                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-18-00007-CV
                             ________________________

                       RONALD WHITTINGTON, APPELLANT

                                           V.

                   JAY GREEN AND CONNIE GREEN, APPELLEES



                    On Appeal from the County Court at Law Number 2
                                   Potter County, Texas
             Trial Court No. 101,936-2; Honorable Pamela C. Sirmon, Presiding


                                     January 14, 2020

                           MEMORANDUM OPINION
                        Before PIRTLE, PARKER, and DOSS, JJ.


      This is an appeal from an award of attorney’s fees in favor of Appellant, Ronald

Whittington, following a remand from this court after the reversal of a prior judgment in

favor of Appellees, Jay Green and Connie Green. Raising three issues, Whittington

contends the trial court erred by (1) concluding he was not entitled to attorney’s fees

pursuant to section 38.001 of the Texas Civil Practice and Remedies Code or (2) section
37.009 of the same code, and by (3) awarding less in attorney’s fees than was testified

to by Whittington’s attorney. We affirm the judgment of trial court.


       BACKGROUND

       In 2013, the Greens filed a lawsuit against Whittington alleging he had breached a

Compromise and Settlement Agreement reached in settlement of an earlier lawsuit filed

by the Greens against Whittington for damages allegedly sustained as a result of water

drainage from Whittington’s higher-elevation property onto the Greens’ lower-elevation

property.   In the litigation concerning the Compromise and Settlement Agreement,

Whittington filed a counterclaim against the Greens seeking a declaratory judgment that

he had fully complied with the terms of that agreement.          Whittington did not file a

counterclaim seeking damages for any alleged breach of the Compromise and Settlement

Agreement by the Greens; however, he did seek damages pursuant section 11.086 of the

Texas Water Code, for an alleged improper diversion of ground water. Following a bench

trial, the court ruled in favor of the Greens. At that time, a judgment was entered awarding

the Greens affirmative injunctive relief, damages, and attorney’s fees.


       On appeal, this court found that the trial court had erred in its interpretation of the

Compromise and Settlement Agreement. See Whittington v. Green, No. 07-15-00102-

CV, 2016 Tex. App. LEXIS 13533, at *16 (Tex. App.—Amarillo Dec. 20, 2016, pet. denied)

(mem. op). We reversed the judgment of the trial court, entered a declaratory judgment

in favor of Whittington, and remanded the matter for consideration of Whittington’s claim

for attorney’s fees pursuant to either section 37.009 (declaratory judgment) or 38.001

(breach of contract) of the Texas Civil Practice and Remedies Code.



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        On remand, the Greens maintained that Whittington was not entitled to the

recovery of attorney’s fees pursuant to section 38.001 because he did not sue for breach

of contract and he did not recover any monetary damages. The Greens further argued

that the trial court was not bound to award Whittington the full recovery of his attorney’s

fees pursuant to the Declaratory Judgments Act if the court found that a lesser amount,

or no amount at all, was equitable or just. Based on evidence presented during the

original trial, the trial court awarded Whittington the amount of $2,500 as “just and

equitable” attorney’s fees.1 Whittington filed this appeal.


        APPLICABLE LAW

        To secure an award of attorney’s fees from an opponent, the prevailing party must

prove that (1) recovery of attorney’s fees is legally authorized and (2) the requested

attorney’s fees are reasonable and necessary for legal representation, so that such an

award will fairly compensate the prevailing party generally for its losses resulting from the

litigation process. Rohrmoos Venture v. UTSW DVA Healthcare, L.L.P., 578 S.W.3d 469,

487 (Tex. 2019). To “prevail” means to obtain actual and meaningful relief, something

that materially alters the legal relationship between the parties. Id. at 485-86. No one

disputes that Whittington was the prevailing party in this litigation.


        In that regard, we note that a prevailing party does not have an inherent right to

recover attorney’s fees from the non-prevailing party unless there is specific statutory or

contractual authority allowing it. Id. at 486. Accordingly, an appellate court reviews a

lower court’s decision to award attorney’s fees under a bifurcated standard of review.


        1 Whittington’s attorney testified that his reasonable and necessary attorney’s fees through trial
totaled $28,000. This testimony was unchallenged by Green.

