Edom Corner, LLC and Earl Berry, Jr. v. It's the Berry's, LLC ( 2015 )


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  •                                                                            ACCEPTED
    12-14-00365-CV
    TWELFTH COURT OF APPEALS
    TYLER, TEXAS
    5/6/2015 8:28:31 AM
    CATHY LUSK
    CLERK
    No. 12-14-00365-CV
    RECEIVED IN
    12th COURT OF APPEALS
    TYLER, TEXAS
    IN THE COURT OF APPEALS               5/6/2015 8:28:31 AM
    TWELFTH DISTRICT OF TEXAS                  CATHY S. LUSK
    AT TYLER                              Clerk
    EDOM CORNER, LLC AND EARL A. BERRY, JR.,                5/6/2015
    APPELLANTS
    v.
    IT’S THE BERRYS, LLC d/b/a MARY ELLEN’S,
    APPELLEE
    On Appeal from the 294th Judicial District Court
    Of Van Zandt County, Texas
    Trial Court Cause 09-00138
    Hon. Teresa Drum, Judge Presiding
    _____
    APPELLANTS’ BRIEF
    _____
    Katherine A. Ferguson           Richard L. Ray
    SBN 06918050                    SBN 16606300
    Renshaw, Davis & Ferguson,      Ray & Thatcher, P.C.
    L.L.P.                          300 S. Trade Days Blvd.
    2900 Lee Street, Suite 102      Canton, Texas 75103
    P.O. Box 21                     Telephone: (903) 567-2051
    Greenville, Texas 75403-0021    Facsimile: (903) 567-6998
    Telephone: (903) 454-6050
    Facsimile: (903) 454-4898
    Email: rdflawoffice@yahoo.com
    ATTORNEYS FOR APPELLANTS EDOM CORNER, LLC
    AND EARL A. BERRY, JR.
    ORAL ARGUMENT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    Appellants:
    Edom Corner, LLC
    Earl A. Berry, Jr.
    Appellants’ Attorneys:
    Katherine A. Ferguson
    Renshaw, Davis & Ferguson, LLP
    P.O. Box 21
    Greenville, Texas 75403-0021
    Richard L. Ray
    Ray & Thatcher, P.C.
    300 S. Trade Days Blvd.
    Canton, Texas 75103
    Appellants’ Trial Attorneys:
    Katherine A. Ferguson
    Renshaw, Davis & Ferguson, LLP
    P.O. Box 21
    Greenville, Texas 75403-0021
    Richard L. Ray
    Ray & Thatcher, P.C.
    300 S. Trade Days Blvd.
    Canton, Texas 75103
    Appellee:
    It’s the Berry’s, LLC d/b/a Mary Ellen’s
    Appellee’s Attorneys:
    Larry M. Lesh, Esq.
    1 Forest Park Drive
    Richardson, Texas 75080
    R. Paul Elliot, Esq.
    301 S. Main St.
    Canton, Texas 75103
    Appellee’s Trial Attorneys:
    Larry M. Lesh, Esq.
    1 Forest Park Drive
    2
    Richardson, Texas 75080
    R. Paul Elliot, Esq.
    301 S. Main St.
    Canton, Texas 75103
    Trial Court:
    Hon. Teresa A. Drum
    294th Judicial District Court
    3
    TABLE OF CONTENTS
    Identity of the Parties and Counsel ............................................................................ 2
    Table of Contents ....................................................................................................... 4
    Index of Authorities ................................................................................................... 5
    Statement of the Case................................................................................................. 8
    Statement Regarding Oral Argument ........................................................................ 8
    Issues Presented ......................................................................................................... 8
    Issue One
    THE TRIAL COUR ERRED IN FINDING THAT APPELLEEE WAS
    THE PREVAILING PARTY IN THE LITIGATION
    Issue Two
    THE TRIAL COURT ERRED IN FINDING NEITHER RES JUDICATA
    NOR COLLATERAL ESTOPPEL BARRED APPELLEE’S SUIT
    Issue Three
    THE TRIAL COURT ERRED IN FINDING BERRY INDIVIDUALLY
    LIABLE IN APPELLEE’S SUIT
    Issue Four
    THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES ON
    SUMMARY JUDGMENT TO APPELLEE
    Statement of the Facts ................................................................................................ 9
    Summary of Argument ............................................................................................ 16
    Argument and Authorities........................................................................................ 17
    Conclusion and Prayer for relief .............................................................................. 35
    Certificate of compliance of typeface and Word Count .......................................... 36
    Certificate of Service ............................................................................................... 36
    4
    INDEX OF AUTHORITIES
    Federal Cases:
    Citizens for a Better Environment v. The Steel Co.,
    
    230 F.3d 923
    (7th Cir. 2000).................................................................................. 20
    Grynberg v. Praxair, Inc.,
    
    389 F.3d 1038
    (10th Cir. 2004)............................................................................. 20
    State Cases:
    Armstrong v. Rice,
    
    556 S.W.2d 620
    (Tex. App. – Texarkana 1977, reh’g denied) ............................ 32
    Carbon El Norteno, LLV v. Sanchez,
    
    2008 WL 3971554
    (Tex. App. – Corpus Christi 2008, no pet.) ............................ 30
    CSFB 1998-PI Buffalo Speedway Office, Ltd. Partnership v. Amtech Elevator
    Services, 
    2007 WL 3294287
    (Tex. App. – Houston [1st Dist.] Aug. 19, 2010) ...... 33
    CU Lloyd’s of Tex. v. Feldman,
    
    977 S.W.2d 568
    (Tex. 1998) ................................................................................. 17
    Engel v. Pettit,
    
    713 S.W.2d 770
    (Tex. App. – Houston [14th Dist.] 1986)..................................... 33
    Estate of Tyner,
    
    292 S.W.3d 179
    (Tex. App. – Tyler 2009) ........................................................... 33
    Fidelity Mutual Life Ins. Co. v. Kaminsky,
    
    820 S.W.2d 878
    (Tex. App. – Texarkana 1992, writ denied) .............................. 24
    Gillam v. Sullivan,
    
    352 S.W.2d 507
    (Tex. Civ. App. – Ft. Worth 1961, writ ref’d n.r.e.) ................... 32
    Green International, Inc. v. Solis,
    
    951 S.W.2d 384
    (Tex. 1997) ................................................................................. 34
    Hackberry Creek Country Club, Inc. v. Hackberry Creek Homeowners Assoc.,
    5
    
    205 S.W.3d 46
    (Tex. App. – Dallas 2006, pet. denied) ..................................28, 29
    Healthcare Cable Systems, Inc. v. The Good Shepherd Hospital, Inc.,
    
    180 S.W.2d 787
    (Tex. App. – Tyler 2005, no pet.) .............................................. 28
    Igal v. Brightstar Information Technology Group, Inc.,
    
    250 S.W.3d 78
    (Tex. 2008) .............................................................................24, 26
    In Re Nalle Plastics Family Ltd. Partnership,
    
