### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00122- CV

Carl T. Wibb enm eyer , Appellan t

v. TechTerr a Com m uni cations, Inc.; Christian Behier; and Adella Almaz an-Seabolt, Appellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 06- 881- C368, HO NORAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Carl T. Wibbenmey er appea ls a d i s t ri ct court judgme nt that awa rded appellee s Tec hTerr a Communi cations, I nc.; Christian Be hier; and Adella Almazan-Seabolt attorney ’s fee s but no other relief

. Wibbenmey er argues that there is no statutory or contra ctual basis for awa rding attorney ’s fee s and that, if there was, the amount awa rded was an abuse of discretion.
We ag ree that there was no statutory or contra ctual basis for awa rding attorney ’s fee s. Consequently , we will re verse and re nder judg ment that appellee s take nothing on their attorne y ’s fe e cla im.

BACK GR OUND Th e fa ct s underlying this appea l are detailed in W ibbenmey er v. Techterra Communications, Inc. , No. 03-07-00038- CV, 2008 Tex. App. L EXI S 2628, at * 1-6 (Tex. App.—Austin 2008, no pet.). To summarize, Wi b b en m ey er, Be hier and Almazan-Seaboltwer e the co-f ounders, principal share holders, and direc tors of Tec hTerr a Communi cations, I nc. Tec hTerr a’s by laws provided that the corpor ation would have three d i re ctors elec ted annually by the share holders. The bylaws permitted amendments by the vote of share holders owning more than

s i x t y perc ent of the corporation’s outs tanding share s and specifically provided that the num ber o f direc tors could be incre ased or decr ease d by amendment, provided no decr ease would have the eff ect of sho rt en i n g the t erm of any incumbent di rec tor. The by laws further provided that an indi vidual direc tor could be r emoved f rom offic e “only

with good c ause through judicial decla ration.”
Be hier, Almazan-Seabolt, and Wibbenmey er wer e also signatories to a share holders’
ag ree ment. The ag ree ment’s rec itals ref lected that these i n d i v i d u als owned the entirety of
Tec hTerr a’s issued and outstanding share s. Paragraph 9 of the share holders’ ag ree ment provided:

For so long as the Boa

rd of Direc tors consists of three or more members, the parties to this Ag ree ment ag ree to vote all of their share s for t h e el ection of direc tors as follows: one nominee of Christian Be hier, one nominee of Adella Almazan, and one nominee of Car l T. Wi bbenmeyer.

Relations b et ween Wibbenmey er and the other principal share holders eventua lly soured. L itigation beg an when Wibbenmey er filed a petition fo r m an d am u s to compel acc ess
to corpor ate recor ds. The other principal shareholder s beg an taking st eps t hat would enable them
to r emove Wibbenmey er as a direc tor. After unsucce ssfully moving to r emove Wibbenmey er as a direc tor, Be hier called a specia l meeting of the share holders with the stated purpose “t o am end

1 the Corporation’s By

laws to reduc e the number of direc tors, revise the eff ect of the redu ct ion in

No vote wa s taken on the motion. 1 2the number of direc tors and to chang e the provisions for removing direc tors.” Wibbenmey er

responde d by filing a supplemental petition asser ting cause s of action for brea ch of the share holders’
ag ree ment and tortious interfe renc e with it. He alleg ed that appellee s’ actions threa tened his rig hts under para g raph 9 of the share holders’ ag ree ment “by which Christian Be hier and Adelia AlmazanSeabolt are obligated to vote for the nominee of Plaintiff for Direc tor.” Wibbenmey er soug ht only injunctive relief

, attorney ’s fee s, and interest on the fee s. He reque sted a temporar y restra ining order , temporar y injunction, and perma

nent injun ct i o n t o restra in the other share holders from holding the meeting or ame nding the by laws to reduc e the number of direc tors or cha ng e the r equire ments for r emoving direc tors.

The district court g rante d a temporar y restra ining order that barr ed appellee s from removing any curr ent Tec hTerr a d irec tors but did not prohibit them from holding
t h e s hare holders’ meeting or chang ing the by laws. The share holders’ meeting went forw ar d as schedule d. Wibbenmey er did not attend. The other share holders amende d the by laws by reduc ing the number of direc tors to a minimum of two, dele t i n g t h e require ment of a judicial decla ration of g ood cause to remove a direc tor, and permittin g s h ar eholders or direc tors to vote to remove a dire ctor. Appellee s filed a response to Wibbenmey er’ s application for injunctive relief

. They

asser ted that Wibbenmey er had failed to demonstrate a viable cau s e o f action beca use he had not al leg ed “any activity that has violated or would brea ch either the by laws or share holders’
ag ree ment,” nor a

probable rig ht to recove r bec ause he was “ complaining of ac tiviti es t hat are .

. . permitted by Tec hTerr a’s g o v er n i n g documents.” Appellee s pray ed that the district court deny

3Wibbe n m ey er’s application. They also pray ed for attorney ’s fee s without pleading a statutory or

contra ctual basis for

such an a war d. The parties joined issue as to whether the share holder ag ree ment pre v ented appellee s from reducing the num ber of direc tors below three and avoiding their obl iga tions under
para g raph 9 of the ag ree ment to elec t a nominee of Wibbenmey er as one of the corpor ation’s three direc tors. Appellee s argued that the first clause of para g raph 9—“F or so long as the Boa rd of Direc tors consists of three or more members

. . .”—wa s a condition prec edent to the obligations set forth in the succe eding portions of the para g raph and that nothing in the share holders’ agre em ent prohibited them from reduc ing the number of direc tors. Wibbenmey er r eplied that the f irst clause of para g raph 9 sh o u l d i n s t ea d be construed as a covena nt requiring that the signatories maintain three direc tors, such that appellee s could not avoid their obligations in para g raph 9 by reduc ing the number of dir ector s.

Following a hear ing, the district cour t d en i ed both the temporar y injunction and mandamus and subsequently enter ed finding s of fac t and conclusions of law. Among other finding s, the district court found that Wibbenmey er was unl ikely to preva il on either his brea ch-of -contra ct
or t ortious interfer ence claim and that “[t] he shareholder ag ree ment makes no provision requiring the parties to vote their share s in the elec tion of direc tors in any particula r way if the Tec hterra Boa rd of Dire ctors consists of less than thre e dire ctors.”

