REVERSE; RENDER and REMAND and Opinion Filed February 28, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00386-CV 

EBBY HALLIDAY REAL ESTATE, INC. D/B/A EBBY HALLIDAY 

REALTORS, DAVE PERRY MILLER REAL ESTATE, WILLIAMS TREW 

REAL ESTATE, Appellants 

V. 

MARK GIAMBRONE, Appellee 

On Appeal from the 192nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-17047 

MEMORANDUM OPINION 

Before Justices Reichek, Nowell, and Garcia 

Opinion by Justice Garcia 

This appeal arises from competing motions for summary judgment in a 

lawsuit seeking commission for the sale of real property pursuant to a termination of 

listing agreement (the “Termination Agreement”). In two issues, the first with 

multiple subparts, Ebby Halliday Real Estate, Inc. d/b/a Ebby Halliday Realtors, 

Dave Perry-Miller Real Estate, Williams Trew Real Estate (“Ebby Halliday”) argues 

the trial court erred in denying its motion for summary judgment on its breach of 

contract claim and in granting Mark Giambrone’s (“Seller’s”) motion for summary 

judgment, and that it is entitled to attorney fees. As discussed below, we reverse the 
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trial court’s judgment, render judgment for Ebby Halliday, and remand to the trial 

court to determine attorney’s fees. 

I. Background 

On September 2, 2020, Ebby Halliday and Seller entered an exclusive listing 

agreement (the “Listing Agreement”). The Listing Agreement provided for Ebby 

Halliday to receive a 6% commission for the sale of Seller’s property and was to be 

in effect until September 2, 2021. 

After five months, Seller received no serious offers to purchase his property. 

Accordingly, on February 3, 2021, Seller and the Ebby Halliday listing agent entered 

the Termination Agreement. The Termination Agreement provides that the Listing 

Agreement is terminated and the property will be removed from the Multiple 

Listings Service (“MLS”). The section of the Termination Agreement entitled 

“Termination Fees,” provides in pertinent part: 
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On June 11, 2021, Seller executed a listing agreement with Compass RE 

Texas, LLC (“Compass”), and on the same day, sold his property to John and 

Savannah Stevens, Co-Trustees of the J&S Stevens Revocable Trust (“Stevens”).1

Ebby Halliday demanded its termination fee, specifically $167,250.00 as the 

3% commission from the sale pursuant to the Termination Agreement. Seller refused 

to pay and Ebby Halliday initiated this suit for breach of contract. The title company 

deposited the escrow into the registry of the court. 

Both Ebby Halliday and Seller filed traditional motions for summary 

judgment. The trial court granted Seller’s motion, denied Ebby Halliday’s motion, 

and dismissed Ebby Halliday’s claims. Ebby Halliday now appeals from that 

judgment. 

II. Issues on Appeal 

This appeal centers on the meaning and effect of the Termination Agreement; 

specifically, the meaning of the handwritten clause stating, “If owner decides to sell 

property we will relist the property on or before 12/31/21” (the “Relisting 

Language”). Ebby Halliday argues the trial court’s summary judgment in favor of 

Seller was in error because: (i) the summary judgment evidence establishes that 

Seller breached the contract and Ebby Halliday is entitled to judgment as a matter of 

law, (ii) the procuring cause doctrine does not apply, (iii) the Termination 

1

 The Ebby Halliday listing agent had previously shown Stevens the property during the term of the 

Listing Agreement. 
 –4– 

Agreement complies with the statute of frauds, (iii) the Relisting Language in the 

Termination Agreement is not a condition precedent, and (iv) Seller’s contract 

interpretation arguments fail.2

 Ebby Halliday further contends that should it prevail 

on its first issue, it is entitled to a remand for attorney fees. 

III. Analysis 

A. Standard of Review and Applicable Law 

In reviewing cross-motions for summary judgment, “we follow the usual 

standard of review for traditional summary judgments.” Lockheed Martin Corp. v. 