    406 S.W.3d 168
    (Tex. 2013) ...........................................................................34, 35
    Insurance Co. of the State of Pennsylvania v. Oraco,
    
    170 S.W.3d 129
    (Tex. App. – San Antonio 2005, no pet.).............................18, 19
    It’s the Berry’s, LLC v. Edom Corner, LLC,
    
    271 S.W.3d 765
    (Tex. App. – Amarillo 2008, no pet.) ........................................ 19
    King Ranch, Inc. v. Chapman,
    
    118 S.W.3d 742
    (Tex. 2003) ................................................................................. 17
    Malcomson Road Utility Dist. v. Newsome,
    
    171 S.W.3d 257
    (Tex. App. – Houston [1st Dist.] 2005) ...................................... 
    17 Mart. v
    . Dosoh I, Ltd., Inc.,
    
    2 S.W.3d 350
    (Tex. App. – San Antonio 1999, pet. denied) ................................ 31
    MBM Financial Corp. v. Woodlands Operating Co.,
    
    292 S.W.3d 660
    (Tex. 2009) ................................................................................. 34
    Mediacomp, Inc. v. Capital Cities Communication,
    698 S.W.2d. 207 (Tex. App. – Houston [1st. Dist.] 1985, no pet.) ....................... 28
    Musgrave v. Owen,
    
    67 S.W.3d 513
    (Tex. App. – Texarkana 2002) ..................................................... 27
    Mustang Pipeline Co. v. Driver Pipeline Co., Inc.,
    
    134 S.W.3d 195
    (Tex. 2004) ................................................................................. 34
    Samedan Oil Corp. v. Louis Dreyfus Nat. Gas Corp.,
    
    52 S.W.3d 788
    (Tex. App. – Eastland 2001, pet. denied) .................................... 31
    6
    Smith v. Patrick W.Y. Tam Trust,
    
    296 S.W.3d 545
    (Tex. 2009) ................................................................................. 33
    State Farm Life Ins. Co. v. Beaston,
    
    907 S.W.2d 430
    ..................................................................................................... 34
    Sugarland Bus. Ctr., Ltd. v. Norman,
    
    624 S.W.2d 639
    (Tex. App. – Houston [14th Dist.] 1981, no writ) ...................... 32
    Twin City Fire Ins. Co. v. Vega-Garcia,
    
