Gloria Williams v. Richard Alford, M.D.

Williams v. Alford

IN THE

TENTH COURT OF APPEALS

No. 10-96-099-CV

     GLORIA WILLIAMS,

                                                                                              Appellant

     v.

     RICHARD ALFORD, M.D.,

                                                                                              Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 41,245

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      Gloria Williams appeals from a take-nothing judgment rendered in favor of Dr. Richard Alford on February 12, 1996. On August 1, 1996, Williams filed a motion to dismiss her appeal. In the relevant portion, Rule 59(a) provides:

(1) The appellate court may finally dispose of an appeal or writ of error as follows:

(A) In accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties; provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.

Tex. R. App. P. 59(a).

      Williams has certified that she served the motion on Alford, who seeks no affirmative relief in this court. The transcript for this appeal has been filed. Id.

      Pursuant to the motion, the cause is dismissed.

                                                                               PER CURIAM

Before   Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Dismissed on appellant's motion

Opinion issued and filed August 14, 1996

Do not publish

Climer, Kathy Coleman

and Denise Villatoro,

 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Appellees

 

 

 

From the 11th District Court

Harris County, Texas

Trial Court # 00-10246

 

MEMORANDUM  Opinion

 

          The Williamsons appeal the trial court’s judgment awarding attorney’s fees to Re/Max Fry Road Realtors, Dale Climer, and Denise Villatoro (“Re/Max”).  Finding that the trial court erred in awarding attorney’s fees, we will reverse the award.

BACKGROUND

          The Williamsons contracted with Re/Max to represent them in a home purchase.  The Williamsons entered into an earnest money contract offering to purchase a home owned by the Guynes.  The Williamsons sued the Guynes, Re/Max, Coldwell Bankers, and other realtors.  The case was tried before a jury, which found for the defendants.  Re/Max filed a motion for attorney’s fees.  The trial court granted the motion and awarded $32,781 in attorney’s fees.

          Attorney’s fees are not recoverable unless provided for by statute or contract between the parties.  Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996).  Re/Max argues that they are entitled to recover attorney’s fees based upon a provision in the earnest money contract that states:  “The prevailing party in any legal proceeding brought under or with respect to the transaction described in this contract is entitled to recover from the non-prevailing party all costs of such proceeding and reasonable attorney’s fees.”  The Williamsons argue that the contract defines “parties” as the buyer (the Williamsons) and the seller (the Guynes).  Re/Max was not listed as a party to the contract and did not sign the contract.

          The issue is thus whether the term “party” in the attorney’s fees provision is limited to the parties identified and defined by the contract or whether the term includes persons who were not parties to the contract but who were parties in the legal proceeding.  The only parties identified in the contract are the buyers and the sellers.  In determining intent, we presume that the parties contracted only for themselves and not for the benefit of third parties, unless the obligation to the third party is clearly and fully spelled out.  Corpus Christi Bank & Trust v. Smith, 525 S.W.2d 501, 503-4 (Tex. 1975).  We find nothing in the contract to suggest that the parties included the attorney’s fees provision for the benefit of persons other than the parties to the contract.  There is nothing in the contract suggesting the buyer and seller intended the word “party” in the attorney’s fees provision to include non-parties to the contract.  The provision is intended to create a mutual obligation: whichever party loses pays the other party’s attorney’s fees.  There is no evidence that the buyer and seller intended to also unilaterally obligate themselves to pay attorney’s fees to persons who, because they were not parties to the contract, would not themselves be obligated under the provision.  Absent evidence of such intent, the term “party” should be defined by the terms of the contract itself, which identifies only the buyer and seller as parties.  Thus we hold that Re/Max was not entitled to recover attorney’s fees under the earnest money contract.  We sustain the issue.

CONCLUSION

          We reverse the trial court’s judgment in part.  We reverse the award of attorney’s fees to Re/Max and render judgment that Re/Max recover no attorney’s fees.  The remainder of the judgment is affirmed.  Costs of the appeal are assessed against Re/Max.

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed in part, reversed and rendered in part

Opinion delivered and filed March 23, 2005

[CV06]