Gordon, 16 S.W.3d 127, 132 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). 

On appeal, we review summary judgments de novo. Provident Life & Accident Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Dickey v. Club Corp., 12 S.W.3d 

172, 175 (Tex. App.—Dallas 2000, pet. denied). Traditional summary judgment is 

properly granted only when a movant establishes that there are no genuine issues of 

material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 

748 (Tex.1999). When a plaintiff moves for summary judgment, he must prove that 

he is entitled to summary judgment as a matter of law on each element of his cause 

of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986) (per curiam); 

Affordable Motor Co. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App.—Dallas 2011, 

2

 We reject Seller’s argument that Ebby Halliday failed to challenge all summary judgment grounds. 

The record reflects otherwise. 
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pet. denied). When a defendant moves for summary judgment, it must either (1) 

disprove at least one element of the plaintiff’s cause of action or (2) plead and 

conclusively establish each essential element of an affirmative defense to rebut 

plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam); 

Ward v. Stanford, 443 S.W.3d 334, 342 (Tex. App.—Dallas 2014, pet. denied). 

To decide whether issues of material fact preclude summary judgment, 

evidence favorable to the non-moving party must be taken as true, every reasonable 

inference must be indulged in its favor, and any doubts resolved in its favor. 

Sandberg v. STMicroelectronics, Inc., 600 S.W.3d 511, 521 (Tex. App.—Dallas 

2020, pet. denied). The movant must conclusively establish its right to judgment as 

a matter of law. See id. A matter is conclusively established if reasonable people 

could not differ as to the conclusion to be drawn from the evidence. City of Keller v. 

Wilson, 168 S.W.3d 802, 816 (Tex. 2005). 

The primary concern of a court in construing a written contract is to ascertain 

the true intent of the parties as expressed in the instrument. Nat’l Union Fire Ins. Co. 

of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Monroe 

Guar. Ins. Co. v. BITCO Ins. Corp. 640 S.W.3d 195, 198–99 (Tex. 2022). To do so, 

we look first to the contract’s text. See U.S. Metals, Inc. v. Liberty Mut. Grp., Inc., 

490 S.W.3d 20, 23 (Tex. 2015). Terms in contracts are given their plain, ordinary, 

and generally accepted meanings, and contracts are to be construed as a whole to 
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harmonize and give effect to all provisions of the contract. Valence Operating Co. 

v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). 

The elements of a contract breach claim are (i) a valid contract, (ii) 

performance or tendered performance by the plaintiff, (iii) breach by the defendant, 

and (iv) damages sustained by the plaintiff as a result of that breach. Dixie Carpet 

Installations, Inc. v. Residences at Riverdale, LP, 599 S.W.3d 618, 625 (Tex. App.—

Dallas 2020, no pet.). “A breach of contract occurs when a party fails to perform an 

act it has explicitly or impliedly promised to perform.” Gaspar v. Lawnpro, Inc., 372 

S.W.3d 754, 757 (Tex. App.—Dallas 2012, no pet.). Whether a party has breached 

a contract is a legal question for the court, not a fact question for the jury if the facts 

of the parties’ conduct are undisputed or conclusively established. Grohman v. 

Kahlig, 318 S.W.3d 882, 887 (Tex. 2010). 

B. Procuring Cause 

Seller argued that Ebby Halliday was not entitled to summary judgment 

because it was not the “procuring cause” of the sale. Relying on Perthuis v. Baylor 

Miraca Genetics Labs, LLC, 645 S.W.3d 228, 231 (Tex. 2022), Seller maintains that 

the procuring cause doctrine is a default rule that applies to every contract for a 

commission and is applicable in the instant case. Ebby Halliday responds that under 

the unambiguous terms of the Termination Agreement, the procuring cause doctrine 

does not apply, and Seller breached the contract by failing to pay the termination 
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fee. In other words, Ebby Halliday argues that the procuring cause doctrine does not 

apply when the parties expressly contract otherwise. We agree with Ebby Halliday. 