    223 S.W.3d 762
    (Tex. App. – Dallas 2007, pet. denied) ................................21, 22
    State Statutes:
    TEX. BUS. ORGAN. CODE SEC. 101.113 .................................................................... 29
    TEX. BUS. ORGAN. CODE SEC. 101.114 .............................................................. 29, 30
    TEX. CIV. PRAC. & REM. CODE SEC. 37.009 ............................................................. 31
    TEX. CIV. PRAC. & REM. CODE SEC. 38.001 ....................................................... 34, 35
    TEX. R. APP. P. SEC. 39............................................................................................... 8
    TEX. R. CIV. P. 65 ..................................................................................................... 32
    7
    STATEMENT OF THE CASE
    This case arises from a series of litigation between Edom Corner, LLC
    (“Edom Corner”) and It’s the Berry’s, LLC d/b/a Mary Ellen’s (“ITB”) relating to
    a lease of commercial property.
    STATEMENT REGARDING ORAL ARGUMENT
    Appellants    request   oral    argument.       See    TEX.    R.   APP.    P.
    39 (2015).   Although the facts and legal arguments are adequately presented in this
    Brief, Appellants believe that this Court's decisional process will be significantly
    aided by oral argument.
    ISSUES PRESENTED
    Issue Number One
    THE TRIAL COUR ERRED IN FINDING THAT APPELLEE WAS
    THE PREVAILING PARTY IN THE LITIGATION
    Issue Number Two
    THE TRIAL COURT ERRED IN FINDING NEITHER RES JUDICATA OR
    COLLATERAL ESTOPPEL BARRED APPELLEE’S SUIT
    Issue Number Three
    THE TRIAL COURT ERRED IN FINDING BERRY INDIVIDUALLY
    LIABLE IN APPELLEE’S SUIT
    Issue Number Four
    THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES ON
    SUMMARY JUDGMENT TO APPELLEE
    8
    STATEMENT OF THE FACTS
    Appellant Edom Corner, LLC (“Edom Corner”) was a limited liability
    company organized under the laws of the State of Texas and having its principal
    place of business in Van Zandt County, Texas. Appellant Earl A. Berry, Jr.
    (“Berry”) is an individual living in Van Zandt County, Texas. Berry was also a
    member of defendant Edom Corner.           Appellee It’s the Berry’s, LLC d/b/a Mary
    Ellen’s (“ITB”) is a limited liability company organized and existing under the laws
    of the State of Texas and having its principal offices and principal place of business
    in Van Zandt County, Texas.
    From May of 2006 until October of 2008, Edom Corner and ITB were
    involved in a series of litigation regarding their respective rights and obligations
    under a commercial property lease. This litigation involved only Edom Corner and
    ITB as Plaintiff and Defendant, respectively. The end result of the series of litigation
    was that ITB was no longer a tenant of Edom Corner. Subsequent to the conclusion
    of this series of litigation, ITB filed this cause asserting a claim for its attorney’s fees
    in the previous series of litigation (CR VOL. 1, #13), despite the fact that ITB had
    had either made such claims in the previous series of litigation or such claims were
    not made but were compulsory counterclaims (such as adding Berry individually as
    a party to the litigation) therein.
    9
    The history of the litigation between Appellants and Appellee relates to a retail
    lease of real property. On or about September 1, 2004, Edom Corner entered into a
    Retail Lease with It’s The Berry’s, LLC, the term of which would expire on August
    31, 2007 (the “Lease”). (CR Vol. 2, #342).
    On or about May 12, 2006, Edom Corner initiated litigation against ITB in the
    Justice of the Peace Court, Precinct 4 in Cause No. E40196.              That suit was
    transferred to the 294th Judicial District Court of Van Zandt County and consolidated
    as cause No. 06-00428 (the “District Court Case”). ITB counterclaimed in that
    action for a declaratory judgment that ITB was not in breach of the Lease and for
    attorney’s fees. A bench trial was held in July of 2006 and the Trial Court signed a
    judgment awarding Edom Corner possession of the leased premises, a writ of
    possession, costs and attorney’s fees (the “Trial Court Judgment”). (CR Vol. 2,
    #285) The Trial Court Judgment also decreed that ITB take nothing by its
    counterclaims. The court set a supersedeas bond for the monetary portions of the
    Trial Court Judgment, but did not permit Appellee to supersede the non-monetary
    portions, which included a writ of possession for the leased premises. (CR Vol. 2,
    #285)
    In the course of preparing to appeal the District Court Case, ITB filed a
    petition for writ of mandamus in the Texas Court of Appeals for the Twelfth District
    sitting in Tyler to force the court to set a supersedeas bond. This was filed as cause
    10
    no. 07-06-298. The mandamus was conditionally granted unless the trial court set a
    supersedeas bond for the non-monetary portions of the Judgment. The trial court set
    a supersedeas bond for the non-monetary portion of the Judgment in the amount of
    $50,000.
    After the court set the supersedeas bond, but prior to the posting of the
    supersedeas bond by ITB, on or about October 26, 2006 Edom Corner initiated
    litigation against Park Cities Bank (Cause No. 06-00829) in the 294th District Court
    of Van Zandt County, Texas (the “Park Cities Garnishment”) and against the First
    State Bank of Ben Wheeler (Cause No. 06-00830) (the “Ben Wheeler Garnishment”)
    in an attempt to execute on the Judgment.      On October 30, 2006, ITB filed an
    Emergency Motion to Dissolve the Writ of Garnishment on the basis that subsequent
    to the filing of the Park Cities Garnishment and the Ben Wheeler Garnishment
    actions, ITB made a cash deposit in lieu of supersedeas bond on October 30, 2006
    to supersede the Judgment. (CR Vol. 2, # 287) On November 2, 2006, the Writs of
    Garnishment in the Ben Wheeler Garnishment and the Park Cities Garnishment were
    dissolved.
    The appeal of the District Court Case was initially assigned to the Twelfth
    Court of Appeals at Tyler but, due to docketing concerns, was transferred to the
    Seventh Court of Appeals at Amarillo under Cause No. 07—6-00390-CV (the
    “Amarillo Appeal”).
    11
    On or about January 5, 2007, after the conclusion of the District Court Case
    and while the Amarillo Appeal was pending, Edom Corner instituted another action
    against ITB for breaches of the Lease which occurred post-Judgment. This was filed
    in the Justice Court, Precinct 4, Place 1 under Cause No. E40222 (the Second Breach
    Suit”). ITB filed a Plea in Abatement Subject To, And Without Waiving, Motion to
    Dismiss, alleging that the matters in this action were the same as in the District Court
    Case. The Plea in Abatement was granted and the Second Breach Suit was dismissed
    and no fees were awarded to ITB. (CR Vol. 2, #303)
    During the Second Breach Suit, Edom Corner learned of a possible conflict
    of interest with its former attorney joining the firm of Dan Anderson, who was
    representing ITB.     Edom Corner therefore filed motions to disqualify Dan
    Anderson’s firm and Larry Lesh, which led ultimately to a petition for writ of
    mandamus in the Texas Supreme Court in Cause No. 07-0537 (the “Disqualification
    Mandamus”). The Disqualification Mandamus was denied with no attorney’s fees
    having been awarded to ITB. (CR Vol. 2, #304)
    Edom Corner subsequently appealed the Second Breach Suit. That appeal
    was docketed as Cause No. CV04217 in the County Court at Law of Van Zandt
    County, Texas. ITB filed a Motion to Dismiss Appeal, and did not request attorney’s
    fees. The Second Breach Suit was subsequently transferred to the 294 th District
    Court under Cause No. 07-00187, and there was no counterclaim by ITB for
    12
    attorney’s fees. (CR Vol. 2, #305) Edom Corner later non-suited this cause on
    September 4, 2007. (CR Vol. 3, #309)
    On or about May 1, 2007, Edom Corner posted a notice to vacate for non-
    payment of rent on the front door of the property leased by ITB. In response to that
    posting, on or about May 5, 2007, ITB sued Edom Corner in Cause No. 07-00341 in
    the 294th Judicial District Court (the “Temporary Injunction Action”), seeking a
    temporary injunction against Edom Corner instituting any eviction action and for
    costs and attorney’s fees. (CR Vol. 2 # 310) On May 8, 2007, after hearing, the
    court ruled that ITB’s petition for a temporary injunction was in all things denied.
    (CR Vol. 2 # 317)
    On or about May 10, 2007, Edom Corner filed a forcible entry and detainer
    action against ITB in the Justice Court, Precinct 4, Place 1 of Van Zandt County, in
    Cause No. E40233 (the “Third Breach Suit”). ITB filed a counterclaim including a
    request for attorney’s fees and costs, but did not seek to add Berry individually as a
