## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 20

- 00226

- CV

___________________________

On Appeal from the 355th District Court Hood County, Texas Trial Court No. C2020069
Before Sudderth, C.J.; Birdwell and W alker, JJ. Memorandum Opin io n on Rehearing by Justice Bir dwell 

### B ETTY 

### C. B RITTON 

### , Appellant

V



### . K ENNETH 

### K. L AUGHLIN 

### , Appellee2 MEMORANDUM OPINION ON REHEARING
I. I ntro duction
In O ctober 2014, Appellant Betty C. Britton agreed to sell some land to Appellee Kenneth K. Laughlin in a contract for deed

. Four years later, she sued Laughl in on the c ontract , and t he trial cou rt entered a take

- nothing judgment aga inst
her and awar ded damages and attorney ’ s fees to Laughlin

. Britton ’ s appeal in that

case is pending before the Fourteen th Court of Appeals in Houston (No. 14

- 20

- 0 02 99

- CV )

. 1
I n April 202 0, rel ying on the same contr act , Britton again sued Laughlin , who raised res judi cata as an affirmative defense

. I n a sing le issue , Britton argues that the trial court erred by granting summary judgment on the affirmative defe nse . We initially affirmed i n part and vacated in part beca use Laughlin paid part of what he owed under the par ties ’ contract during the pendency of the appeal

. See Britton v. Laughlin , No. 02

- 20

- 00226

- CV, 2021 WL 3931981, at *3 (Tex. App.

— Fort Worth Sept. 2, 2021, no pet. h.) (mem. o p.).
In her motion for rehear ing of our September 2, 20 21 mem orandum opinion , Britton complain s that because Laughlin “ finally paid what the lawsuit forced him to
pay ” during the pendency of the appeal, which r esulted in mooting a por tion of her appeal, she should no longer be held responsible for paying “ attorney ’ s fees that may

1 See Supreme Court of Te x., Transfer of Cases from Courts of A ppeal s , M isc. Docket No. 20

- 90 48 (Mar. 31, 2020)

.3 total $84,721.50

. ” We agree, withdraw our September 2, 20 21 opinion and judgment , and substitute in its plac e this memorandum opinion and o ur contempor aneo usly issued judgment i n which we affirm in part, vacate in part, and r eve rse in part the trial

court ’ s judgment and remand the attorney ’ s

- fee issue to the trial court

. II. D is cussi on We review a summary jud gment de novo. Travelers Ins. v. J oachim , 315 S.W.3d 860, 862 (Tex. 20 10). A defendant is entitled to summary judgment on the affirmative
defense of res judicata if he conclusivel y proves all el ements of that defense : (1) a pri or f inal judgment on the m erits by a c ourt of competent jurisdiction; (2 ) identity of parties or those in privi ty with them; and (3) a second action based on the same claims
tha t were raised or could have be en raised in th e first action. E agle Oil & G as C o. v. TRO

- X, L.P. , 619 S.W .3d 699, 705

– 06 (Tex. 2021) ; see Tex. R. Civ. P. 1 66a(b), (c) ; Chau v. Riddle , 254 S.W.3d 453, 455 (Tex. 2008) (op. on reh ’ g)

. A
. The parties ’ contract f or deed
The p arties ’ contra ct for deed s et ou t payment terms as follows : (1) Pay monthly payments on Seller ’ s B ank of Amer ica note . . . with the approximate balance of $115,000 for the real property that is a part of this Contract for Deed ( “ Contract ” ). This loan payment is subject to a nnual revie w, an d the payment may increase acco rding to the terms of original note. (2) Pay any accrued interest monthly at the rate of (1 0 %) ten p er cent ($5 00.00

— interest on $60,000.00 ) shall be paid at the place as Seller may direct, beginn ing on Novembe r 1, 2014 and c ont inuing on the same day of each following month until the $ 60,0 00 principa l has been paid in full. Purchaser may pay am o unts tow ard the reduction4 of principal in addition to interest paym ents. Interest for each month shall be calculated on the princi pa l b alance owed. (3) Purchaser ag rees to pay all amounts listed above in full on or before the matu rity date, unless otherwise extended by written agreemen t of the Seller.
B. Britton ’ s first lawsuit
In her November 2018 l awsuit , B ritton complain ed of Lau gh li n ’ s having

“ defaulted under t he co ntract , fail ing to make the pay men ts to [ her ] ” as required by
the contrac t ’ s second payment term , referenced as “ the bal loon payment

