws of Grove Club Lake, Inc., (“Bylaws”) by having

William Hodge as an unauthorized visitor at Appellee Grove Club Lake, Inc., (“the

                                         3
Club”). It is uncontested that Mr. Hodges was at the property without Saxon being

present at least 14 times. 2 RR 82. The trial court held that Mr. Hodges was an

unauthorized visitor and not service personnel. 3 RR 15. The evidence is factually

sufficient to support the trial court’s judgment.

      The only witnesses in this case were Debbie Malone, secretary of the Club,

and Brandon Saxon. 2 RR 15; 2 RR 78. The thrust of Ms. Malone’s testimony

was that Mr. Hodge did not fall within the term “service personnel”. “Service

personnel” included lawn maintenance appliance repair, construction, and general

home maintenance. 2 RR 22. Mr. Hodge was actually an unauthorized visitor. 2

RR 29.

      Saxon testified that he hired Mr. Hodges as service personnel, specifically as

a house sitter.    This house sitting service agreement was put in writing in

September 2012. 2 RR 90. Mr. Hodges’ duties included protecting Saxon’s

belongings, caring for Saxon’s dog, and day-to-day operations such as lawn care.

2 RR 89.

      This trial boiled down to whether the trial court believed Saxon’s house

sitting service agreement was an attempt to circumvent the Bylaws or served

legitimate ends. In a bench trial, the trial court is the sole judge of the credibility

of the witnesses and may believe one witness over another and resolve any

conflicts or inconsistencies in the testimony. Shaw v. County of Dallas, 251


                                           4
S.W.3d 165, 169 (Tex.App.—Dallas 2008, pet. denied). The judgment reflects the

judge’s assignment of credibility more toward the Club’s witness rather than

Saxon.

      As discussed in Saxon’s brief, the Bylaws distinguishes members and

associate members from nonmembers.          Article 2 Section A of the Bylaws

addresses the categories of “members”, “associate members”, “visitors”, and

“service personnel”.   2 RR 51.     Ms. Malone testified that all categories but

members and associate members are nonmembers. Id. Visitors are nonmembers

that can enjoy privileges of members only if a member is present. 2 RR 52.

However, service personnel cannot enjoy lake privileges even if a member is

present. Id. Thus, a logical reading of the Bylaws limits service personnel even

more than a visitor.

      It would be illogical to extend service personnel the power to stay overnight

for extended periods of time. The effect of the Bylaws is a prohibition for any

nonmembers staying overnight without a member present. 2 RR 54. There is no

dispute that a visitor could not stay overnight without a member present. 2 RR 53.

But Saxon wants to interpret portions of the Bylaws related to service personnel in

a very limited manner without reviewing the Bylaws as a whole. In Saxon’s

interpretation, a plumber could not use the lake but would be allowed to stay




                                        5
overnight at the Club indefinitely. This interpretation conflicts with the purpose of

distinguishing between members and associate members versus nonmembers.

       Even if Saxon’s argument is correct, there is evidence that Mr. Hodge acted

more as an unauthorized visitor rather than service personnel. First, Mr. Hodge

stayed the night at Saxon’s home. 2 RR 30. Ms. Malone testified that no other

member’s service personnel stayed the night at a member’s house. 2 RR 22.

There is evidence that it was not necessary for Mr. Hodge to stay the night. Ms.

Malone testified that not every member lives at the Club full-time. 2 RR 22. In

fact, Ms. Malone herself did not live at the Club full-time. Id. The Club is a

private area with its own private lake. 2 RR 8. There was no evidence presented

that Mr. Hodge’s overnight stays protected Saxon’s assets due to some danger at

this private club. There was no evidence that Mr. Hodge had to remain at Saxon’s

house after maintaining the house, lawn, and dog. 2 RR 88. Even if service

personnel are allowed to stay the overnight under the Bylaws, there was evidence

that Mr. Hodge’s actions extended from service personnel into an unauthorized

visitor.

       Second, the evidence suggests that Mr. Hodge was actually a de facto

roommate and was referred to as “service personnel” to circumvent the Bylaws.

Mr. Hodge was somehow related to Saxon either as a stepbrother or brother-in-

law. 2 RR 29.     Mr. Hodge moved furniture into Saxon’s home and moved this


                                         6
furniture out of the home when Mr. Hodge left. 2 RR 22.         This would be very

stranger behavior for a dog sitter or contractor. Even a house sitter will not

typically move their own furniture into the house they are watching. Moving

furniture is the behavior of a roommate, not service personnel. Undoubtedly, a

roommate that does not qualify as an associate member would be a violation of the

Bylaws. Saxon did not refer to Mr. Hodge as a roommate because this would

violate the Bylaws. A document entitled “House Sitting Agreement” was drafted

rather than a lease. 2 RR 80. However, the evidence shows that Mr. Hodge’s

behavior was in reality that of a roommate making Mr. Hodge an unauthorized

visitor. Thus, there is evidence to support the trial court crediting the Club’s

witness over Saxon’s testimony.