The procuring cause doctrine was first articulated many years ago in Goodwin 

v. Gunter, 185 S.W. 295, 296 (Tex. 1916). There, the court held that the procuring 

cause doctrine provides “for a broker to be entitled to commission under a contract 

stipulating for their payment in the event of his sale of given property upon stated 

terms.” Id. at 296. The Perthuis decision upon which Seller relies set forth the 

framework for determining when the doctrine applies. Perthuis, 645 S.W.3d at 231. 

The Perthuis court observed that under the procuring cause doctrine, “the 

broker’s entitlement to a commission vests on his having procured the sale, not on 

his actual involvement in a sale’s execution.” Id. at 234. To determine when the 

doctrine applies, courts must first determine whether the parties have the kind of 

contractual relationship to which the doctrine applies. Id. at 231. If so, courts next 

consider whether the parties displaced the doctrine by the terms of their contractual 

agreement. Id. 

If a contract says nothing more than commissions will be paid for sales, the 

procuring cause doctrine is the default rule. Id. at 234. But the court expressly 

recognized that “parties may condition the obligation to pay a commission on 

something other than procuring the sale—they need only say so.” Id. at 235. 

Recognizing that the parties’ contract can “displace” the default rule, the court 

stated: 
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Departing from the procuring cause doctrine’s default rule requires no 

magic language. A contract merely needs to provide terms that are 

inconsistent with the default rule—which is to say, terms that in some 

way cabin the textually imposed contractual obligation to pay a 

commission. 

Id. at 234. 

It is not uncommon for parties to agree that a broker will still receive a 

commission after a listing is terminated without requiring that the broker procure the 

purchaser. See, e.g., EID Corp. v. Fort Worth-Tarrant Sunbelt, Inc., No. 02-05-61-

CV, 2006 WL 1562665, at *3, 6 (Tex. App.—Fort Worth June 8, 2006, no pet.) 

(mem. op.); WesTex Abilene Assocs., L.P. v. Franco, 3 S.W.3d 45, 46–47 (Tex. 

App.—Eastland 1999, no pet.). In the case at bar, as evidenced by the heading 

“Termination Fees” under which the provisions at issue appear, the amount at issue 

was a termination fee for Seller terminating the Listing Agreement. To this end, the 

Termination Agreement’s terms “cabin” the commission-based termination fee 

obligation on Seller agreeing to “sell or lease the property to anyone” on or before 

December 31, 2021. Thus, the contract provides not only that Ebby Halliday need 

not procure the sale, but also that Ebby Halliday need not be involved in the sale or 

listing at all. Rather, the obligation to pay Ebby Halliday the termination fee is 

triggered by Seller’s actions—agreeing to sell or lease the property to anyone on or 

before the specified date. This contractual language is sufficient to displace 

application of the default rule. See id at 234. 
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As the Perthuis court observed, when the parties provide their own rules for 

paying or withholding commissions, “the procuring cause doctrine becomes 

irrelevant.” Id. at 236. “When a contract prescribes otherwise-valid binding terms 

for how to handle post-termination commissions . . . the courts will enforce them.” 

Id. at 237. 

The express terms of the Termination Agreement displace the procuring cause 

doctrine and control the respective rights and obligations of the parties. Therefore, 

to the extent the trial court’s summary judgment determination was based on Seller’s 

procuring cause argument, it was in error.3

C. Statute of Frauds 

Seller argues that the Termination Agreement does not comply with the statute 

of frauds requirements in the Texas Occupations Code. The Occupations Code 

requires: 

A person may not maintain an action in this state to recover a 

commission for the sale or purchase of real estate unless the promise or 

agreement on which the action is based, or a memorandum, is in writing 

and signed by the party against whom the action is brought or by a 

person authorized by that party to sign the document. 

