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

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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 competi ng motions for summary judgment in a lawsuit seeking commission for the sale of r eal property pursuant to a termination of listing agreement (the “Termination Agreem ent”). In two issues, the first with multiple subparts, Ebby Halliday Real Esta te, 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 moti on for summary judgment on its breach of contract claim and in granting Mark Gi ambrone’s (“Seller’s”) motion for summary judgment, and that it is entitled to attorney fees. As discussed below, we reverse the–2– trial court’s judgment, render judgment fo r Ebby Halliday, and remand to the trial court to determine attorney’s fees. I. Background On September 2, 2020, Ebby Halliday and Seller entere d an exclusive listing agreement (the “Listing Agreement”). Th e Listing Agreement provided for Ebby Halliday to receive a 6% commission for the sale of Seller’s prope rty and was to be in effect until September 2, 2021. After five months, Seller received no se rious offers to purchase his property. Accordingly, on February 3, 2021, Seller and the Ebby Ha lliday listing agent entered the Termination Agreement. The Terminati on Agreement provides that the Listing Agreement is terminated and the prop erty will be removed from the Multiple Listings Service (“MLS”). The secti on of the Termination Agreement entitled “Termination Fees,” provides in pertinent part:–3– 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 th e 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 evid ence establishes that Seller breached the contract and Ebby Halliday is entitled to judgmen t as a matter of law, (ii) the procuring cause doctrine does not apply, (iii) the Termination

1 The Ebby Halliday listing agent had previously show n Stevens the property during the term of the Listing Agreement.–4– Agreement complies with the statute of fr auds, (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 summa ry judgment, “we follow the usual standard of review for tr aditional 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 su mmary 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 2 000, pet. denied). Traditi onal summary judgment is properly granted only when a m ovant establishes that ther e are no genuine issues of material fact and that it is entitled to judgment as a matter of law. T EX

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. 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 ma tter 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 a ll summary judgment grounds. The record reflects otherwise.–5– pet. denied). When a defe ndant moves for summary judgm ent, it must either (1) disprove at least one element of the plai ntiff’s cause of action or (2) plead and conclusively establish each essential element of an a ffirmative 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 materi al 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 movantmust conclusively establis h its right to judgment as a matter of law. See id . A matter is conclusively es tablished if reasonable people could not differ as to the conclusi on 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 constr uing 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 contr acts are to be construed as a whole to–6– 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 cl aim are (i) a valid contract, (ii) performance or tendered performance by the pl aintiff, (iii) breach by the defendant, and (iv) damages sustained by the pl aintiff as a result of that breach. Dixie Carpet Installations, Inc. v. Re sidences 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 implie dly promised to perform.” Gaspar v. Lawnpro, Inc ., 372 S.W.3d 754, 757 (Tex. App.—Da llas 2012, no pet.). Whethe r 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 wa s not entitled to summary judgment because it was not the “procuri ng 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 ru le that applies to every contract for a commission and is applicable in the instan t case. Ebby Halliday responds that under the unambiguous terms of the Termination Agreement, the procuring cause doctrine does not apply, and Seller breached the c ontract by failing to pay the termination–7– fee. In other words, Ebby Halliday argues that the procuring cause doctrine does not apply when the parties expressly contractotherwise. We agre e 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 commissi on 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 Selle r relies set forth the framework for determining wh en the doctrine applies. Perthuis, 645 S.W.3d at 231. The Perthuis court observed that under the pr ocuring 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 determ ine 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 co mmissions 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 th e sale—they need only say so.” Id. at 235. Recognizing that the parties’ contract can “displace” the default rule, the court stated:–8– Departing from the procuring cause doc trine’s default rule requires no magic language. A contract merely needs to provide terms that are inconsistent with the default rule—whi ch 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 ag ree 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 Selle r terminating the Listing Agre ement. To this end, the Termination Agreement’s terms “cabin ” the commission-base d termination fee obligation on Seller agreeing to “sell or le ase 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—a greeing to sell or lease the property to anyone on or before the specified date. This contract ual language is sufficient to displace application of the default rule. See id at 234.–9– As the Perthuis court observed, when the partie s provide their own rules for paying or withholding commissions, “the procuring cause doctrine becomes irrelevant.” Id . at 236. “When a contract prescrib es 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 Ag reement displace the procuring cause doctrine and control the respective rights and obligations of the parties. Therefore, to the extent the trial court’s summary ju dgment determination was based on Seller’s procuring cause argumen t, it was in error. 3
C. Statute of Frauds Seller argues that the Termination Agreem ent does not comply with the statute of frauds requirements in the Texas O ccupations Code. The Occupations Code requires: A person may not maintain an actio n 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 base d, 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. T EX

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. § 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 de finite commission will be paid, or must