      There is evidence to suggest that Mr. Hodge was an unauthorized visitor

rather than service personnel and Saxon violated the Bylaws by allowing Mr.

Hodge to be at the Club without Saxon present. Thus, because the finding is not so

contrary to the overwhelming weight of the evidence as to be unjust, the evidence

is factually sufficient to support the trial court’s finding.




                                            7
SUB-ISSUE NO. 2           The Club did not violate the Bylaws.

      A. The evidence suggests that the trial court could have believed the
         Club satisfied all conditions precedent.

      Saxon argues that the Club violated their own Bylaws by not performing a

proper investigation. However, there is evidence that the Club consistently warned

Saxon of these violations prior to pursuing this lawsuit.

      The Club met with Saxon regarding unauthorized visitors. Saxon’s claim

that the Club never allowed Saxon a hearing to submit his side of the story ignores

the uncontested evidence that the Board of Directors for the Club (“Board”) met

with Saxon regarding unauthorized visitors. 2 RR 71; 2 RR 83. The Board made

Saxon aware that future violations could result in a fine. 2 RR 84. The Board also

contacted Saxon regarding the fact that Mr. Hodges was not considered service

personnel and could not stay overnight prior to the fines related to this lawsuit. 2

RR 85.

      Saxon also complains that the Club acted without any complaints from other

members. Saxon had multiple complaints from members regarding Mr. Hodge

staying as overnight visitor. Ms. Malone testified that Glen Ab Walters and Troy

Mayner complained against these violations prior to the Board assessing fines. 2

RR 68-69. There is evidence that the Club had received complaints from members

before fining Saxon.



                                          8
      An investigation that does not violate the Bylaws according to Saxon’s brief

is circular and an impractical interpretation of the Bylaws. Saxon would require a

club with around 60 members to hold a formal investigation for every violation and

subsequent violation allowing the member to speak at every opportunity. Thus, a

member such as Saxon would have at least 14 hearings for the exact same violation

rather than the single meeting Saxon was given with the Board. This suggested

process is not a logical reading of the Bylaws.

      There is evidence that the Club investigated Saxon’s violations in

conformity with the Bylaws. Thus, because the finding is not so contrary to the

overwhelming weight of the evidence as to be unjust, the evidence is factually

sufficient to support the trial court’s finding.

SUB-ISSUE NO. 3            The trial court did not hear any matter regarding a
                           seizure of Saxon’s home.

      Saxon improperly argues an issue not raised with the trial court. There was

no evidence presented of foreclosure by the Club. Furthermore, no foreclosure

was sought by the Club at trial. This issue was moot before trial because Saxon

paid the assessments related to his property and the Club had no grounds to request

foreclosure. 3 RR 14. Foreclosure was not a requested remedy in the Club’s

closing and was not even addressed by the trial court. 3 RR 14-15.

      The appellate court should not review of the actions of a trial on an issue that

was not presented to it at the time. Barnard v. Barnard, 133 S.W.3d 782, 789

                                            9
(Tex.App.—Fort Worth 2004, pet. denied.). This issue was moot at trial and

should not be considered on appeal.

III. ISSUE NO. 2 The Evidence Supports the Trial Court Granting a Directed
                 Verdict against Appellant

         The evidence is legally sufficient to support the trial court granting a

directed verdict against Saxon’s counterclaim.

         A directed verdict is warranted when the evidence is such that no other

verdict can be rendered and the moving party is entitled, as a matter of law, to a

judgment. Edlund v. Bounds, 842 S.W.2d 719, 723 (Tex.App.—Dallas 1992, writ

denied). A trial court may order a directed verdict in favor of a defendant when:

(1) a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's

right of recovery; or (2) the plaintiff admits or the evidence conclusively

establishes a defense to the plaintiff's cause of action. See Prudential Ins. Co. of

Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000).

         Presumptively, Saxon’s counterclaim for violation of Bylaws is a breach of

contract claim. 1 CR 100. The elements of a contract are: (1) The existence of a

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach

of the contract by the defendant; and (4) damages to the plaintiff resulting from

that breach. Foley v. Daniel, 346 S.W.3d 687, 690 (Tex.App.—El Paso 2009, no

pet.).



                                            10
      Saxon failed to present a scintilla of evidence for actual damages on his

breach of contract claim.     “Damages” is a necessary element of a breach of

contract claim. See Id. Saxon failed to present evidence of any damages other than

attorney’s fees.    Saxon’s presented evidence only for “attorney’s fees and

[Saxon’s] court costs.” 2 RR 99. Saxon did not present evidence on all four (4)

elements for breach of contract, thus the directed verdict was proper.