                                                    3
First, we must determine, as a matter of law, whether a party is entitled to the recovery of

attorney’s fees. That decision is a question of law which we review under a de novo

standard. Murphy v. Exter Fin. Corp., 558 S.W.3d 207, 214 (Tex. App.—Texarkana 2018,

no pet.). Once a trial court has determined that attorney’s fees are allowed, it must then

decide the amount of attorney’s fees to be awarded. We review that decision based on

the sufficiency of the evidence and the reasonableness and necessity of the award. The

party seeking a recovery of attorney’s fees bears the burden of proving that the fees

sought are reasonable and necessary. Rohrmoos Venture, 578 S.W.3d at 484.


       ANALYSIS

       Here, the trial court was expressly limited to considering whether Whittington was

entitled to the recovery of attorney’s fees under (1) section 38.001 of the Texas Civil

Practice and Remedies Code pertaining to the recovery of attorney’s fees in a breach of

contract proceeding and (2) section 37.009 of the same code pertaining to the recovery

of attorney’s fees in a declaratory judgment proceeding.


       SECTION 38.001

       The Texas Civil Practice and Remedies Code provides for the recovery of

reasonable attorney’s fees to the prevailing party on a claim based on an oral or written

contract. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2015). The Greens

maintain that Whittington is not entitled to recovery of attorney’s fees pursuant to section

38.001(8) because he never pleaded a contract cause of action as a basis for the recovery

of his attorney’s fees and he did not recover monetary damages. We agree. While

Whittington, as defendant, did file a counterclaim based on numerous theories, including:



                                             4
(1) violation of the Texas Water Code,2 (2) trespass, (3) nuisance, (4) equitable relief, and

(5) the Uniform Declaratory Judgments Act,3 he never pleaded a breach of contract cause

of action.


       While Whittington acknowledges that section 38.001 does not generally provide

for the recovery of attorney’s fees in an action involving the pure defense of a contract

claim, he contends that he is nevertheless entitled to recover attorney’s fees because his

counterclaims were “encompassed by . . . and . . . indistinguishable” from the Greens’

breach of contract cause of action. See De La Rosa v. Kaples, 812 S.W.2d 432, 434

(Tex. App.—San Antonio 1991, writ denied) (finding an award of attorney’s fees

appropriate for the defense of a contract claim where “the matters encompassed by the

claim and counterclaim are indistinguishable” and arose from the same transaction). But

see G.R.A.V.I.T.Y. Enters. v. Reece Supply Co., 177 S.W.3d 537, 551 (Tex. App.—Dallas

2005, no pet.) (declining to follow De La Rosa in light of Mustang Pipeline Co. v. Driver

Pipeline Co., 134 S.W.3d 195 (Tex. 2004) and Green Int’l v. Solis, 951 S.W.2d 384 (Tex.

1997)). In both Green Int’l and Mustang Pipeline Co., the Supreme Court determined that

even though a party seeking attorney’s fees was the prevailing party on a breach of

contract cause of action, they could not recover attorney’s fees pursuant to section

38.001(8) because they failed to recover any monetary damages. Therefore, to the extent

De La Rosa is inconsistent with the Supreme Court’s pronouncements in Green Int’l and

Mustang Pipeline Co., we join our sister court in declining to follow it.          Because




       2   TEX. WATER CODE ANN. §§ 11.081-.120 (West 2018).

       3   TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (West 2015).

                                                   5
Whittington did not recover monetary damages from Green, we find he was not entitled

to recover attorney’s fees under section 38.001(8).


       Furthermore, in issuing its ruling, the trial court clearly stated that the basis for

awarding Whittington recovery of attorney’s fees in this case was the fact that he was the

prevailing party in the declaratory judgment action, not the action based on breach of

contract. Therefore, we hold the trial court did not err in failing to award attorney’s fees

in accordance with section 38.001(8) of the Texas Civil Practice and Remedies Code.

Whittington’s first issue is overruled.


       SECTION 37.009

       An award of attorney’s fees is also authorized under the provisions of section

37.009 of the Texas Civil Practice and Remedies Code. That section provides, “[i]n any

proceeding under this chapter [the Uniform Declaratory Judgments Act], the court may

award costs and reasonable and necessary attorney’s fees as are equitable and just.”

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015). (Emphasis added). Under

the Uniform Declaratory Judgments Act, attorney’s fees can be awarded to either party

regardless of who prevails, so long as the award is equitable and just. Apex Fin. Corp. v.

