Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law Number 2 Potter County,
Texas Trial Court No. 101, 936-2; Honorable Pamela C. Sirmon,
PIRTLE, PARKER, and DOSS, JJ.
Patrick A. Pirtle Justice.
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
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.
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
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. Whittington filed this appeal.
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.
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. 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.
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.