REVERSE and RENDER and Op inion Filed February 27, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05-17-01105-CV MORBEN REALTY CO., INC., Appellant V. TEXAS CAPITAL HOLDINGS, LLC AND TCHF III, LP, Appellee On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-04626 

### MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Whitehill Morben Realty Co., Inc. seeks to recover attorney’s fees the t rial court declined to award after finding that Texas Capital Holdings, LLC and TCHF, III, L P (collectively, Texas Capital)

breached its contract with Morben. We conclude that the contract unambiguously distinguishes betwe en (i) the seller’s remedy for buyer’s breach, which consists of liquidated damages, and ( ii) the attorney’s fees a party successfully suing for breach is entitled to receive. Therefor e, the trial court erred by not awarding Morben its attorney’s fees. We thus reverse the trial court’s judgment on attorney’s fees and render judgment that Morben recover the $130,0000 in attorney’s fees t he parties stipulated Morben

would be entitled to receive i f it prevailed at trial.–2– I. B ACKGROUND Texas Capital appealed the trial court’s judgment in a breach o f contract suit. Morben filed a cross-appeal challenging the denial of attorney’s fees. For reasons known to the parties, Morben’s attorney’s fees cha llenge is all that remains. The parties’ dispute ar ose after a contract for Morben’s sale o f a shopping center to Texas Capital did not timely close a nd Texas Capital did not release the earnest money it had deposited with the title agent. Morben sued for breach of contract and d eclaratory judgment and requested damages and attorney’s fees. During a bench trial, the parties stipulated that Morben’s atto rneys’ fees would be $130,000.00 if it prevailed—which it did. The final judgment, however, did not award Morben its attorney’s fees. To that end, th e trial court’ s findings and c onclusions explained that Morben was not entitled to recover attorney’s fees because: The contract between the parties provides that Plaintiff/Seller Morben’s sole remedy is a return of the earnest money deposited . . . The contract specifically provi des that one of the Buyer’s reme dies is the award of attorneys’ fees. The contract does not provide f or the award o f attorneys’ fees as a Seller’s remedy. Given the incongruous language between the Bu yer's & Seller’s remedies, the contract itself doe s not form a basis for the Sel ler to recover attorneys’ fees. Moreover, the contract also states that Plaintiff /Selle r Morben’s sole remedy is a return of the earnest money deposited. Given the explicit “sole remedy” language, the Seller has contract ed away any right to the recov ery of attorneys’ fees under a statutory, or any other, basis. These findings, as reflected in t he final judgment, form the ba sis of Morben’s appeal. II. Analysis Morben’s sole issue argues that the trial court erred by not a warding its attorney’s fees because the contract unambiguously provides that the prevailing party in a dispute is entitled to recover its attorney ’s fees. We agree.–3– A. Standard of Review and Applicable Law Generally, we review a trial court’s award of attorney’s fees u nder an abuse of discretion

standard. See Ridge Oil Co., Inc. v. Guinn Invs., Inc ., 148 S.W.3d 143, 163 (Tex. 2004). But our review of an unambiguous contract is de novo. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). When a contract’s meaning is unambiguous, our task is to dete rmine the parties’ intentions as expressed in the written instrument. Apache Deepwater, LLC v. McDaniel Partners, Ltd . 485 S.W.3d 900, 906 (Tex. 2016). Our approach is holistic. Hysaw v. Dawk ins, 483 S.W.3d 1, 8 (Tex. 2016). We “examine and consider the entire writing in an effor t to harmonize and give effect to all the provisions of the contra ct so that none will be rendere d meaningless.” J.M. Davidson, Inc.

v. Webster , 128 S.W.3d 223, 229 (Tex. 2003). No single provision taken a lone is controlling, but rather all provisions are “consid ered with reference to the who le instrument.” Id

. B. The Contract Texas law has “long distinguished attorneys’ fees from damages. ” In re Nalle Plastics Family Ltd. P’ship , 406 S.W.3d 168, 172 (Tex. 2013) (ori g. proceeding). So does this contract. Here, the contract’s paragraph 13 entitled “Remedies” generally provides the seller with a liquidated damages remedy if the purchaser defaults: Seller shall, as Seller’s sole remedy , be entitled to terminate this Contract and receive and retains the Earnest Money deposit as liquidated damages ; it being specifically agreed between Selle r and Purchaser that Seller’s actual damages in the event of Purchaser’s default would be impossible to ascerta in and the Earnest Money Deposit is a reasonable estimate of the same . . . . (Emphasis added). Nonetheless, paragraph 17 specif ically provides that the prevai ling party is entitled to recover its attorney’s fees: In the event either party to this Contract commences legal acti on of any kind to enforce the terms and conditions of this Contract, the prevaili ng party in such–4– litigation shall be entitled to c ollect from the other party al l reasonable costs, expenses, and attorney’s fees i ncurred in connection with such action. Read as a whole, the contract unambiguously recognizes the diff erence here by addressing the seller’s sole damages remedy for a breach in paragraph 13 ( liquidated damages) and paragraph 17’s provision for recovery of attorney’s fees by the prevailin g party in a suit to recover those liquidated damages. That is, two separate paragraphs provide fo r two different things: (i) compensation for the underlying harm and (ii) payment for the a ttorney’s services to recover that compensation. The trial court’s construction, however, does not consider the contract as a whole, or

harmonize its terms. See Hackberry Creek Country Club v. Hackberry Creek Homeowners Ass’n, 205 S.W.3d 46, 55-56 (Tex. App.—Dallas 2006, pet. denied). Ins tead, the court’s interpretation renders the attorney’s fees provision mere surplusage. See id. We therefore hold that the trial court erred in concluding that the contract’s language was “incongruous” and precluded Morbe n from recovering both damages and attorney’s fees. The parties stipulated to $130,000 for Morben’s attorney’s fee s. A stipulation serves as proof on an issue that would otherwise be tried and is conclusi ve on the issue addressed. See Houston Lighting & Power Co. v. City of Wharton , 101 S.W.3d 633, 641 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Because the contract provides for the recovery of attorney’s fees to Morben as the prevailing party, t he trial court erred by not aw arding Morben the stipulated attorney’s fees.–5– III. Conclusion We resolve Morben’s sole issue in its favor, reverse the trial court’s judgment on attorney’s fees, and render judgment that Morben recover $130,000 in attor ney’s fees from Texas Capital Holdings, LLC and TCHF III L.P.

171105F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–6– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MORBEN REALTY CO ., INC., Appellant

No. 05-17-01105-CV V. TEXAS CAPITAL HOLDINGS, LLC AND TCHF III, LP, Appellee On Appeal from the 193rd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-16-04626. Opinion delivered by Justice Whitehill. Justices Molberg and Rei chek participating.

In accordance with this Court’s opinion of this date, the judg ment of the trial court that MORBEN REALTY CO., INC. is not ent itled to recove r its attorney ’s fees is REVERSED and judgment is RENDERED that: MORBEN REALTY CO., I NC recover $130,000. In attorney’s fees from TEXAS CAPITAL HOLDINGS, LLC AND TCHF III, LP.

It is ORDERED that appellant MORBEN REALTY C O., INC. recover its costs of th is appeal from appellee TEXAS CAPITAL HOLDINGS, LLC AND TCHF III, LP.

Judgment entered February 27, 2019.