TEX. OCC. CODE ANN. § 1101.806(c). To comply with 1106.806, “an agreement or 

memorandum must: (1) be in writing and must be signed by the person to be charged 

with the commission; (2) promise that a definite commission will be paid, or must 

3

 Seller also argues that, at a minimum, there is a fact issue about whether Ebby Halliday was the 

procuring cause of the sale. We reject this argument because procuring cause is irrelevant to this analysis. 

See Perthuis, 645 S.W.3d at 236. 
 –10– 

refer to a written commission schedule; (3) state the name of the broker to whom the 

commission is to be paid; and (4) either itself or by reference to some other existing 

writing, identify with reasonable certainty the land to be conveyed.” Litton Loan 

Serv., L.P. v. Manning, 366 S.W.3d 837, 840 (Tex. App.—Dallas 2012, pet. denied). 

According to Seller, the Termination Agreement does not meet these requirements 

because it does not constitute a promise that a definite commission will be paid or 

name the broker to be paid. We find this argument unpersuasive. 

Seller’s argument that there is no promise for a definite commission is 

premised on his interpretation of the relationship between paragraphs D(2) and D(3). 

Specifically, Seller maintains that because of the Relisting Language in paragraph 

D(3) (stating “[i]f owner decides to sell property we will relist the property on or 

before 12/31/2012”), the commission is only payable if Ebby Halliday relists the 

property and he agrees to sell or lease the property. 

Again, the provisions read: 
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As reflected in the express, unambiguous terms above, the contract provides 

that the commission is payable if “Owner agrees to sell or lease the property to: 

anyone [on or before the specified date].” There is no check next to the box in which 

the Relisting Language appears. Indeed, the contract specifies that only one box 

should be checked, which clarifies the parties’ intent that the only situation in which 

commission is to be paid is the one specified by the checked box. Moreover, the 

Relisting Language is not contingent upon the language in 3(a); instead, it is a 

separate part of the agreement. Accordingly, Seller’s argument that the Termination 

Agreement simply provides an opportunity for Ebby Halliday to relist the property 

if he decides to put it back on the market on or before 12/31/21 and obtain a 

commission on the sale of the property if such relisting occurs is misplaced. 

Seller relies on Litton, 366 S.W.3d at 841 to argue that the Termination 

Agreement only concerns a future opportunity or agreement to agree and does not 

specify the broker. In that case, the parties relied on five documents including emails, a real estate contract, and a letter on letterhead that contained various 

information concerning a real estate transaction. But none of the documents 

contained a promise to pay a commission/termination fee or identified the broker to 

be paid. In the present case, however, the Termination Agreement unambiguously 

includes a promise to pay a commission and identifies Dave Perry Miller Real Estate 

as the broker to be paid. This is sufficient to satisfy the statute of frauds. See TEX.
 –12– 

OCC. CODE ANN. § 1101.806(c). Thus, to the extent the trial court granted Seller’s 

summary judgment motion based on the statute of frauds, it was in error.4

D. Condition Precedent 

Seller also argues that the Relisting Language is “an additional condition” that 

must be satisfied before Ebby Halliday is entitled to receive a commission. We 

disagree. 

“A condition precedent is an event that must happen or be performed before 

a right can accrue to enforce an obligation.” Solar Applications Eng’g, Inc. v. T.A. 

Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010) (quoting Centex Corp. v. Dalton, 840 

S.W.2d 952, 956 (Tex. 1992)). “A covenant, as distinguished from a condition 

precedent, is an agreement to act or refrain from acting in a certain way.” Id. 

Although breach of a covenant may give rise to a cause of action for damages, it 

“does not affect the enforceability of the remaining provisions of the contract unless 

the breach is a material or total breach.” Id. “In order to determine whether a 

condition precedent exists, the intention of the parties must be ascertained; and that 

can be done only by looking at the entire contract.” Solar Applications, 327 S.W.3d 

at 109 (quoting Criswell v. European Crossroads Shopping Ctr., 792 S.W.3d 945, 

948 (Tex. 1990)). 