    party to the suit. (CR Vol. 2, #318) On May 23, 2007, Judge Scott Shinn entered a
    judgment in favor of ITB but denied its request for attorney’s fees. (CR Vol. 2,
    #322) Edom Corner appealed the Third Breach Suit to the County Court at Law of
    Van Zandt County, Texas under Cause No. CV04237. ITB again filed a Plea in
    Abatement, and Subject Thereto, Amended Answer and Counterclaim, alleging that
    the subject of the suit was identical to the pending District Court Case, but again did
    13
    not file any claim against Berry individually. (CR Vol. 2, # 323) This case was non-
    suited on September 4, 2007. (CR. Vol. 2, #329)
    On or about October 28, 2008, the Amarillo Court of Appeals issued its
    opinion in the Amarillo Appeal. (CR Vol. 2, #331). This decision, which became
    final, found that the district court lacked subject matter jurisdiction over Edom
    Corner’s forcible entry claims against ITB in the District Court Case and reversed
    that portion of the Judgment. The Amarillo Court of Appeals also affirmed the
    portions of the Judgment which denied all of ITB’s claims, including ITB’s claims
    for attorney’s fees and costs. (CR Vol. 2, #331) The District Court Case, the Park
    Cities Garnishment, the Ben Wheeler Garnishment, the Second Breach Suit, the
    Disqualification Mandamus, the Temporary Injunction Action, the Third Breach
    Suit, and the Amarillo Appeal are referred to collectively herein as the “Litigation.”
    On January 9, 2009, Appellee sent a demand notice to Appellant Edom Corner
    (CR Vol. 1, #19) but did not include Appellant Berry in the demand. On February
    26, 2009, Appellee filed suit against Appellant Edom Corner, alleging that Appellant
    Edom Corner was liable to Appellee for attorney’s fees arising out of the Litigation.
    (CR Vol. 1, #13). On May 28, 2009, Appellee filed a First Amended Original
    Petition (CR Vo1. 1, #114) wherein for the first time Appellee sought any sort of
    recovery against Appellee Berry arising out of the Litigation.
    14
    This suit proceeded, with numerous motions for summary judgment filed by
    both Appellee and Appellants. (CR Vol. 1, #123; CR Vol. 2, #259). These motions
    were all denied by the Trial Court. (CR Vol. 5, #851; CR Vol. 5, #884; CR Vol. 5,
    #885). The parties were ordered to mediation, but no settlement was reached. (CR
    Vol. 7, #1043). On April 4, 2013, the parties filed a Joint Motion for Determination
    of Controlling Questions of Law and for Interlocutory Appeal (CR Vol. 7, #1050)
    and the Trial Court ruled on those issues on May 8, 2014. (CR Vol. 8, #1428),
    wherein the Trial Court ruled in favor of Appellee on all issues submitted. Appellee
    promptly filed its Third Amended Motion for Summary Judgment (CR Vol. 8,
    #1435) wherein Appellee sought recovery of the attorney’s fees incurred in the
    Litigation as well as for pursuing this case. Appellants filed their Response to
    Plaintiff’s Motion for Final Summary Judgment on August 1, 2014 (CR Vol. 8, #
    1464). The Trial Court heard that matter on August 11, 2014 (RR Vol. 6). On
    October 16, 2014, the Trial Court entered its Final Summary Judgment (CR Vol. 9,
    #1619). Appellants filed their Motion for New Trial (CR Vol. 9, #1625) on
    November 6, 2014 and filed their First Amended Motion for New Trial on December
    17, 2014. (CR Vol. 10, #1699) On December 29, 2014 Appellants filed their Notice
    of Appeal (CR Vol. 10, #1705)
    15
    SUMMARY OF ARGUMENT
    The Trial Court erred in granting judgment for the Appellee in this suit. The
    suit was nothing more than a request for attorney’s fees arising out of the prior
    litigation, and the prior judgments in those cases specifically denied the recovery of
    attorney’s fees for Appellee. Therefore those claims are barred by res judicata. To
    the extent Appellee did not seek attorney’s fees in those suits, the claims were
    compulsory counterclaims which Appellee was required to assert or waive forever.
    The claims against Appellant Berry individually are also barred by res judicata. The
    Appellee never added Appellant Berry as a party to any of the prior litigation. The
    claims of Appellee were mandatory claims against Appellant Berry and are now
    barred by res judicata.     Additionally, the provisions of the Texas Business
    Organizations Code prohibit Appellee from seeking recovery against Appellant
    Berry solely by his status as a member of Appellant Edom Corner. Finally, the Trial
    Court erred in granting attorney’s fees to Appellee on summary judgment because
    the Appellee was not the prevailing party, the claims were barred by res judicata,
    and Appellee wholly failed to provide any competent summary judgment evidence
    in support of their Third Amended Motion for Summary Judgment. Furthermore,
    Appellants, through the affidavit of expert Martin R. Bennett, raised a material issue
    of fact relating to attorney’s fees. Finally, pursuant to the provisions of Tex. Civ.
    Prac. Rem. Code Sec. 38.001 because Appellee did not recover any actual damages
    16
    in any of the cases that compromised the litigation. Because it did not recover actual
    damages, it is not entitled to recover attorney’s fees. The Trial Court erred in
    granting summary judgment in favor of Appellee.
    ARGUMENT AND AUTHORITIES
    Standard of Review
    The Trial Court did not conduct any evidentiary hearings or receive any
    testimony in this matter. The Trial Court ruled strictly on the pleadings of the parties.
    In effect, the Trial Court granted a no-evidence summary judgment motion in favor
    of Appellees. Both sides moved for summary judgment (CR Vol. 1, #28; CR Vol.
    1, #123; CR Vol. 2, #259; CR Vol. 7, #1056; CR Vol. 8, #1310; CR Vol. 8, #1435)
    and the request for the Trial Court to rule on controlling issues of law was, in effect,
    a request for a ruling on the summary judgment motions. The standard of review,
    then, is for this court to consider the evidence in the light most favorable to the non-
    movant (Appellants). King Ranch, Inc. v. Chapman, 
    118 S.W.3d 742
    , 750 (Tex.
    2003) “When both sides move for summary judgment and the trial court grants one
    motion and denies the other, [the appellate court] can consider both motions, their
    evidence, and their issues and render the judgment the trial court should have
    rendered.” Malcomson Road Utility Dist. V. Newsom, 
    171 S.W.3d 257
    , 263 (Tex.
    App. – Houston [1st Dist.] 2005). See also CU Lloyd’s of Tex. v. Feldman, 
    977 S.W.2d 568
    , 569 (Tex. 1998)
    17
    ISSUE ONE: THE TRIAL COUR ERRED IN FINDING THAT
    APPELLEE WAS THE PREVAILING PARTY IN THE LITIGATION
    In the Order on Joint Motion for Determination of Controlling Questions of
    Law and For Interlocutory Appeal, the Trial court held that Appellee “was the
    prevailing party in the litigation . . . described in the first amended original petition
    filed in this action.” (CR Vol. 8, #1428-29). The Trial Court erred in this ruling.
    “A prevailing party is one who is vindicated by the trial court’s judgment.”
    Insurance Co. of the State of Pennsylvania v. Oraco, 
    170 S.W.3d 129
    , 134 (Tex.
    App. – San Antonio 2005, no pet.)                      As shown below, Appellees were never
    vindicated by any trial court throughout the course of the Litigation. Appellant will
    address each parcel of the Litigation separately.
    Appellee did not prevail in the District Court Case
    The District Court case was a forcible entry and detainer case filed by
    Appellant Edom Corner. Appellee filed an amended counter-petition in the District
    Court Case seeking a declaratory judgment that Appellee was not in default of the
    Lease and requested attorney’s fees (see Exhibit A-1 to the Affidavit of Jeffrey W.
    Hurt)1 In the Judgment, the Trial Court specifically denied Appellee’s request for a
    declaratory judgment and for attorney’s fees (CR Vol. 2, #285) Appellee appealed
    the District Court Judgment, alleging, among other grounds, that ITB was the
    1
    The Affidavit of Jeffrey W. Hurt and all exhibits thereto which were attached to Defendants’ Motion for Summary
    Judgment are incorporated herein by reference as if set forth fully in this Brief. (CR Vol. 2, #273 - 330)
    18
    “prevailing party” in the District Court Case and was entitled to attorney’s fees. The
    Seventh Court of Appeals in the Amarillo Appeal held that the Trial Court lacked
    jurisdiction over the forcible entry and detainer suit brought by Edom Corner and
    severed and dismissed those portions of the Judgment. However, the appellate court
    specifically found that Appellee did “not contend that the absence of an award of
    attorney’s fees under the Uniform Declaratory Judgments Act . . . was error. . . . We
    overrule [ITB’s] eleventh issue as to its claim for attorney’s fees.” It’s the Berry’s,
    LLC v. Edom Corner, LLC, 
    271 S.W.3d 765
    , 772 (Tex. App. – Amarillo 2008, no