Wibbe nmey er appea led the denial of the temporar y injunction to this Court. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (4) (West 2008). We t em p o ra ri ly enjoined appell ee s “f

rom taking any action removing Carl T. Wibbenmey er from the Boa rd of

4Tec hTerr a Communi cations, Inc.,” pending consideration of the appe al. Whil e that appea l was

pending , appellee s filed an orig inal counter claim in the district court seeking decla rations under the Uniform Dec laratory J udg ments Act (UDJA). Appellee s also pled what they termed a common-law 2

cause of action for “contr act construction.” Appellee s further pled that they wer e entitled to 3 attorney ’s fee s under both cause s of ac t ion. Subsequently , appellee s filed a motion for sanctions
ag ainst Wibbenmey er u n d er rul e 13 of the Texas Rules of Civil Procedur e and chapte r 10 of the civil prac tice and r emedies c ode.

This Court later aff

irmed the district court’s denial of the temporar y injunction. See
W ibbenmey er , No. 03-07-00038- CV, 2008 Tex. App. L EXI S 2628, at *17. Central to our analy sis,

Appellee s sought the f

ollowing de clar ations: 2

• The voting covena nt of para g raph 9 of the Shareholde r Ag ree ment applies only in the event Tec hTerr a’s Boa

rd of Direc tors consists of three or more direc tors; and conver sely

. . . does not apply if the B oard of

Direc tors consists of less than three direc tors.

• Neither Tec hTerr a’s Articles of I ncorpor ation, its b y l aws nor its Shareholde r Ag ree ment contain any restric tions on share holders amending Tec hTerr a’s by laws t o provide that the Boa rd of Dir ector s shall consist of two members.

• On De ce m b er 1 9 , 2006, a TechTer ra shareholde rs m eeting convene d at which the hol ders of six ty perc ent or more of the then outstanding share s of Tec hTerr a stock voted to approve , and there by approved , a by law chang e reduc ing the number of members on its Boa rd of Direc tors from thre e member s to two.

• Def

endants Be hier and Seabolt did not brea ch th e S h ar eh o l der Ag ree ment by voting their share s to amend Tec hTerr a’s by laws to reduc e the number of members of its Boa rd of Direc tors from thre e member s to two.

• Defen d ants Be hier and Seabolt will not brea ch the Shareholde r Ag ree ment by ref using to elec t Wibbenmey er to the Boa rd of Direc tors when the Boa rd consists of only two members. Appellee s sought r elief substantively identical to the first two de clar ations they soug ht. 3 5we construed para g raph 9 of the shareholders’ ag ree ment and conclude d that “F or so long as the

Boa rd of Direc tors consists of t hree or more members

. . .” was a condition on the application of
t h e p ar agra

ph’s voting require ments, as appellee s had urg ed, not a covena nt to vote for at lea s t three direc tors, as Wibbenmey er had maintained. Id. at *16-17. C o n s eq u en t ly , we held that the district court had not abused its discretion in deter mining that Wibbenmey er was unlikely to preva il

on his brea ch-of

-contra ct claim. Id. We likewise held that the district cour t h ad not abused its discretion in f

inding Wibbenmey er unlikely to pr evail on his tortious interfe renc e claim wher e the sole interfe renc e W ibbenmey er had alleg ed was that of t wo f ellow s igna

tories t o the contract. Id. at *8-9. In conclusion, we emphasized that “[w]e are r eviewingonly the trial cour

t’s decision not
to e nter a temporar

y injunction” and that our “opinion is not to be interpre ted as a comment on the merits of the underlying cause of action bey ond that require d by the standard of revie w.” Id. at *17.

A few day s af

t er we issued our opinion in the interlocutory appea l, Wibbenmey er filed a “Notice of Nonsuit Wit h Prejudice for All His C au ses of Action.” The notice repr esente d
t h at following this Court’s opinion in his interlocutory appea l, Wibbenmey er had resig ned as a direc tor of Tec hTerr a, that his r esig nation had been acc epted and, for these rea sons, his “ca uses of action in this case, a

nd the re medies soug ht by [hi m] , are not longe r in issue or dispute.” Approxim ately two wee ks therea fter, a ppellees f iled a first amended c ounterc laim.
I n this pleading , appellee s nonsuited their cause s of action under the UDJA and for “contr act construction” by omitti ng them and instead pled claims solely for attorney ’s fee s under chapte r 38

o f t h e civi l prac tice and reme dies code, see Tex. Civ. Prac. & Rem. Code Ann. § 3 8

. 0 0 1 (West 2008), and a

n attorney ’s fe e provision in the share holders’ a g ree ment.

6The parties subsequently tried appellee s’ attorney ’s fee claims to the district c ourt.

The c ourt ultimately

rende red judg ment awa

rding appellee s $84,623.67 in attorney ’s fees throug h trial plus a total of $32,500 in conting ent post-judgme nt and appellate attorney ’s fee s. The judgme nt

aw arded no other relief

. The district court subsequently enter ed finding s of fac t and conclusio n s of law. This a

ppeal f ollowed.

ANALYSIS Wibbenmey er bring s t h re e i s s u es in this appea l. I n his first issue, Wibbenmey er argues that no statutory or contra ctual provisi o n s u p p orts appellee s’ attorney ’s fee awa rd. I n his second issue, Wibbenmey er asser ts that none of appellee s’ counter cla i m s p en d i n g at the time of h i s n o n s u i t survived the nonsuit and thus could not be “ame nded” there afte r. I n his third issue, Wibbenmey er challeng es the amount of attorney ’s fee s the district cour t aw ar d ed. We need only addre ss the first issue.

“Te x as has long followed the ‘Amer ican Rule’ prohibiting [attorney ’s] fee awards unless specific ally provided by contra ct or statute.” MBM Fin. Corp. v. The W oodlands Operating Co. , 292 S.W .3d 660, 669 (Tex. 2009) (citing Tony Gullo Motors I, L.P. v. Chapa , 212 S.W .3d 299, 310-11 (Tex. 2006)). I ssues conce rning the availabilit y o f at t o rney ’s fee s under statute or
contra ct prese nt questions of law that we revie w de novo. S ee Holland v. W

al-Mart Stores, Inc. , 1 S.W .3d 91, 94 (Tex. 1999); In re Lesikar , 285 S.W .3d 577, 583 (Tex. App.—Houston [14t h Dist.] 2009, no pet.).
I n their liv e p leading s, the sole bases appellee s pled for rec overing attorney ’s fee s

wer e chapte r 38 of the civil prac tice and reme dies code and an attorney ’s fee p ro v i s i o n i n t h e
7shareh o l d er s ’ ag ree ment. These wer e also the sole g rounds for awa rding attorney ’s fee s that the district court identified in its findings of fac t and conc lusions of law. Chapter 38 is not a basis for rec overing attorney ’s fee s in this case beca use appellee s did not asser

t a claim for b reach of contra ct, did not preva il on one, and did not

rec over damag es. MBM F i n
. C o r p
. , 292 S.W .3d at 666 (“To rec over fee s under [chapter 38], a litigant must do two things: (1) preva il on a brea ch of contra ct claim, and (2) rec over damag es. The second r equire ment is impl ied from the statute’s lang uag e: for a fee rec overy to be ‘in addition to the amount of a valid claim,’ the claimant must rec over some amount on that claim.”) ; see Tex. Civ.
Prac. & Rem. Code Ann. § 38.001 (“A person may rec over rea sonable attorney ’s fee s from

an individual or corpor ation, in addition to the amount of a valid claim and costs, if the claim is for

. . . an ora l or written contr act.” ).