      Furthermore, Saxon’s counterclaim was not a true claim for affirmative

relief. To qualify as a claim for affirmative relief, a defensive pleading must allege

that the defendant has a cause of action independent of the plaintiff's claim, on

which he could recover benefits, compensation or relief, even though the plaintiff

may abandon his cause of action or fail to establish it. Leon Springs Gas Co. v.

Restaurant Equip. Leasing Co., 961 S.W.2d 574, 577 (Tex.App.—San Antonio

1997, no pet.). Saxon would have no claim for affirmative relief had the Club

abandoned their own breach of contract claim. Saxon’s entire claim was a strategy

of avoidance against the Club’s claims. See Id. at 578.

      Because Saxon failed to present even a scintilla of evidence regarding actual

damages and Saxon’s counterclaim was not a claim for affirmative relief, the

evidence is legally sufficient to support the trial court’s directed verdict against

Saxon’s counterclaim.




                                         11
IV. ISSUE NO. 3 The Evidence Supports the Trial Court not Awarding
                Attorney’s Fees to Appellant

       A. Standard for recovery of attorney’s fees.

       As a general rule, attorney’s fees are not recoverable unless allowed by

statute or by contract. See Dallas Cent. Appraisal Dist. V. Seven Inv. Co., 835

S.W.2d 75, 77 (Tex.1992). Attorney’s fees may be recovered in a claim for breach

of contract. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001.

       As the Texas Supreme Court has made clear, section 38.001 requires

recovery of damages for a claimant to be eligible to recover attorney's fees. See

Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997). In 1995, and again in

1997, the Texas Supreme Court stated that for a party to recover attorney's fees

under section 38.001, “a party must (1) prevail on a cause of action for which

attorney's fees are recoverable, and (2) recover damages.” Green Int'l, 951 S.W.2d

384 at 390 (quoting State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437

(Tex.1995)); See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195

(Tex.2004) (per curiam) (“it was not entitled to recover attorney's fees because it

was not awarded damages on its breach of contract claim”); Rodgers v. RAB Inv.,

Ltd., 816 S.W.2d 543, 551 (Tex.App.—Dallas 1991, no writ) (“Without a jury

finding of damages or a recovery of money, there can be no award of attorney's

fees.”).



                                        12
      B. Appellant was not entitled to attorney’s fees for defense against a
         claim.

      Here, Saxon did not recover on his counterclaim and was not awarded

damages. Rather, only the Club recovered on their breach of contract claim for 14

separate violations by Mr. Saxon and was awarded $765.00. 3 RR 15; 4 RR 341-2.

      At most, Saxon’s claim for recovery is based upon some type of defense of a

claim argument. Section 38.001 does not provide for attorney's fees for a party's

successful defense against a claim. Wilson & Wilson Tax Servs. v. Mohammed,

131 S.W.3d 231, 240 (Tex.App.—Houston [14th Dist.] 2004, no pet.); Melson v.

Stemma Exploration & Prod. Co., 801 S.W.2d 601, 604 (Tex.App.—Dallas 1990,

no writ).

      As stated above, Saxon’s counterclaim is not an action independent of the

Club’s claim. Leon Springs Gas Co., 961 S.W.2d 574 at 577. Saxon would not

have a claim if the Club nonsuited their claims. Furthermore, Saxon does not have

a claim for attorney’s fees because there is no claim for damages. See Leon

Springs Gas Co., 961 S.W.2d 574 at 578.

      Because Saxon failed to present even a scintilla of evidence regarding actual

damages and Saxon’s counterclaim was not a claim for affirmative relief, the

evidence is legally sufficient to support the trial court’s denial of Saxon’s

attorney’s fee.



                                        13
        C. Appellant cites cases that are not applicable to this case.

        The cases relied upon by Appellant are inapplicable to this case. Each of the

cases specifically require recovery of damages for a party to be awarded attorney’s

fees.

        As noted above, Mustang mandates the award of damages to recover

attorney’s fees. The case states that “Mustang did have a valid claim against

Driver, it was not entitled to recover attorney’s fees because it was not awarded

damages on its breach of contract claim.” Mustang, 134 S.W.3d 195 at 201. Here,

the trial court found that Saxon did not have any valid claim against the Club.

        The facts of Brockie bear no similarity to this case. Brockie at its core is an

intervening suit by an attorney against a party for nonpayment of legal fees.