    pet) (emphasis added). Appellee was not awarded attorneys’ fees and did not appeal
    the decision in the Amarillo Appeal. Therefore the appellate court held Appellee
    did not prevail in the Litigation and the denial of an award of attorneys’ fees to
    Appellee in the District Court Case was a final order.
    Appellee was not the prevailing party in the District Court Case.            “A
    prevailing party is one who is vindicated by the trial court’s judgment.” 
    Oraco, 170 S.W.3d at 134
    . Far from vindicating Appellee, the District Court Judgment denied
    Appellee’s claim. The appellate court affirmed that denial. All Appellee succeeded
    in doing in the District Court Case was protracting the litigation by not raising the
    jurisdictional claim until the Amarillo Appeal. “A defendant may persuade the court
    that the plaintiff has sued too soon, or in the wrong court, or failed to jump through
    a procedural hoop. Then the dispute will continue later, or elsewhere, and it remains
    19
    to be seen who will prevail. Such a victory is like persuading a judge to deny
    summary judgment, a step that transfers decision to a jury but does not end the
    litigation in the defendant’s favor and therefore does not make it a prevailing party.”
    Citizens for a Better Environment v. The Steel Co., 230 F.3D 923, 929-930 (7th Cir.
    2000)(emphasis added) The appellate court in the Amarillo Appeal did not find that
    Appellant Edom Corner had no right to sue Appellee under the Lease, but rather that
    it filed in the wrong court. Because the decision in the Amarillo Appeal did not
    foreclose another suit by Appellant Edom Corner against Appellee, Appellee was
    not the prevailing party. See Grynberg v. Praxair, Inc., 
    389 F.3d 1038
    , 1057 (10th
    Cir. 2004) (Party is prevailing party in litigation if the party can “point to a resolution
    of the dispute which [materially] changes the legal relationship between itself” and
    the other party.) Appellee “was not the prevailing party because the court dismissed
    [Edom Corner’s] claims for lack of subject matter jurisdiction, rather than on the
    merits.” 
    Id. at 1058,
    footnote 21.
    The Park Cities and Ben Wheeler Garnishments
    Appellee claimed that it was entitled to recover attorney’s fees for the Park
    Cities and Ben Wheeler Garnishment actions. Appellee is incorrect.              Appellant
    Edom Corner filed those actions because Appellee had failed to post a supersedeas
    bond to supersede and appeal the Judgment. The filing of the Park Cities and Ben
    Wheeler Garnishment actions in effect forced Appellee to post a supersedeas bond,
    20
    which it finally did on October 30, 2006 – four days after the issuance of the writs
    of garnishment in the Park Cities and Ben Wheeler Garnishment actions. (CR Vol.
    2, # 287 - 302) Because Appellant Edom Corner was successful in getting Appellee
    to post a supersedeas bond, Appellant Edom Corner was the prevailing party in those
    actions.
    The Second and Third Breach Suits
    The Second Breach Suit was filed by Appellant Edom Corner against
    Appellee for post-Judgment breaches of the Lease by Appellee. This suit was filed
    in the justice court. Appellee did not challenge the jurisdiction of the justice court
    to hear the suit, but rather only asserted that the suit was identical to matters in the
    District Court case and the suit should be abated. Appellee did not claim attorney’s
    fees in the Second Breach Suit. The suit was abated; however, the order did not
    award attorney’s fees to Appellee. (CR Vol. 2, #303) Appellant Edom Corner
    subsequently appealed the abatement and dismissal in Cause No. CV04217 in the
    County Court at Law of Van Zandt County, Texas. Appellee filed a motion to
    dismiss the appeal and did not seek attorney’s fees. (CR Vol. 2, #305) The appeal
    was transferred to the Trial Court under cause No. 07-00187. Appellee did not
    counterclaim for attorney’s fees. Appellant Edom Corner non-suited the appeal. (CR
    Vol. 2, #309) “Upon non-suit, [Appellee] was in the same position [it] would be in”
    if Appellant Edom Corner had never appealed the Second Breach Suit. Twin City
    21
    Fire Ins. Co. v. Vega-Garcia, 
    223 S.W.3d 762
    , 768 (Tex. App. – Dallas 2007, pet
    den). In other words, Appellee was back in the position of having an order abating
    the Second Breach Suit. The order did not award attorney’s fees to Appellee. The
    nonsuit of the appeal by Edom Corner did not transform Appellee into a prevailing
    party entitled to its attorney’s fees, but only affirmed the order dismissing the suit.
    Appellee could have appealed the failure of the justice court to award Appellee
    attorney fees in the Second Breach Suit, but Appellee declined to appeal such failure.
    Therefore, any claim for attorney’s fees relating to the Second Breach Suit is barred
    by res judicata. The Trial Court erred in holding Appellee prevailed in the Second
    Breach Suit.
    In the Third Breach Suit, Appellee received a favorable ruling; however, the
    justice court’s order specifically denied Appellee’s claims for attorney fees. (CR
    Vol. 2, #322) Appellant Edom Corner appealed that order, but subsequently non-
    suited its appeal. The non-suit had the effect of rendering the order a final order.
    See Twin City Fire 
    Ins., 223 S.W.3d at 768
    . Appellee did not appeal the order and
    therefore the order is a final judgment. Because Appellee sought its attorney’s fees
    in the Third Breach Suit and such claim was denied, Appellee was also barred by res
    judicata from relitigating the attorney fee aspects of the Third Breach Suit.
    Appellee Lost the Temporary Injunction Action
    Appellee claimed it prevailed in the Temporary Injunction Action and
    22
    therefore was entitled to its attorney’s fees in this suit. Appellee is wrong. The
    Temporary Injunction Action was brought by Appellee against Appellant Edom
    Corner seeking to enjoin Appellant Edom Corner from evicting Appellee. Appellee
    also sought attorney’s fees for filing the action. (CR Vol. 2, #310) The case was
    heard by the Trial Court as Cause No. 07-00341. On May 8, 2007, the Trial Court
    entered its Order Denying Plaintiff’s Request for Temporary Injunction. (CR Vol.
    2, #317). The Trial Court specifically ruled that Appellee’s “application for a
    temporary injunction is in all things DENIED.” Because Appellee’s request for
    relief was denied, it was not the “prevailing party.”   Additionally, any claim for
    attorney’s fees relating to the Temporary Injunction Action is barred by res judicata
    because it was specifically sought in the Temporary Injunction Action and was
    denied. The Trial Court erred in finding Appellee prevailed in the Temporary
    Injunction Action.
    The Disqualification Mandamus
    Appellee also sought to recover attorney’s fees for its actions in the
    Disqualification Mandamus. However, that suit was not related to any claim under
    the Lease, but was an independent action seeking to determine if Edom Corner’s
    prior attorney was subsequently barred from representing Appellee. It did not
    address the merits of the District Court Case. Additionally, Appellee did not seek,
    and was not awarded, attorney’s fees in that action. (CR Vol. 2, #304) Appellee
    23
    was therefore not the prevailing party in the Disqualification Mandamus. The Trial
    Court erred in finding otherwise.
    Appellee was not the “prevailing party” in any of the suits that make up the
    Litigation. The Trial Court erred in finding that it was and the judgment of the Trial
    Court should be reversed and judgment rendered in favor of Appellants.
    ISSUE TWO: THE TRIAL COURT ERRED IN FINDING NEITHER RES
    JUDICATA NOR COLLATERAL ESTOPPEL BARRED APPELLEE’S
    SUIT
    Appellants raised the affirmative defenses of res judicata and collateral
    estoppel to Appellee’s claims. (CR Vol. 1, #24) Appellant was required to prove the
    defense of res judicata. Appellee asserted a claim for attorney’s fees arising out of
    the Litigation for breach of the Lease. (CR Vol. 1, #114; CR Vol. 1, #206; CR Vol.
    1, #206). However, the law does not recognize Appellee’s cause of action for
    attorney’s fees in a suit separate and apart from the prior litigation on the Lease. See
    Fidelity Mutual Life Ins. Co. v. Kaminsky, 
    820 S.W.2d 878
    (Tex. App. – Texarkana
    1992, writ denied) (Holding that tenant’s suit for attorney fees from breach of lease
    was a compulsory counterclaim that should have been brought in the original breach
    of lease litigation and was thus barred by res judicata.)   See also Igal v. Brightstar
    Information Technology Group, Inc., 
    250 S.W.3d 78
    , 86 (Tex. 2008) (“[A] party
    may not pursue a claim determined by a court of competent jurisdiction in a prior
    suit as a ground of recovery in a later suit against the same parties.”) In summary,