As for whethe r at t o rney ’s fee s wer e authorized under the share holder ag ree ment, this question turns on construction of that agr ee ment. See Intercontinental Group P’ship v. KB Home Lone Star L.P. , 295 S.W .3d 650, 635 (Tex. 2009) (“Par ties are fre e to contra ct for a fee

rec overy standard either looser or stricter than Chapter 38’s.”)

. Contract terms are g iven their plain, ordinary , and g ener ally acc epted meaning s unl es s t h e co n t ract itself shows them to be used in a technica l or differ ent sense. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 662 (Tex. 2005).
We mu s t co nstrue the contra ct as a whole “in an eff ort to harmonize and g ive eff ect to all the provisions of the contra ct so that none will be rende red meaning les s . ” Id

. “No single provision taken alone will be g iven controlling eff ect; rathe r, all the provisions m u s t be considere d with ref ere nce to the whole instrument.” Shell Oil Co. v. Khan , 138 S.W .3d 288, 292 (Tex. 2004).

8Fur

ther, in deter

mining the meaning o f contra ct terms, we may also consider the context of the circ umstances exis ting at the ti m e t h e contra ct was executed and the particula r business activity
soug ht to be serve d. See Columbia Gas Transmissi on Corp. v. New Ulm Gas, Ltd. , 940 S.W .2d 587, 589 (Tex. 1996); Reilly v. Range rs Mgmt., Inc ., 727 S.W .2d 527, 530 (Tex. 1987).

I f we can gi v e t h e contra ct a definite or cer tain leg al meaning , it is unambig uous and we construe it as a matter of law. W illis v. Donnelly , 199 S.W .3d 262, 275 (Tex. 2006);
J.M. Davidson, Inc. v. W

ebster , 128 S.W .3d 223, 229 (Tex. 2003). I f, on the other hand, the contra ct i s s u bject to two or m ore reasona ble i nterpre tations, it is ambig uous, which crea tes a fact i ssue as to the parties’ intent. Columbia Gas Transmissi on Corp ., 940 S.W .2d at 589. Whether a contr act is ambiguous is a que stion of l aw. Id

. Neither party has asserted that the attorney ’s fee provision at issue her e is ambig uous and, as e x plained below, w e conc lude it is not. 4

Parag raph 6 of

the share holders’ a g ree ment provides:

This Ag ree ment shall be binding upon and enure to the benef it of the parties here to, their repr esentative heirs, succe ssors, and assig ns, is perf ormable in Travis County , Texas and shall b e go v er n ed by the laws of the State of Texas. This Ag ree ment embodies the entire ag ree ment of the parties with respe ct to the matters addre ssed here by . This Ag ree ment may be enfor ced by

specific enfor ceme nt. Any party that succe ssfully enforces this agreeme nt in a court of law or equity shal l be entitl ed to its att orney and e

xpert witness fees.

Appelle es asser

t that we should construe the share holders’ ag ree ment ag ainst 4 Wibbenmey er, who draf

ted it. This principle applies o n l y wh en a contra ct is ambig uous. See Gonzalez v. Mission Am. Ins. Co. , 795 S.W .2d 734, 737 (Tex. 1990). Consequently , it does not apply here

. 9(Emphasis added.) Appellee s rely on para g raph six ’s final sentenc e, italicized above, as a basis

for rec overing attorney ’s fee s. Ag ree ing that appellee s could rec over fee s under p arag raph 6, the district court conclude d as a matter of law that appellee s “we re preva iling parties beca use they succe ssfully

enfor ced the share holders’ a g ree ment, and, ther efor e, are entitl ed to an awar d of attorney and expert witness fe es pursua nt to the shareholde rs’ a g ree ment.” On appea l, the parties join issue as to whether appel l ee s “s u cce ssfully enfor ce[d]” the s hare holders’ ag ree ment “in a court o f l aw o r eq u ity .” Wibbenmey er focuses on the m eaning of “enf orce .” Citi ng case s t h at h av e ad dresse d the meaning of the term, Wibbenmey er contends that “enf orce ” means “to cause to be executed or perf ormed; to cause to take eff ect; to compel obedienc e to; to put into forc e,” Dozier v. City of Gat esville , 51 S.W .2d 1091, 1094 (Tex. Civ. App.—Waco 1932, no writ), “the act of putting something such as law into eff ect; the execution of a law; the c arr

y ing out of

a mandate or c ommand,” Siskin Enters., Inc. v. W .B. Stoddard, Jr., Inc

. , 1 4 7 F. S upp. 2d 1126, 1128 (D. Utah 2001) (citing Bla ck’s L aw Dictionary 528 (6th ed. 1991)),

an d “m an d at[ing] compliance with exis ting contra ctual obligations,” id. at 1129 (fur ther holding that “[a] suit to validate or clar ify rig hts does not constitute an action to enforce such rig hts.”). These d efinit ions, in Wibbenmey er’ s view, denote “some offe nsive succe ss that Appellee s did not
pursue or achie ve.” 5

I n a single sentenc e of his opening brief, Wibbenmey er asser ts that the “fe e provision does 5 not, as the trial court conclude d, awa rd fee s to any preva iling party , but only a prev ai l i n g party w h o h a s ‘ s p e c ifically enfor ced’ and ‘succ essfully enfor ced’ the ag ree ment.” (Emphasis a d d e d