Brockie v. Webb, 244 S.W.3d 905, 910 (Tex.App.—Dallas 2008, pet. denied.). In

Brockie the sued party counterclaimed the attorney for legal malpractice. Id. at

910-911. In Brockie, the claim for monetary damages related to unpaid legal fees

was intertwined with the counterclaim for legal malpractice, thus the attorney’s

fees associated with the defense were indistinguishable. Id. The court generally

stated that attorney’s fees necessary to defend a counterclaim for legal malpractice

could be awarded. Id. at 910. However, attorney’s fees were not actually awarded

in this case. Id. at 911. Brockie should not be interpreted as allowing attorney’s

fees for claims without any actual damages. Likewise, the case cited in Brockie


                                           14
had a claim for actual damages in the amount of $15,000.00 in the counterclaim.

See De La Rosa v. Kaples, 812 S.W.2d 432, 434 (Tex.App.—San Antonio 1991,

writ denied).    Unlike Brockie and the cases the court cites, Saxon has no

underlying claim for any damages.

      Horizontal Holes states the opposite of Saxon’s claim. Horizontal Holes

holds that a party may not recover attorney’s fees from a counterclaim without

damages. Horizontal Holes, Inc. v. River Valley Enterprises, Inc., 197 S.W.3d

834, 836 (Tex.App.—Dallas 2006, no pet.). In Horizontal Holes, the counter-

plaintiff was awarded attorney’s fees but there was no indication of actual damages

in the court’s findings of fact, conclusions of law, or judgment. Id. Horizontal

Holes held that an award of attorney’s fees without actual damages would be

improper. Id. Awarding Saxon attorney’s fees on the counterclaim without actual

damages would be in direct contradiction with Horizontal Holes.

      The case law referenced by Saxon does not expand recovery of attorney’s

fees to a point which counterclaims without any affirmative relief may recover

attorney’s fees. The evidence is legally sufficient to support the trial court’s denial

of Saxon’s attorney’s fee.

                                  CONCLUSION

      The evidence is factually sufficient to support the trial court’s finding that

Saxon violated the Bylaws and the Club did not violate the Bylaws. No evidence


                                          15
was presented a trial regarding a foreclosure by the Club and this should not be

addressed on appeal. The evidence is legally sufficient to support the trial court’s

directed verdict granted against Saxon and the denial of Saxon’s attorney’s fees.

The trial court’s judgment should be affirmed.

                                    PRAYER

      For these reasons, Appellee, Grove Club Lake, Inc., ask this Court to affirm

the trial court’s judgment.

                                             BOYD & BROWN, P.C.


                                      BY:        /s/ Kevin G. Giddens
                                             PAUL M. BOYD
                                             State Bar No. 02775700
                                             KEVIN G. GIDDENS
                                             State Bar No. 24076877
                                             1215 Pruitt Place
                                             Tyler, Texas 75703
                                             903/526-9000
                                             903/526-9001 (FAX)
                                             boydpc@tyler.net
                                             Kevin.giddens@suddenlinkmail.com

                                      ATTORNEYS FOR APPELLEE




                                        16
                        CERTIFICATE OF SERVICE

      I hereby certify that on this the 30th day of April, 2015, a true and correct

copy of the foregoing, Brief of Appellee Grove Club Lake, Inc., was duly served

via the following:


Sean Healy                                   Messenger
HEALY LAW OFFICES, P.C.
113 E. Houston St.                     X      Facsimile
Tyler, Texas 75702-8130
Telephone: (903) 592-7566                    Certified Mail – RRR
Fax: (903) 592-7589
genghis@healylaw.com                         First Class Mail

Counsel for Brandon Saxon                   Via Overnight
E. Glenn Thames, Jr.                        Messenger
POTTER MINTON, P.C.
110 N. College Avenue                  X      Facsimile
Suite 500
Tyler, Texas 75702                           Certified Mail – RRR
Telephone: (903) 597-8311
Fax: (903) 593-0846                          First Class Mail
glennthames@potterminton.com
                                             Via Overnight
Counsel for Brandon Saxon



                                                       /s/ Kevin G. Giddens




                                        17
                     CERTIFICATE OF COMPLIANCE

      Appellee, Grove Club Lake, Inc., state that there are 4,330 words contained

in Appellee’ Brief. In determining the word count, counsel for Appellee relies on

the word count stated on the bottom ruler in his Microsoft Word document.




                                     Respectfully submitted,

                                     BOYD & BROWN, P.C.



                                     BY:        /s/ Kevin G. Giddens
                                            PAUL M. BOYD
                                            State Bar No. 02775700
                                            KEVIN G. GIDDENS
                                            State Bar No. 24076877
                                            1215 Pruitt Place
                                            Tyler, Texas 75703
                                            903/526-9000
                                            903/526-9001 (FAX)
                                            boydpc@tyler.net
                                            Kevin.giddens@suddenlinkmail.com

                                     ATTORNEYS FOR APPELLEE




                                       18
Saxon’s Original Answer and Counterclaim




               Appendix 1
Appendix 1
Appendix 1
Appendix 1
