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Composite Cooling Solutions, L.P. v. Larrabee Air Conditioning, Inc.

Court of Appeals of Texas, Second District, Fort Worth

July 13, 2017

COMPOSITE COOLING SOLUTIONS, L.P. APPELLANT
v.
LARRABEE AIR CONDITIONING, INC. D/B/A KAR & LARRABEE MECHANICAL CONTRACTORS APPELLEE

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 067-281269-15

          PANEL: WALKER, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION[1]

          SUE WALKER JUSTICE

         I. Introduction

         The sole issue we address in this appeal is whether Appellee Larrabee Air Conditioning, Inc. d/b/a KAR & Larrabee Mechanical Contractors waived its special appearance. Because we answer this issue in the affirmative, we will reverse the trial court's order sustaining Larrabee's special appearance and remand this case to the trial court.

         II. Factual and Procedural Background

         Appellant Composite Cooling Solutions, L.P. (CCS) brought suit against Larrabee for tortious interference with a contract and for a declaratory judgment that CCS did not owe a back charge to Larrabee.[2] Larrabee filed a special appearance. The trial court signed an October 13, 2016 order sustaining Larrabee's special appearance and ordering CCS's suit against Larrabee dismissed with prejudice. Fifteen days later, on October 28, 2016, Larrabee filed with the trial court "Defendant's Motion for Attorneys' Fees and Costs (Subject to Special Appearance)."

         Larrabee's motion alleged that "CCS brought this lawsuit in an effort to extort attorneys' fees from Larrabee" and requested that the trial court award Larrabee $32, 508 in reasonable and necessary fees and costs incurred "in defending itself from CCS's claims pursuant to the Uniform Declaratory Judgment[s] Act." Larrabee explained:

4. In "any proceeding" under the UDJA, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code [Ann.] § 37.009. The UDJA "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.
5. CCS may argue that attorneys' fees cannot be awarded because there was not a determination that Larrabee was the prevailing party, because there was no final judgment[, ] or because the Court does not have jurisdiction. All of these arguments however fail.
6. The award of attorney[s'] fees is not dependent on a finding that the party "substantially prevailed." Instead, a trial court may award attorney[s'] fees to a non[]prevailing party as are equitable and just.
7. Moreover, the statute does not require a judgment on the merits of the dispute as a prerequisite to a fee award. [Citations omitted.]

         The attorneys' fees affidavit attached to Larrabee's motion provided, in part,

4. I am the lead attorney for the Defendant in Cause No. 067-281269-15; Composite Cooling Solutions, L.P. v. Larrabee Air Conditioning, Inc. d/b/a KAR & Larrabee Mechanical Contractors; In the 67th Judicial District Court, Tarrant ...

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