. ) T h is sentenc e potentially sug g ests that Wibbenmey er is contending “succ essfully enfor ces” ref ers solely to s u c c e s s ful enfor ceme nt by specific perf ormanc e, which is authorized in the immedia te ly p r e c e d in g sentenc e of para g raph 6. Howeve r, Wibbenmey er continues, “I t is undisputed that Appellee s never soug ht specific perf

ormanc e or otherwise asser ted or preva iled on any aff irmative claims to 10Appellee s, Wibbenmey er urge s , obtained no offe nsive succe ss causing the

share hold er s ’ agr eeme nt to be executed or perf ormed or mandating compliance with it, but only defe nded ag ainst his claims. And if any rig ht was “e nforc ed” by appellee s in the litigation,
W i b b enmey er adds, it was their rig hts under the by laws to reduc e the number of direc t o rs b el o w three , not any rig hts they possessed under the share holders’ ag ree ment. I t was not enoug h that “[t] he
proce eding s may have u l timately vindicated Appellee s’ interpre tation of the parties’ rig hts,” Wibbenmey er rea sons, beca use “they cannot be construed as an enfor ceme nt action that would allow them to rec over f

ees unde r the plain languag e of the fee provision.”
I n response , appellee s asser t that “succ essfully enfor ces” is sy nony mous with “pre vailing party ” as understood in attorney ’s fee jurisprudenc e and that they “pre vailed as a
matter of law” when Wibbe n m ey er n o nsuited his claims. Appellee s “complete ly concur ” wi th Wibbenmey er “as to the meaning of ‘enf orce ’ in Bla ck’s L aw Dictionary and in bot h
Texas and Fe dera l case law,” citing additional authorities in support of that view. See Sheppard

v. Thomas , 101 S.W .3d 577, 582 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“When used

as a verb, ‘enf

orce ’ means ‘to g ive forc e or e ffe ct to (a la w, etc) ; to c ompel obedienc e to.”) (citing Bla ck’s L aw Dictionary 549 (7th ed. 1999)); Bla ck’s L aw Dictionary 528 (6th ed. 1990) (“to put into execution; to cause to take eff ect; to make eff

ective; as, to enfor ce a particula r law, a writ, a

‘enf orce ’ the Shareholde rs’ ag ree ment.” (Emphase s added.) Elsewher e in his briefing , Wibbenmey er simil arly argues that “succ essfully enfor ces” require s some form of aff irmative relief not limit ed to specific perf ormanc e and prese nt no argument o r au t h o ri t y to support a position t h at “succ essfully enfor ces” ref ers solely to enfor ceme nt by specific perf ormanc e. To t h e ex t en t Wibbenmey er is contending that “succ essfull y enfor ces” ref ers solely to enfor ceme nt by specific perf ormanc e, we conclude that argument is waived, see Tex. R. App. P. 38.1(i), and we express no opinion reg ardingsuch a c onstruction. 11judgme nt, or the collection of a debt or fine; to compel obedienc e to”). Howeve r, they urg e that

these definitions are sy

nony mous , or near ly so, with the definitions of “pre vail” and “succ essful party .” See id. at 1188 (def ining “pre vail” as “to be or become eff ective or eff

ectua l, to be in forc e,
to obtain;

. . . to succe ed; to win”), 1430 (“suc cessf ul party ” i s “o n e wh o obtains judgme nt of competent court vindicating civil claim of rig ht

. . . . See also Prevailing Party .”). Ba sed on the proposition that “succ essfully enfor ces” means “prevailing party ,” appellee s rely on the Texas Supre me Court’s rec ent analy sis of a contra ctual “pre vailing party ” attorney ’s fee provision in Intercontinental Group Partnership v. KB Home Lone Star L. P. , 295 S.W .3d 650, and sever al
court of appea ls opinions that have addre ssed worke r’s compensa tion claimants’ en t i t l em ent to attorney ’s fee s under labor code section 408.221(c) afte r ca rr iers nonsuit their suits for judicial revie w from an adver se appea ls panel ruling

. I n repl y , W i b b enmey er argues that even if “succ essfully enfor ces” is sy nony mous with “pre vailing party ,” appellee s did not “pre vail” beca use

none of the parties’ claims for aff irmative relief (apa

rt from at t o rn ey ’s fee s) proce eded to final judgme nt but wer e both voluntarily nonsuited. See Cigna Ins. Co. of Tex. v. Middleton , 63 S.W .3d 901, 903 (Tex. App.—Eastland 1999, pet. denied) (no “pre vailing party ” under labor c ode sec tion 408.221(c) wher e both the worke rs’ compensa tion car rier and the claimant nonsuited their claims).
We beg in our analy sis of para g raph 6’s attorney ’s fee p rovision with three observations reg arding its text

. First, the provision req u i re d ap pellees to prove they

“ succe ssfully enfor ce[d] [t he share holders’] ag ree ment in a court of law or equity .” Appellee s asser t that “succ essfully ” incorporates the conce pt of “prevailing party ” as understood in atto rney ’s fees jurisprudenc e, and the parties prese nts no rea son for us to think otherwise. Bla ck’s L aw Dictionary

12equate s “pre vailing party ” with “ s u c c e s s f u l p a r ty , ” a s appellee s observe

. See Bla ck’s L aw Dictionary 1145 (7th ed. 1999) (“pr evailing party ” is “[a] party in whose favor a judgme nt is rende red,
reg ardle ss of the amount of damag es aw ar d ed

. . . Also termed succe ssful party .”). Moreove r, Texas courts have construed the terms simil arly

. For example, Rule of Civil Procedur e 131 awa rds
court c osts to “[ t] he succ essful par ty in a suit,” and “succ essful party ” has been held to me an “one who ob t ains judgme nt of a competent court vindicating a civil rig ht or claim,” see , e.g. , City of
Houston v. W

oods , 138 S.W .3d 574, 581 (Te x . App.—Houston [14t h Dist.] 2004, no pet.), while “p re v ailing party

” has been held to mean the party that either succe ssfully prosec utes the ac t i o n

or defe n d s aga i n s t i t on the merits, “pre vailing on the main issue” or being “vindicate d by the judgme nt rende red.” S

ee In dian Beac h Prop. Owners’ Ass’n v. Linden , 222 S.W .3d 682, 696-97 (Tex. App.—Houston 2007, no pet.); Jakab v. Gran Villa Townhouses Ho me o w n er s Ass’n, Inc. , 149 S.W .3d 863, 867 (Tex. App.—Dallas 2004, no pet.); City of Amarillo v. Glick , 991 S.W .2d 14, 1 7 (T ex . App.—Amarillo 1997, pet. denied) ; see also Dear v. City of Irving , 902 S.W .2d 731, 739 (Tex. App.—Austin 1995, writ denied) (equating “succ essful p ar t y ” u nder rule 131 with “pre vailing pa

rty ”). As appellee s point out, the Texas Supreme Court has rec ently ref ined the “pre vailing party ” analy sis by apply ing fede ral jurisprudenc e when construing a “pre vailing party ” contra ctual attorney ’s fee provision that, like the one here , did not define th e t er m . In t ercontinental Group P’ship , 245 S.W .3d at 652, 653. In Intercontinental , the plaintiff sued the defe ndant for brea ch of
contra ct. A jury found that the defe ndant had brea ched the contra ct but awa rded no damag es. The trial court r ender ed judg ment awa rding the pl aintiff only attorney ’s fees on the contr act c laim and

13no other monetary , equitable, or decla ratory relief

. For g uidance as to t h e “o rdi nary meaning ” of “pre vailing party ,” the court looked to the United States Supreme Court’s fede ral jurisprudenc e construing that term as it is used in fede ral statutes. Id. at *6.