. ” In February 2020 , after a bench t rial, the trial cour t entered a take

- not hing j u dgme nt a s

to Britton and awarded da mages to Laughlin on his counterclaim a gainst her

. C. Britt o n ’ s second lawsuit
In her April 2020 laws uit, Britton alleged that Laughlin had defaulted under the

c ontract by “ failing to make the payments to [h e r ] an d to the le nd er ” as required by
both the c ontra ct ’ s first and second payment terms. Laughlin an swered with a ge neral denial and the affirmative defense of

res judicata based on the F ebruary 2020 judgment , and he moved fo r s ummary judgment on th e aff irmativ e de fense

. T o his motion, he attached the pa rt ies ’ contract , Britton ’ s petition s in both case s , and the Febr uary 2020 judgment

. Britton respon ded
wi th argument but no summary judg ment evidence , a nd the trial court granted the
moti on after a hearing

.5 D. Laughlin ’ s mo tion to dis miss During th i s a ppea l ’ s pende ncy , Laug hlin ’ s counsel filed a motion to dismiss , arguing that the app eal had become moo t after L aughlin paid th e Ba n k of America
debt in full

. He attached an affidavit a nd ev idence s howing the Bank of America
d e bt ’ s payment in full and his corre spondence with Bri tton ’ s counsel

. See Tex. R

. App. P. 10.2. Laughlin ’ s counsel stated, “ H a ving sati sfied Payment Term 1, there is nothing left for Brit ton to gain from this case or ap peal. La ughli n ’ s paymen t gave her

a l l the relief she requested. The B ank of America note has bee n discharged, and she is no longer the debtor. ” W e de n ied the dismiss al motion. E. Analy sis In her single issue, Britton arg ues t hat the trial court erred by enterin g summary judgm ent for Lau gh lin based on res judicata o f the $ 6 0, 00 0 balloon pay ment when her second petition alleged a failur e to pay the Bank of America note

. There is no dispute that the part ies are t he same in both lawsuits. 2 See Eagle Oil
& Gas Co

. , 6 19 S.W.3d at 7 05

– 06

. I n th e first lawsuit, Bri tton sued Laug hlin a fter he failed to p ay the $60,000 bal loon payment

. A valid judgment that was final for res judica ta pur poses 3 resolve d tha t claim . T hus, the trial court did not err when it

2 In her motion to consolidate this appeal with the one in our sister c ou rt, Brit ton ackno wledged that both cases i nvo lved the sa m e partie s and c on tract
. We denied the motion t o co nsol idate.

3 “ [A] tria l court ’ s judgment is final for purposes of res judicata or collateral esto ppe l even while the case is on appeal. ” Gonzalez v. Guilbot , 315 S.W .3d 533, 5366 granted Laughlin ’ s summary j udgment mot io n on that claim , which Britto n ra i sed in
both lawsuits. To the extent Britton raised this in her sole issue, we overrule it.
I n th e secon d lawsuit, Britton also c omplained that Laughlin had failed to make
the Bank of America payments
. Regard less of th i s claim ’ s res judicata st atus , durin g the pendency of th is appeal, it bec a me moot upon Laugh lin ’ s payment of that debt

. Accord in gly, a justiciable contro versy no longer e xists between the parties on this
claim

. See Glassdoor, Inc. v . Andra Gr p

. , LP , 575 S. W.3d 523, 527 (Tex. 201 9)

. W e

ove rrule the remainder of Br itton ’ s sole issue as moot.
F. A t torney ’ s Fees
To his motion for summa ry judgment, Laughlin attached the parties ’ contract , which contains the following attorney’s

- fees provision : If either par ty retains an attorney to enfor ce this Contract, the prevailing party is entitled to recover reasonable attorney’s fees and court cos ts and other expenses. The term ‘prevailing party’ means the party that has succeeded on a significant issue in the litiga ti on and achieved a benefit wit h respect to the claims at issue, taken as a whole, whether or not damages are actually awarded to suc h part y.

n.3 (Tex. 20 10) ; see Scurlock Oil C o. v. Smithwick , 724 S .W.2 d 1, 6 (Tex. 1986) (op. on reh ’ g) (adopting general r ule that judgment is final for res judicata purposes d espite appeal) ; see also Tex. Bee f Cattle Co. v. Green , 92 1 S.W.2d 203, 207 (Tex. 1 996) (op. on reh ’ g) (explaining reason f or S curlock rule ’s ado ption “wa s the nonsen sical alterna tive of retr ying the same issues betwe en the same parties in subsequent proceedings with the possibility of in consis tent results ”). In Texas B eef C a ttl e Co. , t he court explaine d that the Sc u rl ock rul e “ merely b inds the pa rties

