*

 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5THCIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-20253

_______________________

BUTLER & BINION, L.L.P.,

Plaintiff-Appellee,

versus

SUZAN E. TAYLOR, ET AL., 

 Defendants,

SUZAN E. TAYLOR,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-94-CV-508)

_________________________________________________________________

July 31, 1998

Before GARWOOD, JONES, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

This appeal requires us to review two issues: (1) the

district court’s grant of judgment as a matter of law to Butler &

Binion, L.L.P. on Suzan Taylor’s appellate legal malpractice claim;
2

and (2) the district court’s award of appellate attorneys’ fees to

Butler & Binion. We affirm on the first issue and reverse on the

second. 

I. Background

Butler & Binion, L.L.P. represented Suzan Taylor in a

suit against MBank in Texas state court. It obtained a favorable

judgment for her, but MBank subsequently declared insolvency and

was taken over by the Federal Deposit Insurance Corporation (FDIC).

The FDIC removed the case to federal court, where it appealed the

judgment to the Fifth Circuit. The Fifth Circuit affirmed Taylor’s

actual damages award, but reversed her punitive damages award on

the ground of the FDIC’s sovereign immunity. See Bank One, Texas,

N.A. v. Taylor, 970 F.2d 16, 32-34 (5th Cir. 1992). 

Subsequently, while still represented by Butler & Binion,

Taylor sued the FDIC to collect on her judgment. During the

pendency of this litigation, Taylor hired new counsel. Butler &

Binion intervened in the lawsuit to collect its contingency fee out

of any judgment Taylor and her new counsel obtained against the

FDIC. Taylor counterclaimed against Butler & Binion, alleging

appellate legal malpractice in the underlying Fifth Circuit appeal.

Specifically, Taylor’s counterclaim alleged that Butler & Binion

caused the loss of her punitive damages award by failing to assert

(1) that the “sue and be sued” clause in 12 U.S.C. § 1819(a) waives
3

sovereign immunity; and (2) that 12 U.S.C. § 1821(d)(13)(B)

precludes the FDIC from asserting defenses on appeal that MBank

could not itself have raised. The district court granted summary

judgment to Butler & Binion on Taylor’s counterclaim concluding, as

a matter of law, that Butler & Binion’s failure, if any, to assert

these two statutes was not the cause of the Fifth Circuit’s

reversal of Taylor’s punitive damages award.
1

 Specifically, the district court awarded (lump sum) $125,000 in the event of an appeal to

the Fifth Circuit.

4

II. Analysis

A. Appellate Malpractice

This court reviews a grant of judgment as a matter of law

de novo, applying the same standards as the district court. See

Patin v. Allied Signal, Inc., 77 F.3d 782, 785 (5th Cir. 1996).

Under Texas law, in a case alleging appellate legal malpractice, a

plaintiff/client “must show that but for the attorney’s negligence

the client would have prevailed on appeal.” Millhouse v.

Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989). The determination of

causation in an appellate malpractice case is a question of law.

See id. at 627-28.

As did the district court, we conclude that there is no

basis for any finding that the result of Taylor’s appeal would have

been different but for Butler & Binion’s alleged failure to make

the arguments Taylor asserts should have been made. Therefore, the

district court’s grant of judgment as a matter of law to Butler &

Binion on Taylor’s appellate malpractice counterclaim is affirmed.

B. Appellate Attorneys’ Fees

The district court awarded Butler & Binion attorneys’

fees on any appeal that followed from the court’s final judgment.1

Under Texas law, attorneys’ fees are generally not available unless
5

provided for by statute or contract. See New Amsterdam Cas. Co. v.

Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967); City of

Garland v. Booth, 895 S.W.2d 766, 771 (Tex. App.—Dallas 1995, writ

denied). The Texas Civil Practice & Remedies Code provides for the

recovery of attorneys’ fees for claims involving “rendered

services” and “performed labor,” which this court has held includes

legal fees owed to a law firm. See TEX. CIV. PRAC. & REM. CODE ANN. §

38.001 (Vernon 1997); McLeod, Alexander, Powell & Apffel, P.C. v.

Quarles, 894 F.2d 1482, 1487-88 (5th Cir. 1990). Even more on

point, § 38.001 provides for the recovery of attorneys’ fees if the

underlying claim is on “an oral or written contract.”