As the Texas Supreme Court noted, the touchstone of the “pre vailing party ” inquiry under fede ral law is whether there has been “judicially sanctioned” “re lief on the merits”—such as a judgment or “compa

rable relief throug h a conse nt decr ee or settlement”—that “materially alters the leg al relationship betwee n the parties.” Id. at * 6-9 (quoting Farrar v. Hobby , 506 U.S. 103, 111- 1 2 (1 9 9 2 )); see also Buck hannon Bd. & Care Home, Inc. v. W est Virginia Dep’ t of Health and Human Resource

s, Inc. , 532 U.S. 598, 603-05 (2001). Under this standard, the Texas Supreme Court further emphasized, “the judgment ,” n ot preliminary ruling s or finding s, “is critica l to the prevai l i n g-par

ty deter mination.” Intercontinental Group Partnership , 245 S.W .3d at 656 (citing Buck hannon , 532 U.S. at 603-04). Apply ing these principles, the supreme court conclude d that the plaintiff was not the “ preva iling par ty ”:

I t seems bey ond serious dispute that KB Ho m e [t he plaintiff] achie ved no g enuine succe ss on its contr ac t claim. Whether a party preva ils turns on whether the party preva ils upon the court to awa rd it something, either monetary or equitable. KB Home g ot nothing except a jury finding that Interc ontinental [t he def en d an t ] violated the co n t ra ct. I t rec overe d no damag es; it secur ed no decla ratory or injunctive relief

; it obtained no consent decr ee or settlement in its favor ; it rec eived nothing of value of any kind

. . . . No r d o we p er ceive any manner in which the outcome materia lly altere d the l ega l rela tionship betwee n KB Home and I nterc ontinental. Be fore the lawsuit, I nterc ontinental was selling lots that wer e promised to KB Home. After the lawsuit, I nterc ontinental had sold the promised lots and was not require d to pay a s i n gl e d ollar in damag es or do any thing else it otherwise would not have done.

. . . A stand-alone finding on brea ch co n fe rs no benef it whatsoever

.

14Id. at *10-11. I n sum, appellee s must have been “succ essful” or “pre vailed” under this standard to

rec over attorney ’s fe es under para g raph 6 of

the share holders’ a g ree ment. Our second observation conce rning the text of the share holders’ ag ree ment’s attorney ’s fee s provision is that it require s appellee s to prove they “succ essfull y enforce [d] ” (or “pre vailed” in enfor cing ) “[the share holders’] ag ree ment in a court of law or equity .” The ordinary meaning of “enf

orce ,” the parties ag ree , denotes putting something (her e, the s h areholders’
ag ree ment) into execution, causing it to take eff ect or be eff

ective, or compelling obedienc e to it. “Enfor ce” thus denotes some form of af fi rm ative action in reg ard to one’s rig hts under the share holders’ a g ree ment, and is somewhat narr ower than the act of mere ly obtaining a decla ration

as to one’s rig hts under the ag ree ment. See Siskin En ters., Inc. , 147 F. Supp. 2d at 1129; cf. Intercontinental Group P’ship , 295 S.W .3d at 652 (contra ctual provision a war ding attorney ’s fee s
t o “pre vailing party ” in “an action to enfor ce the terms of this Contract or to declare right s hereunde r ”); Probus Props. v. Kirby , 200 S.W .3d 258, 265 (Tex. App.—Dallas 2006, pet. denied) (lea s e aw arde d attorney ’s fee s to “pre vailing party ” “if, due to any brea ch or defa ult, it become s

nece ssary for one of the parties to reta in an attorney to ‘enf orce or defend any of its rig ht s or

reme dies here under’ ”).

Third, it is not enoug h that appellee s prove they wer e “succ essful” or “pre vailed” in litigat ion throug h which W ibbenmey er sought to enforce the share holders’ ag ree ment. I nstead, the provision expli citly require s that appellee s succe ed o r preva il in enforcing the share holders’
ag ree men t , n o t mere ly in thwarting Wibbenmey er’ s attempt to do so. Cf. Intercontinental Group P’ship , 295 S.W .3d at 652 (c ontrac t awar ded attorne y ’s fe es to “pre vailing pa rty ” in “ an action to

15enforce t h e t er m s of this Contract or to decla re rig hts here under” ); Alan Reube r Chevrolet, Inc.

v. Grady Chevrolet, Ltd. , 287 S.W .3d 877, 881 (Tex. App.—Dallas 2009, no pet.) (contra ct provided, “I n the event of any litigat ion between the Parties here to to enf o rc e any provisions or rig hts here under, the unsucce ssful party to such litigat ion shall pay [attorney ’s fee s] to the succe ssful party .”); Probus Props. , 200 S.W .3d at 265 (aw arding fee s to “pre vailing party ” in th e event “it become s nece ssary for one of the parties to reta in an attorney to ‘enf orce or defe nd any of its rig hts

or re medies her eunder ’”)

.