4

 Seller also argues for the first time on appeal that Ebby Halliday only argued traditional contract 

elements in the court below and did not argue it met the Occupations Code elements. We do not consider 

this argument. See Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019) (argument raised for the first time 

on appeal waived). Moreover, the record reflects that Ebby Halliday did raise this argument below. 
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Language such as “if,” “provided that,” “on condition that,” or some other 

conditional phrase is usually used to create a condition precedent to performance. 

Solar Applications, 327 S.W.3d at 108; Hohenberg Bros. v. George E. Gibbons & 

Co., 537 S.W.2d 1, 3 (Tex. 1976). The absence of such language indicates the parties 

intended to make a promise rather than impose a condition. Solar Applications, 327 

S.W.3d at 109; Criswell, 327 S.W.2d at 948. If the parties’ intent is not clear from 

the language of the contract and another reasonable interpretation is possible, the 

agreement will be interpreted as creating a covenant rather than a condition to 

prevent forfeiture. Criswell, 792 S.W.2d at 948. 

Seller insists that the use of the term “if” in the Relisting Language evidences 

a condition. We agree, but the condition does not pertain to the payment of a 

commission. The Relisting Language provides that “If owner decides to sell, [Ebby 

Halliday] will relist the property.” The conditional language in that section is “if 

owner decides to sell.” This conditional language, however, is not tied or connected 

to the preceding part of the agreement describing Ebby Halliday’s right to receive a 

commission. The conditional language in the “Termination Fees” section only 

conditions right to receive a commission on Seller agreeing to sell the property to 

anyone on or before the specified date. 

The authority Seller relies on to argue that the use of the word “if” signifies a 

condition precedent to the right to receive a commission is distinguishable from the 

instant case. See Shin-Con Dev’t Corp. v. I.P. Invs. Ltd., 270 S.W.3d 759, 766–77 
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(Tex. App.—Dallas 2008, no pet.) (condition precedent where agreement provided 

for forfeiture of payments if party failed to attain title and execute easement 

agreement); Don Drum Real Estate Co. v. Hudson, 465 S.W.2d 409, 411 (Tex. 

App.—Dallas 1971, no writ) (contract not binding unless loan obtained); Mayberry 

v. Julian, 479 S.W.2d 770, 772, 774 (Tex. App.—Dallas 1972, writ ref’d n.r.e.) 

(condition precedent when contract subject to obtaining a satisfactory zoning 

change). Unlike this case, the “if” or required preceding action in the cited cases 

directly concerned the condition precedent. Here, the word “if” in the Relisting 

Language concerns an entirely different subject than the commission. 

Finally, Seller argues that the Relisting Language must be a condition and 

cannot be a covenant because the Relisting Language would have no function if “the 

commission would still be owed without the relisting.” This argument 

misapprehends the purpose of the Termination Agreement as evidenced by the 

express terms of the agreement. 

The Listing Agreement provided for a 6% commission and was to be in effect 

through September 2, 2021. When Seller wanted to end the agreement early, the 

listing and the parties’ rights and obligations under the Listing Agreement were 

terminated in the Termination Agreement. As evidenced by the Termination 

Agreement’s express reference to “termination fees,” as consideration for early 

termination of the listing the Termination Agreement provided for broker’s 

compensation by payment of a 3% commission if the Seller agreed to sell the 
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property to anyone before December 31, 2021. Thus, the express terms of the 

contract make clear why a commission is owed regardless of whether the property 

is relisted. The Relisting Language that Seller erroneously attempts to bootstrap to 

this section is a separate covenant, not a condition. 

To read the contract as Seller suggests would impose a condition for payment 

of a commission that does not exist. See e.g., Calloway v. Overholt, 796 S.W.2d 828, 

833–34 (Tex. App.—Austin 1990, writ denied) (no condition); Frady v. May, 23 

S.W.3d 558, 560 (Tex. App.—Fort Worth 2000, pet. denied) (same). It would also 

result in no consideration to Ebby Halliday for the early termination of the listing. 