In the case at hand, Butler & Binion sued to collect on

its contingency fee contract (or, in the alternative, under a

theory of quantum meruit), and Taylor counterclaimed alleging

appellate malpractice. Under applicable Texas law, Butler & Binion

could recover its appellate attorneys’ fees from Taylor if Taylor

had appealed on the contractual claim. She did not. Instead,

Butler & Binion contends that it should also be able to collect its

appellate attorneys’ fees for defending against Taylor’s appeal on

her appellate malpractice counterclaim. Neither party cites a
2

 This court’s research found one case on point, although the parties were correct not to cite

it as the opinion is unpublished and, therefore, not binding precedent under Texas Rule of Appellate

Procedure 47.7. See Genmoora Corp. v. Gardere & Wynne, No. 05-93-00923-CV, 1997 WL

499695 (Tex. App.—Dallas Aug. 25, 1997, no writ).

3

 Butler & Binion itself initially cross-appealed on a theory that it should have been allowed

to collect its attorneys’ fees as valued under a theory of quantum meruit rather than as valued under

the contingency fee contract, but it voluntarily dismissed this appeal before oral argument.

4

 Texas cases hold that a “party may properly recover for legal services in prosecuting its

claim although the same services also relate to defending a counterclaim.” Schepps Grocery Co. v.

BurroughsCorp., 635 S.W.2d 606, 611 (Tex. App.—Houston [14th Dist.] 1982, no writ). They also

hold, however, that “fees incurred in the defense of a counterclaim are not recoverable by statute

unless the facts necessary for the plaintiff to recover on its claim also serve to defeat the

counterclaim.” Coleman v. Rotana, Inc., 778 S.W.2d 867, 873 (Tex. App.—Dallas 1989, writ

denied); see also Crow v. Central Soya Co., 651 S.W.2d 392, 396 (Tex. App.—Fort Worth 1983,

writ ref’d n.r.e.). “A party may recover attorney fees rendered in connection with all claims if they

arise out of the same transaction and are ‘so interrelated that their prosecution or defense entails

6

Texas case wherein appellate attorneys’ fees were granted or denied

involving a similar factual situation.2 

Because Taylor did not appeal the district court’s

judgment in favor of Butler & Binion on the contingency fee

contract,3 even were this court to have reversed the district court

on Taylor’s malpractice claim, the issue of attorneys’ fees under

the contingency fee contract would not be before us. This appeal

does not present any challenge to Butler & Binion’s favorable

judgment on its contract claim. Therefore, we need not reach the

issue whether Butler & Binion could recover attorneys’ fees for

defending against Taylor’s appeal on the ground that the facts

involved in doing are essentially the same and those involved in

prosecuting its contractual claim.4 We need not reach this issue
proof or denial of essentially the same facts.’” Coleman, 778 S.W.2d at 874 (quoting Flint &Assocs.

v. Intercontinental Pipe & Steel Co., 739 S.W.2d 622, 624-25 (Tex. App.—Dallas 1987, writ

denied)); see also Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1992) (“Therefore,

when the causes of action involved in the suit are dependent upon the same set of facts or

circumstances and thus are ‘intertwined to the point of being inseparable,’ the party suing for

attorney’sfees may recover the entire amount covering all claims.”); Aetna Cas. & Sur. v. Wild, 944

S.W.2d 37, 41 (Tex. App.—Amarillo 1997, writ denied) (“Even if the claims arise out of the same

events or transaction, if the prosecution or defense does not entail essentially the same facts, the

exception does not apply.”).

7

because, as just noted, Butler & Binion’s contractual claim is not

before us. This appeal is in the same procedural posture as if it

were an appeal from an underlying suit involving only a claim for

appellate malpractice by Taylor against Butler & Binion. In such

a case, Butler & Binion would have no grounds under Texas law to

recover its attorneys’ fees from Taylor in defending against her

appellate malpractice claim. So, too, Butler & Binion has no

grounds under Texas law to recover its attorneys’ fees from Taylor

in this appeal. Therefore, we must reverse the district court’s

grant of appellate attorneys’ fees to Butler & Binion. 

III. Conclusion

For the foregoing reasons, the district court is

AFFIRMED in part and REVERSED in part.