We now examine the rec ord to det er m i n e wh ether , in light of the fore g oing observations, it supports the district court’s leg al conc lusion that appellees “ succe ssfully enfor ced the share holders’ ag ree ment, and, there fore , are entitled to an awa rd of attorney and expert witness fee s pursuant to the share holders’ ag ree ment.” Wibbenmey er asser ts that appellee s could not have “enf orce d” the share holders’ ag ree ment beca use they soug ht only to eff ectuate their rig ht under the corpor ate by laws to chang e the number of di re ct o rs , and not any rig ht they possessed under the share holders’ ag ree ment. We disag ree to the extent that, in the underly ing litigation, appellee s soug ht to “enf

orce ” under the ordinary meaning of that term (i.e., g ive forc e or eff ect to, eff ectuate) what t hey asser

ted was a condition prec edent stated in the ag ree ment—“F or so long as the Boa rd of Direc tors consists of three or more members

. . .”—to the share hol d er s ’ obliga tions under
para g raph 9 to vote for one direc tor nominee eac h from Be hier, Al mazan-Seabolt, and Wibbenmey er. See, e.g. , Comsys Info. Tech. Serv., Inc. v. Twi n City Fire Ins. Co. , 130 S.W .3d 181, 192 (Tex. App.— Ho uston [14t h Dist.] 2003, pet. denied) (par ties dispute whether a condition
prec edent to insurance cover ag e can be “enf orce d”). Although appellee s ultimately did not seek or

16obtain relief on any aff irmative claims to enfor ce this asse rt ed co n d ition, they nonetheless sought
to eff ectua te it as essentially an affirmative defe nse to Wibbenmey ers’ claims seeking injunctive relief to enforc e his rig hts under par ag raph 9.
Howeve r, even if “enf

orcing ” the share holders’ ag ree m ent in this manner was appellee s’ litigation g oal, para g raph 6 of the agre em en t require d that they also have been “succ essful” or “pre vailed” in pursuing this g oal. As W i bbenmey er emphasizes, and appellee s acknow ledg e, Wibbenmey er’ s claims wer e terminated by his voluntary nonsuit and n ot by a judgme nt on the merits. As noted, the district c ourt’s final judgme nt a war ded only attorney ’s fee s
to appellee s and no other relief

. Neither the judgme nt nor any pri o r ru l i ng s of the district court purported to dispose of Wibbenmey er’ s claims on the merits. The court’s sole ruling s in rela tion to the claims wer e its temporar y restra ining order and subsequent denial of Wibbenmey er’ s reque st for

a temporar

y injunction, which had the leg al eff ect of deter

mining only whether the court woul d
prese rve the status quo pending the court’s dispositi on of Wibbenmey er’ s claims on the merits. See
W ibbenmey er , 2008 Tex. App. L EXI S 2628, at *17. That issue was mooted, along with the
controve rsy underlying Wibbenmey er’ s claims, at the moment Wibbenmey er fi l ed his notice of nonsuit. See U

niversity of Tex. M

ed. Branch at Galveston v. Estat e of Black mon , 195 S.W .3d 98, 100 (Tex. 2006) (per

curiam).
Fur ther , b ecause Wibbenmey er’ s nonsuit is not a ruling on the merits, it has no

res judicata eff

ect. Citi zens Ins. Co. of

Am. v. Dacc ach , 217 S.W .3d 430, 449 (Tex. 2007). Thus, 6

Although Wibbenmey er’ s notice of nonsuit stated that his dismiss al was “with prejudice ,” 6 that fac t, in itself, does not cha ng e the a naly sis, and appellee s do not c ontend it doe s. A voluntary dismiss al “with prejudice ” does not have res judicata eff ect unless the trial court rende rs judgme nt 17with respe ct to the contra ctual rig hts that wer e the basis of Wibbenmey er’ s claims and appellee s’

defe nses to those claims, the nonsuit’s eff ect was to return the parties to the identical leg al position they wer e in befor e Wibbenmey er filed suit. See Crofts v. Court of Civil Appeals , 362 S.W .2d 101, 104 (Tex. 1962). I n short, there is no final judgme nt or order in this case that has eff ecte d a chang e in the parties ’ leg al positions with respe ct to their rig hts under para g raph 9 of the share holders’
ag ree ment, including the asser ted condition prec edent that a ppellees soug ht to enforc e. 7 Wibbenmey er argues that beca use appellee s never o b t ained a final judgme nt on the merits of his claims, appellee s cannot be “succ essful” o r “prevailing ” in enfor cing any rig hts under the share holders’ ag ree ment. See Cricket Comm., Inc. v. Tril li u m Indus., Inc ., 235 S.W .3d 298, (Tex. App.—Dallas 2007, no pet.) (neither plaintiff nor defe ndant was “pre vailing party ” wher e plaintiff had nonsuited claim); Dool in’s Harley- Davidson, Inc. v. Y

oung , No. 06-05-00101- CV, 2006 Tex. App. L EXI S 116, at *10-11 (Tex. App.—Texarkana 2006, no pet.) (defe ndant was not “pre vaili n g p arty ” beca

use plaintiff’s nonsuit was “a termination of the pleade d cause s of action and asser ted defe nses without an adjudication of their merits that returns the litigants to the positions they occupie d befor e the plaintiff invoked th e co u rt ’s jurisdiction”); see also Cigna , 63 S.W .3d

dismiss ing t h e claims on their merits, as occur s when a court rende rs judgme nt dismiss ing a suit pursuant to a settlement ag ree ment. See Cass Cty. v. Rambo , 143 S.W .2d 916, 920 (Tex. 1940) (holding that voluntary dismiss al pursuant to ag ree ment to dismiss not amounting to settlement on merits did not have res judicata eff ect) ; cf. Rhodes v. Prudential Leasing Co. , 413 S.W .2d 404, 407 (Tex. Civ. App.—Austin 1967, no writ) (invoking the “rule that a judgme nt of dismiss al enter ed into by ag ree ment of the parties in pursuanc e of a compromise, or settlement of a controve rsy , become s a judg ment on the merits”) . Appellee s obtained no such judg ment or orde r her e. Of course , this Court’s opinion in Wibbenmey er’ s interlocutory appea l, while not direc tly 7 addre ssing the merits of his claims, may nonetheless be instructive re g arding the l eg al vi ability of any future similar c laims. 18at 903 (worke rs’ compensation claimant was not “prevailing party ” entitled to attorney ’s fee s

under labor code section 408.221 (c ) wh er e b o t h parties nonsuited in a suit for judicial revie w of the claimant’s administrative benef its deter mination). Appellee s counter b y re l y ing on a line of

case s involving suits for judicial revie w b roug ht by worke rs’ compensa tion car riers to challeng e adver se appea ls panel deter minations of benef

its. I n such case s, section 408.221(c) of the 8 labor code authorizes the claimant t o re co v er attorney ’s fee s if he or she “pre vails on an issue

on which ju d i ci al revie w is soug ht by the insurance car rier.” Tex. L ab. Code Ann. § 408.221(c) (West 2006). These courts have held that wher e the car rier n o n s uits its suit, the claimant is the “pre vailing pa

rty ” for purposes of section 408.221(c) beca use the nonsuit, by

returningthe par

ties
to the same leg al position they wer e in befor e the carri er fi l ed s u it, had the eff ect of making the prior administrative decision in favor of the claimant final. See, e.g. , Pacific Employe rs Ins. Co.
v. Torres , 174 S.W .3d 344, 346-48 (Tex

. App.—El Paso 2005, no pet.). Wibbenmey er ur g es that the proce dural context of these case s distinguished t h em from the prese nt case , in which Wibbe nmey er’ s nonsuit has had the leg al eff ect of restoring the parties to the same leg al position

as they wer e in befor e any litigation beg an. We ag ree wi t h Wibbenmey er that these case s are distinguishable.