. . . to the original judgme nt a nd promotes judicial economy by fo rcing a losing party to follow the or dinary appeals process [] rather tha n reli tigating the advers e fact f indings i n a new law suit

. ” 921 S. W.2d at 208

.7 The trial court ’ s judgment ordered that Britton ta ke nothing and awarded t o Laughlin $12, 921. 50 4 in “ [r] ea sonable and necessary attorne y ’ s fees . . . for defend ing

t his case through this judgment, ” court costs, post

- judgment interest, and the
f

ol lowing additional conditional attorney ’ s fees:

• $6,000 if Laug hlin prevailed in any post

- judgment motion s in the tr ia l court , along with post

- judg ment in terest on that award ;

• $15,000 if Laughlin had to apply for any writs or e ngage in other collection eff or ts , along with post

- jud gment interest on that award;

• $19,500 if Laughlin prevailed on an appeal t o t he intermediate court of appeal s, along with post

- judgment interest on that award;

• $37,000 if Laughlin prevailed on an appeal to the supreme court, along wi th post

judgment interest on that award. Britton complains in her motion f or rehe arin g that she might end up owing $ 8 4,721.50 in attorney ’ s fees “ for filing a suit that ultimately resulted in the payment
of a debt [she] alleged was not being made. ” Laugh li n responded to B ritton ’ s motion by arguing that sh e had faile d to preserve the attorney ’ s

- fe e issue because she did not directly challenge i t in her opening brie f and that the fact that he paid the Bank of America debt during the

4 Lau ghlin ’ s attorney attached an affidav it for attorney ’ s fees through summary judgment of $7 , 950 and est imated that Laughlin would incur an additional $4 ,575 in attorney ’ s fee s , for a total of $12,525 , not th e $12 ,9 21.50 awarded in the trial court ’ s jud gm ent.8 pendency of the appeal “ [ d id ] not render the trial court ’ s judgm ent in favor of Laughlin o n his res judicata defense er roneous . ” While we agree that Britton did not expressly challenge t he attorney ’ s

- fee award in her op ening brief, in her prayer for relief, she asked for “ the cas e [t o ] be reversed

an d remanded for retrial. ” Because the supreme court has instructed us to “ liberally

con strue issues presented to obtain a just , f air, and equitable adjudication of the rights of the litigants, ” Kachina Pipeline Co. v. Lillis , 471 S.W .3d 445, 455 (Tex. 2015) (op. on
reh ’ g) , and because Laughlin paid off the Bank of America debt during the pendency of the appea l to remove Britton ’ s arguable issue, we think the attorney ’ s

- fee issue on rehe aring is fairly before us

. T he trial court s houl d re consider the appropriate amount of at torney ’ s fees now due under t he parties ’ contract. See id. (“Kachina may be correct that there remain grounds on which a trial court may award fees. B ut because we decide Kachina did not prevail on two of the prim ary issues in dispute, we remand
the is su e to determine the appropriat e award of costs and fees.”) ; see also Carowest Land, Ltd. v. City of New Braunfels , 61 5 S.W.3d 156, 157

– 59 (Tex. 2020) (op. on reh ’ g)

. 5

5 T he supreme court recen tly remanded a case in the interest of justice when an intermediate court of appeals essentially pulled the rug out from under the appellant in its conflicting resolution o f interl ocuto ry and final

- o rder appeals. Carowest , 6 15 S.W.3d at 15 7

– 59. During th e interlocutory appeal, the intermediate court held that the plaintiff ’ s claims were not barred by governmental immunity , but in a final judgment a fter a jury trial (and so me inter venin g case law), it held that the claims wer e barred by governme ntal immuni ty after all. Id. We think paying a disputed debt during the pendency of an appeal to remove the arguable issue and leave an appellant on the hoo k for attorney ’ s fees (an d th us m anipu la te the intermediate appellate court in to preserving the attorney ’ s

- fe e award ) may be Carowest ’ s functional equivalent

.9 I I I . Conclusion
W e vacate t he portion of t he trial court ’s ju dg ment that applies to Britton ’s

now

- mo ot Bank of America claim , affi r m the portion of the judgment pertaining to res judicata, reverse the attorney ’ s

- fee award, and remand the case to the trial court for
a redetermination of a re a sona bl e and app ropriate amount of attorney ’ s fees and costs
in li ght of the mooted Bank of Ame rica c laim and in the interest of justice. See Tex.
R . App. P. 43.6 (stating that “[t]he court of appeals may make any other appropriate
order that the law and the nat ure of th e cas e r equire ” ). /s/ Wade Birdwell
Wade B irdw ell Justice
Delive re d: November 10, 2021