Seller’s proposed construction is not reasonable. See Markel Ins. Co. v. Muzyka, 293 

S.W.3d 380, 387 (Tex. App.—Fort Worth 2004, no pet.) (courts do not construe 

contracts to produce an absurd result when a reasonable alternative construction 

exists). 

Based on the unambiguous, plain language of the Termination Agreement, we 

conclude that the Relisting Language does not make Ebby Halliday’s relisting of 

Seller’s property “an additional condition” to Ebby Halliday receiving the 

commission. To the extent the trial court’s summary judgment determination was 

based on Seller’s condition precedent argument it was erroneous. 

E. Contract Interpretation 

Seller advances several additional contract interpretation arguments in 

support of summary judgment. Specifically, Seller argues that the listing agreement 
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with Compass controls and Compass, as the procuring cause of the sale, is the party 

entitled to a commission. He further argues that the specific terms of the Termination 

Agreement control over the general and that the contract is ambiguous. 

We begin with ambiguity.5

 Seller argues that the contract is ambiguous about: 

(i) displacement of the procuring cause doctrine, (ii) whether the Relisting Language 

violates the statute of frauds, and (iii) whether the Relisting Language creates a 

condition precedent. We have concluded that the express language of the 

Termination Agreement displaces the procuring cause doctrine, there is no statute of 

frauds violation, and relisting the property is not a condition precedent to Seller’s 

obligation to pay the termination fee. In so concluding, we find no ambiguity. 

Seller’s obligation to pay Ebby Halliday the 3% commission as a termination fee if 

he agreed to sell the property on or before the specified date is clear and can be 

afforded a definite legal meaning. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 

1983). An agreement is not ambiguous merely because the parties offer different 

interpretations of its language. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 

455, 458 (Tex. 1997). A contract is only ambiguous if its language is susceptible to 

two or more reasonable interpretations. Kelley-Coppedge, Inc. v. Highlands Ins. 

Co., 980 S.W.2d 462, 465 (Tex. 1998) (emphasis added). There is no ambiguity here. 

5

 Tacitly acknowledging that ambiguity was not raised in the court below, Seller notes that the court 

may independently conclude that there is an ambiguity. See Rosetta Res. Operating, LP v. Martin, 645 

S.W.3d 212, 219 (Tex. 2022). 
 –17– 

Seller’s argument concerning the Compass listing agreement also fails. 

Whether the Compass listing agreement was in force at the time of the sale and 

whether Compass was the procuring cause of the sale is of no consequence to 

Seller’s obligations to Ebby Halliday under the Termination Agreement. 

The Termination Agreement and the Compass listing agreement are not, as 

Seller suggests, competing listing agreements. A listing agreement is a contract 

between a seller and broker in which the seller lists his property with a broker to 

negotiate a sale with potential buyers. Callaway, 796 S.W.2d at 832, n.2. The 

Termination Agreement does not meet this criterion. Indeed, it terminated the listing 

relationship and then included language contemplating a new listing agreement in 

the future. In consideration for Ebby Halliday’s early termination of the listing, 

Seller agreed to pay the 3% commission if he agreed to sell the property on or before 

the specified date. His subsequent contract with Compass does not relieve him of 

this separate contractual obligation to Ebby Halliday. 

Finally, Seller argues that “specific and exact terms are given greater weight 

than general language.” Worldwide Asset Purchasing, LLC v. Rent-A-Center East, 

Inc., 290 S.W.3d 554, 560 (Tex. App.—Dallas 2009, no pet.). Applying this general 

principle to the Termination Agreement, Seller argues that the listing was to 

terminate on February 4, 2021, but the Relisting Language provides for payment of 

a termination fee if the property is sold on or before December 31, 2021. Thus, 

according to Seller, the Termination Agreement “does not provide for the specific 
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ability for [Ebby Halliday] to obtain a commission from the sale of the property after 

the listing termination date of 2/4/2021,” but instead “generally describes the future 

ability of [Ebby Halliday] to relist the property.” 