Twi n City Fire Ins. Co. v. Vega-G arcia , 223 S.W .3d 762, 769-70 (Tex. App.—Dallas 2007, 8 pet. denied) ; Hagberg v. City o f Pa s a d e na , 224 S.W .3d 477, 483-84 (Tex. App.—Houston [1st Dist.] 2 0 0 7 , n o p et.); American Home Assurance Co. v. McD onald , 181 S.W .3d 767, 768 (Tex. App.—Waco 2005, no pet.); Dean Foo d s Co
. v. Anderson , 178 S.W .3d 449, 455 (Tex. App.— Am arill o 2005, pet. denied); Pacific Employers Ins. Co. v. T orres , 174 S.W .3d 344, 346-48 (Te x . App.—El Paso 2005, no pet.). 19On the other hand, althoug h appellee s do n o t emphasize them, a number of case s

apply ing rule of civil proce dure 131 have held that a defe ndant who is the benef iciary of a plaintiff’s nonsuit is a “succ essful party ” entit l ed to court costs. See, e.g. , City of Houston v. W oods , 138 S.W .3d 574, 581 (Tex. App.—Housto n [ 14th Dist.] 2004, no pet.); Ree d v. State , 78 S.W .2d 254, 256 (Tex. Civ. App.—Austin 1934, wr it dism’d). Howeve r, t hese decisions may rest in part

on the fac t that rule 162, g overning nonsuits, expl i ci tly permits the taxi ng of court costs ag ainst the nonsuiting party , and not nece ssarily on the view that the other par t y would otherwise be “succ essful” as that term is ordinarily understood. See W oods , 138 S.W .3d at 581 (ac knowledg ing that “no judgme nt ‘vindicating a civil rig ht or claim’ was enter ed” wh er e claims wer e nonsuited, observing that rule 162 authorizes taxi ng of costs ag ainst nonsuiting party , and concluding “[t] hus, when a plaintiff dismiss es his claims ag ains t t h e defe ndant, ‘the defe ndant is the succe ssful party and should rec over its costs under [Rule 131].”) (quoting Ree d , 78 S.W .2d at 256); see also Doolin’s Harley -Dav idson, Inc. , No. 06-05-00101- CV, 2006 Tex. App. L EXI S 116, at *10-11 (obser ving that “[t] he p arty reque sting nonsuit is alway s responsible for court costs” under rule 162, and that “[t] he ‘pre vailing party ’ analy sis is not nece ssary when deter mining who should pay court costs”). Following the lead of the Texas Supreme Court in Intercontinental , and as appellee s urg e we do, we will look to fede ral law for g uidance as to whether appellee s have been “succ essful”

or “pre vailed” in enfor cing the share holders’ ag ree ment wher e Wibbenmey er dismiss ed his claims by nonsuit. I n its seminal Buck hannon decision, on wh i ch the Texas Supreme Court relied in Intercontinental , the United States Supreme Court addre ssed whether a plai n t iff is a “pre vailing party ” when a defe ndant, in response to the plaintiff’s claims, voluntarily chang es its co n d uct in

20a manner m ooting the controve rsy . S ee 5 3 2 U. S

. at 600-61. A group of companies that operated nursing homes in West Virgi nia sued that state, two of its ag encie s, and various individuals in fe d eral court seeking decla ratory and injunctive relief ag ainst the enfor ceme nt of a statutory regulatory require ment they contende d violated fede ral law. I n response , the West Virg inia leg islature repe aled the require ment, and the district court dismiss ed the case as moot. The plaintiffs then reque sted attorney ’s fee s un d er t h e applicable fede ral statute. The plaintiffs relied on a “cataly st the ory ” that had bee n rec og nized by some fede ral c ircuits, which held that a plaintiff is a “pre vailing party ” if it achie ves the desired result beca us e i t s l aw s uit broug ht about a voluntary chang e in the def

endant’ s conduct. See id. at 600-02.
Dra wing on Bla ck’s definition of “pre vailing party ” and its prior decisions, the Supreme Court held that “pre vailing party ” status require s obtaining relief from the court (e.g ., “enf orce ab l e j u d gm ents on the merits and court-or dere d consent decr ees” ) that eff ect a “mater ial alteration of the lega l re l at ionship of the parties.” See id. at 603-05; see also id. at 605 (also descr ibing the standard as requiring a “judicially sanctioned chang e in the leg al rela tionship of the
p arties” ). “A defenda

nt’s voluntary chang e in conduct, although perhaps accomplishing what th e p l ai n tiff soug ht to achie ve by the lawsuit,” nonetheless failed to meet this standard, th e C o u rt

rea soned, beca

use it “ lacks the nece ssary judicial imprimatur for the chang e.” See id. at 605. The

same would be true, the Court observe d, for “priva te contra ctual settlements” whose terms wer e not incorpora ted into a consent decr ee. See id. at 604 n.7. Apply ing these standards, the Supreme Court reje cted the cata ly st theory and held that the plaintiffs wer e not “pre vailing parties.” See id. at 605.

21Appellee s asser t that Wibbenmey er’ s nonsu i t an d resig nation from the Tec hTerr a board in response to this Court’ s af fi rming the denial of temporar y injunctive relief “mater ially alt er ed the parties’ leg al relationship” within the meaning of Intercontinental and the fede ral jurisprudenc e it incorpora tes