    24
    the law requires a claimant to raise its claim for attorney fees in the initial litigation
    and have it adjudicated therein so that the court may address all of the relevant issues
    at once and not be saddled with duplicative litigation. In its Motion for Summary
    Judgment (CR Vol. 2, #259-424) Appellants presented certified copies of all the
    judgments in the Litigation. In each and every judgment, the presiding court either
    denied the Appellee’s request for attorney’s fees, or the Appellee failed to request
    attorney’s fees in their claims. Appellee did not challenge that the copies of
    judgments were inaccurate or inauthentic; Appellee merely asserted its own “spin”
    on the meaning and effect of those judgments. (CR Vol. 4, #805) The Trial Court
    erred in ruling that Appellee’s claims were not barred by res judicata or collateral
    estoppel.
    In the Trial Court, Appellee cited numerous cases in support of its contention
    that because the Trial Court lacked jurisdiction in the District Court Case as to
    Appellant Edom Corner’s forcible entry and detainer claims, it is not barred by res
    judicata from seeking them in this suit. Appellee deliberately ignored that its claim
    for attorney’s fees in the District Court Case was a claim under the Declaratory
    Judgments Act and therefore (i) was subject to the jurisdiction of the Trial Court; (ii)
    was denied by the Trial Court in the District Court Judgment; (iii) the denial was
    affirmed by the appellate court in the Amarillo Appeal; and (iv) Appellee never
    challenged the judgment of the court of appeals in the Amarillo Appeal. Appellee’s
    25
    counterclaim in the District Court Case for a declaratory judgment is identical to the
    claim it now asserted in this suit. Because Appellee’s claim was denied by the Trial
    Court in the District Court case and such denial was affirmed by the appellate court
    in the Amarillo Appeal, Appellee is barred by res judicata from making the same
    claim in this suit. See Igal v. Brightstar Information Technology Group, Inc., 
    250 S.W.3d 78
    , 86 (Tex. 2008) (“[A] party may not pursue a claim determined by a
    court of competent jurisdiction in a prior suit as a ground of recovery in a later suit
    against the same parties.”)
    The Trial Court erred in failing to hold that Appellee’s claims against
    Appellants were barred by res judicata. This Court should reverse and render
    judgment in favor of Appellants.
    ISSUE THREE: THE TRIAL COURT ERRED IN FINDING
    BERRY INDIVIDUALLY LIABLE IN APPELLE’S SUIT
    After engaging in all of the protracted litigation noted above, Appellee
    decided to seek recovery against Appellant Berry individually for the actions of
    Edom Corner. Appellee’s claims against Appellant Berry were also barred by res
    judicata. The basis for the claims was that Appellant Berry, as a “member” of Edom
    Corner, is personally liable under the terms of the Lease. However, this claim is
    predicated on the argument that Appellee is entitled to recover its attorney’s fees in
    the first place. Because the claim for attorney’s fees is without merit as discussed
    infra, the same analysis applies to the claim against Appellant Berry. The Trial
    26
    Court erred in deciding otherwise.
    Any claim against Appellant Berry under Lease necessarily arises from the
    same nexus of facts as the claim against Appellant Edom Corner. That claim was
    therefore a compulsory counterclaim which Appellees should have raised in the any
    of the cases making up the Litigation. Because it could have raised the claim, and
    did not, Appellee’s claims against Appellant Berry is now barred by res judicata.
    See Musgrave v. Owen, 
    67 S.W.3d 513
    , 519 (Tex. Civ. App. – Texarkana 2002) (The
    “main concern” for res judicata analysis is “whether the cases share the same nucleus
    of operative facts.”) The Trial Court erred in ruling the claims against Berry were
    not barred by res judicata and/or collateral estoppel, and this Court should reverse
    and render judgment in favor of Appellant Berry.
    Berry Was Not a Party to the Lease
    Appellee argued to the Trial Court that Appellant Berry assumed individual
    liability for the actions of Edom Corner in enforcing the Lease. Appellee’s argument
    was premised on a strained reading of the definition of Landlord, which provided
    that “Landlord means Landlord and its agents, employees, invitees, licensees or
    visitors.” (CR Vol. 3, #568) Contrary to Appellee’s assertions, this definition did
    not make Berry individually responsible for the actions of Edom Corner. Rather,
    the provision served to make Edom Corner liable for the actions of any of its
    members, agents, etc., who violated the Lease. Appellee cannot, and did not, show
    27
    any pattern or course of dealing by Berry, other than signing the Lease as a member
    of Edom Corner, to establish that Berry assumed liability for the debts of Edom
    Corner. See Mediacomp, Inc. v. Capital Cities Communication, 
    698 S.W.2d 207
    (Tex. App. – Houston [1st Dist.] 1985, no pet) (Finding that actions of agent such as
    guaranteeing payment of the account constituted implied assumption of liability by
    the agent).
    The definition of Landlord under the Lease does not establish Appellant
    Berry’s individual liability. The definition of Landlord in the Lease is identical to
    that of Tenant, which reads “Tenant means Tenant and its agents, employees,
    invitees, licensees or visitors.” “In construing a written contract, the primary
    concern of the court is to ascertain the true intentions of the parties as expressed in
    the instrument.” Healthcare Cable Systems, Inc. v. The Good Shepherd Hospital,
    Inc., 
    180 S.W.2d 787
    , 790 (Tex. App. – Tyler 2005, no pet) No single provision
    taken alone is to be given controlling effect; the contract must be construed as a
    whole. Hackberry Creek Country Club, Inc. v. Hackberry Creek Homeowners
    Assoc., 
    205 S.W.3d 46
    , 56 (Tex. App. – Dallas 2006, pet den) By interpreting the
    Lease as urged by Appellee, the Trial Court decision leads to the clearly absurd and
    unintended result that agents, employees, invitees or visitors of the Tenant have
    equal standing with the Tenant to sue the Landlord, that those same, agents,
    employees, invitees, licensees and visitors are personally liable to Appellant Edom
    28
    Corner for any breach of the Lease by Appellee, and makes agents, employees,
    invitees, licensees or visitors of Landlord personally liable under the Lease.
    “[C]ourts construe contracts from a utilitarian standpoint bearing in mind the
    particular business activity sought to be served, and will avoid when possible and
    proper a construction which is unreasonable, inequitable, and oppressive.” 
    Id. (emphasis added)
        Appellee failed to show any grounds under which a proper
    construction of the Lease would lead to the results noted above. Appellee’s tortured
    reading (and the Trial Court’s adoption of such) leads to the nonsensical conclusion
    that each and every one of Appellant Edom Corner’s and Appellee’s agents,
    employees, invitees, licensees or visitors would have been necessary parties to the
    District Court Case, the Amarillo Appeal, the Disqualification Mandamus, the
    Second Breach Suit, the Temporary Injunction Action and the Third Breach Suit.
    Such a reading of the Lease is absurd.
    In addition to the fact that the plain language of the Lease supports Appellants,
    the Texas Business Organizations Code supports Appellant Berry’s position.
    Section 101.113 provides:
    A member of a limited liability
    company may be named as a party in
    an action by or against the limited
    liability company only if the action is
    brought to enforce the member’s right
    against or liability to the company.
    TEX. BUS. ORG. CODE SEC. 101.113
    29
    (Vernon’s 2006) (emphasis added)
    Section 101.114 provides:
    Except as and to the extent the
    company agreement specifically
    provides otherwise, a member or
    manager is not liable for a debt,
    obligation, or liability of a limited
    liability company, including a debt,
    obligation, or liability under a
    judgment, decree, or order of a court.
    TEX. BUS. ORG. CODE SEC. 101,114
    (Vernon’s 2006) (emphasis added)
    Appellee wholly failed to provide any evidence to prove that in the formation
    of Edom Corner, the regulations of Edom Corner provided for the members to have
    any individual liability for the debts of Edom Corner. See also Carbon El Norteno,
    LLV v. Sanchez, 
    2008 WL 3971554
    (Tex. App. – Corpus Christi 2008, no pet)
    (Finding defendants individually liable on contract because at the time they executed
    the contract, they were no longer members of limited liability corporation.) In fact,
