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Whittington v. Green

Court of Appeals of Texas, Seventh District, Amarillo

January 14, 2020

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

          Before PIRTLE, PARKER, and DOSS, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice.

         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

         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. 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 ...


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