Garza, 155 S.W.3d 230, 238 (Tex. App.—Dallas 2004, pet. denied). Because an award

of attorney’s fees under the Uniform Declaratory Judgments Act is not mandatory, the

sufficiency of an award of attorney’s fees is a matter left to the sound discretion of the trial

court, subject to the requirement that any fees awarded be reasonable and necessary,

which are matters of fact, and to the additional requirement that the fees be equitable and

just, which are matters of law.



                                               6
       While Whittington’s second issue contends the trial court erred by finding that he

was not entitled to recover attorney’s fees pursuant to section 37.009, the actual gist of

his complaint is that the trial court did not award him the amount of attorney’s fees he

requested (a matter more thoroughly discussed with regard to Whittington’s third issue).

Therefore, to the extent that his arguments and authorities do not address the issue

presented, that issue has been waived. ERI Consulting Eng’rs, Inc. v. Swinnea, 318

S.W.3d 867, 880 (Tex. 2010) (holding that failure to provide citation or argument and

analysis as to an appellate issue may waive that issue). That being said, because it is

clear that the trial court did award Whittington the recovery of attorney’s fees pursuant to

section 37.009, his second issue is overruled.


       SUFFICIENCY OF THE AWARD OF ATTORNEY’S FEES

       By his third and final issue, Whittington contends the trial court erred by arbitrarily

reducing the amount of attorney’s fees awarded due to an erroneous conclusion that he

was required to “segregate” his attorney’s fees. The record shows that Whittington

requested a total of $28,000 in attorney’s fees (through trial), with additional sums for

services in the event of an appeal ($10,000 through the intermediate appellate court and

$10,000 through the Texas Supreme Court). The record reflects that his attorney’s

testimony consisted of sixteen lines of text, culminating with the conclusory statement that

“reasonable attorneys’ fees incurred in connection with this matter through trial would be

$28,000 . . . .”


       Once a trial court has determined that attorney’s fees are allowed, it must then

decide the amount of attorney’s fees to be awarded. We review that decision based on

the sufficiency of the evidence and the reasonableness and necessity of the award.

                                              7
Rohrmoos Venture, 578 S.W.3d at 484.              Because attorney’s fee awards are

compensatory in nature, only fees that are reasonable and necessary to the prosecution

of the prevailing claim are recoverable by the prevailing party. Id. at 487. In determining

whether a fee award is reasonable and necessary, the amount contracted for between

the prevailing party and his attorney does not necessarily establish that the fee is

reasonable and necessary. Id. at 487-88. As stated above, in this case we have little

more than counsel’s opinion that the sum of $28,000 was reasonable and necessary.


       Assuming for the sake of argument that the sums testified to were both reasonable

and necessary, where attorney’s fees are being awarded pursuant to section 37.009 of

the Texas Civil Practice and Remedies Code, we are further bound by the requirement

that the fee awarded be equitable and just. Unlike a determination of “reasonable and

necessary,” a determination of “equitable and just” is a matter of law question.

Accordingly, subject to the requirement that the fees awarded be reasonable and

necessary, we review a trial court’s decision as to the amount of attorney’s fees in a

declaratory judgment action under an abuse of discretion standard. Apex Fin. Corp., 155

S.W.3d at 238. In that regard, a trial court abuses its discretion when it acts without

reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). Additionally, when reviewing matters committed to

the trial court’s discretion, a court of appeals may not substitute its judgment for that of

the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).


       Here, the dispute between the parties had a long and sordid history—a dispute, a

lawsuit, a settlement, another dispute, another lawsuit, a judgment, an appeal, a reversal,

another dispute, and another judgment. In addition, throughout the course of the dispute,

                                             8
the legal theory morphed from a trespass claim, to a nuisance claim, to a tort claim, to a

breach of contract claim. Given the acrimonious nature of this dispute between adjacent

landowners, we cannot say that the trial court’s decision to award Whittington less than

the full amount of his claimed fees was arbitrary or unreasonable. A reasonable jurist

could have had many different reasons for discounting the amount of the attorney’s fees

claimed and we will not second-guess those reasons. As such, we find the trial court did

not abuse its discretion in awarding less than the full amount of attorney’s fees claimed.

Whittington’s third issue is overruled.


       CONCLUSION

       The judgment of the trial court is affirmed.




                                                 Patrick A. Pirtle
                                                      Justice




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