This argument conflates two separate sections of the contract that have 

separate and distinct meanings. Seller’s cited authority, however, pertains to 

contracts with two provisions on the same topic. See Friedlander v. Christianson, 

320 S.W.2d 404, 408 (Tex. App.—Houston 1959, no writ) (two provisions 

concerning termination date); Silver Spur Add’n Homeowners v. Clarksville Seniors 

Apts., 848 S.W. 2d 772, 775 (Tex. App.—Texarkana 1993, writ denied) (general and 

specific provisions regarding restrictive covenants). In contrast, the two separate 

sections of the Termination Agreement pertain to entirely different topics. The first, 

falling under the distinct header “Termination Date” is the effective date of the 

listing termination. The second, appearing in a separate section with the header 

“Termination Fees” describes when and how Seller is obligated to pay the 

termination fee. There is no conflict here. 

To the extent the trial court’s summary judgment determination was based on 

any of these additional contract interpretation arguments, it was in error. 

F. Breach of Contract and Attorney’s Fees 

We have concluded that the Termination Agreement required Seller to pay 

Ebby Halliday a 3% commission as a termination fee if the Seller agreed to sell the 

property to anyone on or before the specified date. It is undisputed that the Seller 
 –19– 

agreed to sell the property during the applicable time period and the $167,250.00 

commission was not paid to Ebby Halliday. Thus, the summary judgment evidence 

establishes that Seller breached the contract. See Gaspar, 372 S.W.3d at 757. 

A plaintiff may recover attorney’s fees for breach of a written contract. See 

TEX.CIV. PRAC. & REM.CODE ANN. § 38.001(8); see also Woodhaven Partners, Ltd. 

v. Shamoun & Norman, 422 S.W.3d 821, 837–38 (Tex. App.—Dallas 2014, no pet.). 

Because Ebby Halliday is entitled to summary judgment on its breach of contract 

claim, it is also entitled to attorney’s fees. Accordingly, we remand to the trial court 

for determination of those fees. See Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 

349 (Tex. 1971) (attorney’s fees determined by trial court). 

III. Conclusion 

We reverse the trial court’s judgment granting Seller’s motion for summary 

judgment and dismissing Ebby Halliday’s claims, render judgment granting Ebby 

Halliday summary judgment on its breach of contract claim and awarding it actual 

damages in the amount of $167,250.00, and remand to the trial court for a 

determination of Ebby Halliday’s attorney’s fees. 

220386F.P05 

 

/Dennise Garcia/ 

DENNISE GARCIA 

JUSTICE 
 –20– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EBBY HALLIDAY REAL ESTATE, 

INC. D/B/A EBBY HALLIDAY 

REALTORS, DAVE PERRY 

MILLER REAL ESTATE, 

WILLIAMS TREW REAL ESTATE, 

Appellant 

No. 05-22-00386-CV V. 

MARK GIAMBRONE, Appellee 

 On Appeal from the 192nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-17047. 

Opinion delivered by Justice Garcia. 

Justices Reichek and Nowell 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is REVERSED and judgment is RENDERED that: 

Summary judgment is granted for Ebby Halliday on its breach of 

contract claim and Ebby Halliday is awarded $167,250.00 in actual 

damages. 

The case is REMANDED to the trial court for a determination of 

Ebby Halliday’s attorney’s fees. 

 It is ORDERED that appellant EBBY HALLIDAY REAL ESTATE, INC. 

D/B/A EBBY HALLIDAY REALTORS, DAVE PERRY MILLER REAL 

ESTATE, WILLIAMS TREW REAL ESTATE recover its costs of this appeal 

from appellee MARK GIAMBRONE. 

Judgment entered this 28th day of February 2023.