3 Seller also argues that, at a mi nimum, there is a fact issue a bout whether Ebby Halliday was the procuring cause of the sale. We reject this argument b ecause procuring cause is irrelevant to this analysis. See Perthuis , 645 S.W.3d at 236.–10– refer to a written commission sc hedule; (3) state the name of the broker to whom the commission is to be paid; and (4) either its elf or by reference to some other existing writing, identify with reasonable cert ainty the land to be conveyed.” Litton Loan Serv., L.P. v. Manning , 366 S.W.3d 837, 840 (Tex. App.—D allas 2012, pet. denied). According to Seller, the Termination Ag reement does not meet these requirements because it does not constitute a promise thata 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 rela tionship between paragraphs D(2) and D(3). Specifically, Seller maintains that because of the Relisting La nguage in paragraph D(3) (stating “[i]f owner decides to sell property we will relist the property on or before 12/31/2012”), the comm ission is only payable if Ebby Halliday relists the property and he agrees to sell or lease the property. Again, the provisions read:–11– As reflected in the express, unambi guous 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].” Th ere is no check next to the box in which the Relisting Language appears. Indeed, th e contract specifies that only one box should be checked, which clarif ies the parties’ intent that the only situation in which commission is to be paid is the one sp ecified by the checked box. Moreover, the Relisting Language is not con tingent upon the language in 3(a); instead, it is a separate part of the agreement. Accordin gly, 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 ma rket 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 opportun ity or agreement to agree and does not specify the broker. In that case, the pa rties relied on five documents including emails, a real estate contract, and a lette r on letterhead that contained various information concerning a real estate tr ansaction. But none of the documents contained a promise to pay a commission/term ination 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 suffi cient to satisfy the statute of frauds. See T EX

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. § 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 th e 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 distin guished 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 enforceab ility of the remaining provisi ons of the contract unless the breach is a material or total breach.” Id. “In order to determine whether a condition precedent exists, the in tention 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 Cr ossroads 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 elem ents. 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.–13– Language such as “if,” “p rovided that,” “on conditi on that,” or some other conditional phrase is usually used to cr eate 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 ra ther than impose a condition. Solar Applications , 327 S.W.3d at 109; Criswell , 327 S.W.2d at 948. If the partie s’ intent is not clear from the language of the contract and another reasonable interpretation is possible, the agreement will be interprete d as creating a covenant ra ther 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, butthe 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 propert y.” 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 de scribing 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, 766–77–14– (Tex. App.—Dallas 2008, no pet.) (condition precedent where agreement provided for forfeiture of payments if party fail ed 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 subj ect 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 differe nt subject than the commission. Finally, Seller argues that the Relisti ng 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 Term ination 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. Wh en Seller wanted to e nd the agreement early, the listing and the parties’ rights and obligat ions under the Listing Agreement were terminated in the Termination Agreemen t. As evidenced by the Termination Agreement’s express reference to “termina tion fees,” as consideration for early termination of the listing the Termina tion Agreement provided for broker’s compensation by payment of a 3% commissi on if the Seller agreed to sell the–15– property to anyone before December 31, 2021. Thus, the expr ess terms of the contract make clear why a commission is owed regardless of whether the property is relisted. The Relisting La nguage that Seller erroneously attempts to bootstrap to this section is a separate covenant, not a condition. To read the contract as Seller suggests would impo se 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, wr it 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 construc tion 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 wh en 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 cond ition” to Ebby Halliday receiving the commission. To the extent the trial cour t’s summary judgment determination was based on Seller’s condition preceden t argument it was erroneous. E. Contract Interpretation Seller advances several additional c ontract interpretation arguments in support of summary judgment. Specifically , Seller argues that the listing agreement–16– with Compass controls and Compass, as the procuring cause of the sale, is the party entitled to a commission. He further argues th at the specific terms of the Termination Agreement control over the general a nd that the contract is ambiguous. We begin with ambiguity. 5 Seller argues that the contract is ambiguous about: ( i ) displacement of the procuring cause doc trine, (ii) whether the Relisting Language violates the statute of frauds, and (iii ) whether the Relisting Language creates a condition precedent. We have conclude d that the express language of the Termination Agreement displaces the procuri ng cause doctrine, there is no statute of frauds violation, and relisti ng 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 E bby 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 mere ly 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 ambi guous 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). Ther e is no ambiguity here.

5 Tacitly acknowledging that ambiguity was not raised in the court below, Seller notes that the court may independently conclude th at 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 Co mpass 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 Co mpass listing agreement are not, as Seller suggests, competing listing agreemen ts. A listing agreement is a contract between a seller and br oker in which the seller lists hi s 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 te rminated the listing relationship and then included language c ontemplating a new listing agreement in the future. In consideration for Ebby Hal liday’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 contr act 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.). Applyi ng this general principle to the Termination Agreement, Seller argues that the listing was to terminate on February 4, 2021, but the Relis ting Language provides for payment of a termination fee if the property is soldon or before Decemb er 31, 2021. Thus, according to Seller, the Termination Agr eement “does not provide for the specific–18– ability for [Ebby Halliday] to ob tain 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 tw o 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 Homeowne rs v. Clarksville Seniors Apts ., 848 S.W. 2d 772, 775 (Tex. App.—Texar kana 1993, writ denied) (general and specific provisions regarding restrictive c ovenants). In contrast, the two separate sections of the Termination Agreement pertai n to entirely different topics. The first, falling under the distinct header “Termina tion 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. Ther e is no conflict here. To the extent the trial court’s summary judgment determination was based on any of these additional contract inte rpretation arguments, it was in error.
F. Breach of Contract and Attorney’s Fees We have concluded that the Termina tion Agreement required Seller to pay Ebby Halliday a 3% commission as a terminati on fee if the Seller agreed to sell the property to anyone on or before the specifie d date. It is undisputed that the Seller–19– agreed to sell the property during the ap plicable 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
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. § 38.001(8); see also Woodhaven Partners, Ltd. v. Shamoun & Norman , 422 S.W.3d 821, 837–38 (Tex. A pp.—Dallas 2014, no pet.). Because Ebby Halliday is entitled to summ ary 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– 

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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 fo r 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 HALL IDAY 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.