. Ap p el l ee s overlook the require ment that it must be a judicial ruling , not a party ’s volunt ary action, that eff ects the requisite materia l alteration of the parties’ leg al relationship. See id. at 604-05. Thus, lower fede ral courts have applied the Buck hannon analy sis to defe ndants’ claims for attorney ’s fee s as “pre vailing parties” and held that

a plaintiff’s voluntary dism i s s al u nder Fe d. R. Civ. P. 41(a) (1)( i)—the fede ral equivalent of Texas Rule of Civil Procedur e 162—does not confe r “pre vailing party ” status on a defe ndant. See RFR Indus., Inc. v. Century St eps, Inc. , 477 F.3d 1348, 1353 (F ed. C ir. 2007). This is so beca use the dismiss al is not “judicially sanctioned” —the dismiss al require s no court order —and there is no “cha ng e in the leg al rela

tionship of the parties” beca use the plaintiff rema ins fre e to re- file its action, as it was bef

ore litig ation beg an. See id. 9

On the other hand, the Fi ft h C i rc u i t , among other lower fede ral courts, have held that 9 a plaintiff who obtains pre l i m i n ary injunctive relief turning on a deter mination of the merits, as opposed to a mere decision to prese rve the sta t u s q u o , may be deeme d a “pre vailing party ” if the ruling cause s the defe ndant to moot the action throug h voluntary compliance

. See Dearmore v. C ity of Garland , 519 F.3d 517, 520-26 (5th Cir.), cert. denied , 2008 U.S. L EXI S 6325 (2008). The rationale for this holding is that the preliminary injunc tion is “judicially sanctioned” and “mater ial ly alters the leg al relationship betwee n the parties,” there by satisfy ing Buck hannon

. Id. at 524 (tempora

ry injunction “satisfied Buck hannon beca

use it requ ires that a party obtain a judicial ruling which results in a materia l chang e in the leg al rela tionship betwee n th e p arties”). Her e, the ruling s of the district court and this Cour t co n ce rni ng Wibbenmey er’ s entitlement to a preliminary injunction turned larg ely on construction of para g raph 9 of the share holders’ ag ree ment, an i s s ue that overla

ps with the ultimate merits of his claims. I n fac t, as appellee s emphasize, Wibbenmey er admits in his opening brief that he nonsuited afte r “[s] eeing the writing on the wall” 22Wibbenmey er’ s notice of nonsuit, as previously explained, returne d the parties to the

identical leg al position with respe ct to their rig hts under para g raph 9 of the share holders’ ag ree ment

as they wer e befor e Wibbenmey er filed his claims. L ikewise, Wibbenmey er’ s nonsuit of his claims was not “judicially sanctioned” —he m er el y filed a notice, and appellee s did not obtain an order of dismiss al or nonsuit. Consequently , under the conce pts of “pre vailing party ” applied by the
Texas Supreme Court in Intercontinental , appellee s wer e not “succ essful” or “p re vailing” in enfor cing the share holders’ ag ree ment. Acc ording ly , they are not entitled to attorney ’s fe es under
para g raph 6 of

that ag ree ment. I n a further alternative, appellee s urg e that we aff irm the attorney ’s fee s awa rd on the basis that the district court in substance or “implied ly ” g rante d decla ratory relief construing
para g raph 6’s attorney ’s fe e p rovi sion, there by invoking the district court’s discretion to awa rd attorney ’s fee s under the UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008) (“In any p ro ce eding under this chapte r, the court may awa rd costs and rea sonable and nece ssary attorney ’s fee s as are equitable and just.”); see also Barshop v. Medina County Underground W ater Conservation Dist. , 925 S.W .2d 6 1 8 , 6 3 7 -3 8 (Tex. 1996) (re cog nizi ng that courts may awa rd attorney ’s fee s to a non-pre vailing party under the UDJA). Appellee s emphasize t h at t hey pled 1 0

in ou r o p i n ion. Nonethele ss, whateve r the prac tical eff ects of these ruling s may have been in influencing Wibbenmey er’ s beha v i o r, i t rema ins that appellee s did not obtain a judicial ruling that altere d the parties’ leg al relationship, as explained above. T h i s is fata l to Wibbenmey er’ s attorney ’s fe e cla im under par ag raph 6 of the share holders’ a g ree ment. I n the context of their arguments addre ssed to Wibbenmey er’ s second issue, conce rning 1 0 whether appellee s’ attorney ’s fee claim survived his nonsuit, appellee s urg e that “attorne y ’s fee s as a sanction is wholly appropr iate in t h i s ca s e. ” To the extent appellee s are arguing that the 23a claim for attorney ’s fee s under para g raph 6 and that Wibbenmey er joined issue b y fi l i n g a

supplemental answer disputing w hether appellee s had “suc cessf

ully enfor ce[d]” the s hare holders’
ag ree ment. They rea son that both pleading s “invoked the equitable powe r of the trial court under the UDJA to establish the rig hts of the parties

. . . thus allowing for a fee awa rd.” Even if the rec ord ref lects that t h e p ar t i es invoked the UDJA and the district court’s judgme nt (which contains no decla rations) could be construed as g ranting decla ratory relief

, we would hold that attorney ’s fees cannot be awa

rded unde r the UD J A under the pre sent circ umstances. Appellee s’ t heory boils down t o an assertion that even though they otherwise have

n o s t at u t ory or contra ctual basis for rec overing attorney ’s fee s, they can nonetheless rec over the fee s under the UDJ A b ec au se they have obtained an “implied” decla ration as to their statutory or
contra ctual basis for attorney ’s fee s. This somewhat circ ular rationale runs afoul of “the rule

. . . that

a party cannot use the [UDJ A] as a vehicle to obtain otherwise impermissible attorney ’s fee s.” MBM
Fin. Corp. , 292 S.W .3d at 669; see also id. (explaining that “[i] f reple ading a claim as a decla ratory judgme nt could justify a fee awa rd, attorney ’s fee s would be available for all parties in all case s. T h at wo u l d repe al not only the American Rul e but also the l imits imposed on fee awa rds i n other statutes.”). Consequently , assuming that the district court “impliedly ” awa rded decla

ratory relief

conce rning para g raph 6’s attorney ’s fee provision, the UDJA would not be a basis for rec overing the fee s awa rded in the judg ment.

attorney ’s fee s awa

rd can be aff

irmed as sanctions, the district court’s findi n gs o f fac t and co n cl usions of law ref

lect that it awa

rded fee s based solely on chapte r 38 and the share holders’ ag ree ment, and ther e ar e no finding s that would support a sanc tions award. 24Be cause there is no leg al basis for awa rding appellee s attorney ’s fee s in this case , we sustain Wibbenmey er’ s first issue, reve rse the dis tric t c o u r t’ s ju d g me n t a

w a r d in g a p p e ll e e s a tt orney ’s fee s, and rende r judgme nt that appellee s take nothing on that claim. Given this holding, we need not

rea ch Wibbenmey er’ s second a nd third issues. See Tex. R. App. P . 47.1.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Patterson, Pury ear and Pember

ton; Dissenting O pinion by J ustice Pury ear Reverse d and Rende red Filed: Mar ch 26, 2010

25