    all of the summary judgment evidence proffered by Appellee did nothing more than
    affirm that the limited liability company known as Edom Corner, LLC was properly
    formed and in existence at the time of the execution of the Lease. Thus, Appellant
    Berry is not individually liable for signing the Lease on behalf of Edom Corner as a
    member. The Trial Court erred in so finding. This Court should reverse the ruling
    of the Trial Court and order that Appellees take nothing against Appellant Berry.
    30
    ISSUE FOUR:   THE TRIAL COURT ERRED IN AWARDING
    ATTORNEY’S FEES ON SUMMARY JUDGMENT TO APPELLEE
    Appellee filed its claim under the Declaratory Judgment Act. Appellee sought
    in the instant litigation to have the Trial Court provide judicial interpretation of
    earlier judgments in the Litigation. Declaratory judgment is not available for
    Appellee’s action. Samedan Oil Corp. v. Louis Dreyfus Nat. Gas Corp., 
    52 S.W.3d 788
    , 792 (Tex. App. – Eastland 2001, pet. denied); Martin v. Dosohs I, Ltd., Inc., 
    2 S.W.3d 350
    , 353 (Tex. App. – San Antonio 1999, pet. denied). Because Appellee’s
    claim for attorney fees in this action is premised solely upon the Texas Uniform
    Declaratory Judgments Act (TEX. CIV. PRAC. & REM. CODE SEC. 37.009) and this
    action is not an appropriate action under the Uniform Declaratory Judgments Act,
    the Trial Court erred in awarding attorneys to Appellee. This Court should reverse
    the Trial Court and render a take nothing judgment.
    Assuming arguendo that this Court determines that Appellee’s action was
    properly brought pursuant to the Texas Uniform Declaratory Judgments Act, the
    Trial Court still erred in awarding attorney’s fees to Appellee.   Appellee’s Third
    Motion for Summary Judgment (CR Vol. 8, #1435-1455) (the “Third Motion”) did
    not contain any affidavits or other evidence as to the reasonableness and necessity
    of the attorney’s fees sought. Appellee had attached affidavits to prior motions for
    summary judgment filed in the case, but wholly failed to attach any summary
    judgment proof to the Third Motion. Appellee merely referred the Trial Court to
    31
    prior pleadings and asked the court to take judicial notice of its file. (RR Vol. 6)
    Reference to prior pleadings and affidavits previously filed but not attached to the
    motion for summary judgment is not proper summary evidence. “Documents which
    had been attached to an original motion for summary judgment, but none of which
    were attached to an amended motion were not entitled to consideration in ruling on
    the amended motion. Gillam v. Sullivan, 
    352 S.W.2d 507
    (Tex. Civ. App. - Fort
    Worth 1961, writ ref'd n.r.e.). The prior motion was supplanted in all regards, no
    longer to be considered as part of the record of the cause. TEX. R. CIV. P. 65.”
    Armstrong v. Rice, 
    556 S.W.2d 620
    , 622 (Tex. App. – Texarkana 1977, reh’g denied)
    See Sugarland Bus. Ctr., Ltd. v. Norman, 
    624 S.W.2d 639
    , 642 (Tex. App. – Houston
    [14th Dist.] 1981, no writ) (Affidavit attached to pleadings but not to motion for
    summary judgment was not competent summary judgment proof).                Because
    Appellee wholly failed to produce competent summary judgment proof, the Trial
    Court erred in granting the summary judgment. This Court should reverse the Trial
    Court’s ruling.
    In the alternative, even should this Court find that Appellee proffered proper
    summary judgment evidence, Appellee was not entitled to summary judgment
    because Appellants presented a genuine issue of material fact in their response and
    affidavit attached thereto. (CR Vol. 8, #1464; CR Vol. 9, #1481-1487) Summary
    judgment is a “harsh remedy” and “trial courts must deny a motion for summary
    32
    judgment unless the movant clearly established a right thereto as a matter of law.”
    Engel v. Pettit, 
    713 S.W.2d 770
    , 773 (Tex.          App. - Houston [14th Dist.]
    1986)(emphasis added). “The reasonableness of an attorney’s fee award generally
    presents a question of fact.” CSFB 1998-PI Buffalo Speedway Office, LTD.
    Partnership v. Amtech Elevator Services, 
    2007 WL 3294287
    (Tex. App. – Houston
    [1st Dist.] Aug. 19, 2010). See also Smith v. Patrick W.Y. Tam Trust, 
    296 S.W.3d 545
    , 547 (Tex. 2009) (Reasonableness of attorney’s fees is left to the fact finder).
    To create a fact issue, the non-movant must file an affidavit contesting the
    reasonableness of the movant’s attorney fee affidavit. Estate of Tyner, 292 S.W3d
    179, 184 (Tex. App. – Tyler 2009).
    Appellants attached to their response to the Third Motion the Affidavit of
    Martin R. Bennett and exhibits (the “Bennett Affidavit”) (CR Vol. 10, #1481-1610).
    The Bennett Affidavit directly controverted the statements in prior affidavits
    submitted by Appellee as to the reasonableness and necessity of the attorney’s fees.
    Therefore, the Bennett Affidavit raised a fact issue which precluded the granting of
    summary judgment. See 
    Engle, 713 S.W.2d at 773
    . Because Appellants raised a
    genuine issue of material fact, the Trial Court erred in granting the summary
    judgment in favor of Appellee. This Court should reverse the Trial Court and render
    a take nothing judgment in favor of Appellants.
    33
    Finally, Appellee is not legally entitled to recover attorney’s fees because of
    the provisions of Section 38 of the TEX. CIV. PRAC. & REM. CODE. Section 38.001(8)
    provides:
    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: (8) an oral or written
    contract.
    TEX. CIV. PRAC. & REM. CODE SEC.
    38.001(8) (2015) (emphasis added)
    “To recover attorney’s fees under this statute, a party must first prevail on the
    underlying claim and recover damages.”          In re Nalle Plastics Family Ltd.
    Partnership, 
    406 S.W.3d 168
    , 173 (Tex. 2013) “The second requirement is implied
    from the statute’s language; for a fee recovery to be ‘in addition to the amount of a
    valid claim,’ the claimant must recover some amount on that claim.”            MBM
    Financial v. Woodlands Operating Corp., 
    292 S.W.3d 660
    , 666 (Tex. 2013)
    “Because [Appellee] failed to recover damages . . . [Appellee] was not entitled to
    recover attorney’s fees under Section 38.001.” Green International, Inc. v. Solis,
    951, S.W.2d 384, 390 (Tex. 1997) See also State Farm Life Ins. Co. v. Beaston, 
    907 S.W.2d 430
    , 437 (Tex. 1995) (Prevailing party could not recover attorney’s fees
    “because she has recovered no damages.”) See also Mustang Pipeline Co. v. Driver
    Pipeline Co., 
    134 S.W.3d 195
    , 201 (Tex. 2004) (“While Mustang did have a valid
    34
    claim against Driver, it was not entitled to recover attorney’s fees because it was not
    awarded damages on its . . . contract claim.”)
    Appellee failed to recover any damages against either Appellant Edom Corner
    or Appellant Berry in any of the Litigation. Nor does Appellee claim to have
    recovered any damages. The only ‘damages’ sought by Appellee in this suit are the
    attorney’s fees incurred in the Litigation. These are not damages as construed in
    TEX. CIV. PRAC. & REM. CODE SEc. 38.001. 
    Nalle, 406 S.W.3d at 173
    . The Trial
    Court erred in granting summary judgment for Appellee for its attorney’s fees. This
    Court should reverse and render a take nothing judgment in favor of Appellants.
    CONCLUSION AND PRAYER FOR RELIEF
    WHEREFORE, PREMISES CONSIDERED, Appellants pray that this Court
    reverse the judgment of the Trial Court and render judgment of in favor of
    Appellants or, alternatively, remand the cause to the Trial Court for further
    proceedings.
    Respectfully submitted,
    RENSHAW, DAVIS & FERGUSON, LLP
    By:         /s/ Katherine A. Ferguson
    Katherine A. Ferguson
    (SBN 06918050)
    2900 Lee Street, Suite 102
    P.O. Box 21
    35
    Greenville, Texas 75403-0021
    Telephone: (903) 454-6050
    Facsimile: (903) 454-4898
    Email: rdflawoffice@yahoo.com
    Richard L. Ray, Esq.
    RAY & THATCHER, P.C.
    300 S. Trade Days Blvd.
    Canton, Texas 75103
    Telephone: (903) 567-2051
    Facsimile: (903) 567-0998
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of the Appellants’ Brief was served on
    May 4, 2015 on the parties below by first class United States mail.
    /s/Katherine A. Ferguson``
    Katherine A. Ferguson
    Larry M. Lesh
    Law offices of Larry M. Lesh
    1 Forest Park Drive
    Richardson, Texas 75080
    R. Paul Elliot
    301 S. Main
    Canton, Texas 75103
    CERTIFICATE OF COMPLIANCE
    I certify this document was produced on a computer using Microsoft Word
    2013 and contains 6,569 words, as determined by the computer software’s word
    count function, excluding sections of the document listed in Texas Rules of
    Appellate Procedure 9.4(i)(1).
    /s/Katherine A. Ferguson
    Katherine A. Ferguson
    36
    

Document Info

Docket Number: 12-14-00365-CV

Filed Date: 5/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2016

Authorities (22)

State Farm Life Insurance Co v. Beaston , 907 S.W.2d 430 ( 1995 )

Musgrave v. Owen , 2002 Tex. App. LEXIS 560 ( 2002 )

King Ranch, Inc. v. Chapman , 46 Tex. Sup. Ct. J. 1093 ( 2003 )

Fidelity Mutual Life Insurance Co. v. Robert P. Kaminsky, M.... , 820 S.W.2d 878 ( 1992 )

Twin City Fire Insurance Co. v. Vega-Garcia , 223 S.W.3d 762 ( 2007 )

INS. CO. OF STATE OF PENNSYLVANIA v. Orosco , 170 S.W.3d 129 ( 2005 )

Mediacomp, Inc. v. Capital Cities Communication, Inc. , 1985 Tex. App. LEXIS 7178 ( 1985 )

United States Ex Rel. Grynberg v. Praxair, Inc. , 389 F.3d 1038 ( 2004 )

Sugarland Business Center, Ltd. v. Norman , 1981 Tex. App. LEXIS 4132 ( 1981 )

Samedan Oil Corp. v. Louis Dreyfus Natural Gas Corp. , 2001 Tex. App. LEXIS 3429 ( 2001 )

Armstrong v. Rice , 1977 Tex. App. LEXIS 3416 ( 1977 )

CU Lloyd's of Texas v. Feldman , 977 S.W.2d 568 ( 1998 )

Engel v. Pettit , 1986 Tex. App. LEXIS 7904 ( 1986 )

Green International, Inc. v. Solis , 951 S.W.2d 384 ( 1997 )

Martin v. DOSHOS I, LTD., INC. , 2 S.W.3d 350 ( 1999 )

Mustang Pipeline Co. v. Driver Pipeline Co. , 47 Tex. Sup. Ct. J. 461 ( 2004 )

MBM Financial Corp. v. Woodlands Operating Co. , 52 Tex. Sup. Ct. J. 1221 ( 2009 )

Malcomson Road Utility District v. Newsom , 171 S.W.3d 257 ( 2005 )

Hackberry Creek Country Club, Inc. v. Hackberry Creek Home ... , 205 S.W.3d 46 ( 2006 )

It's the Berrys, LLC v. Edom Corner, LLC , 2008 Tex. App. LEXIS 8195 ( 2008 )

View All Authorities »