COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-352-CV
NATIONAL CITY MORTGAGE COMPANY APPELLANT
V.
CAROLYN A. ADAMS APPELLEE
------------
FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
------------
OPINION ON REHEARING
------------
I. Introduction
In one issue, Appellant National City Mortgage Company (“NCM”) asserts
that the trial court erred by failing to enter a judgment awarding NCM its
attorneys’ fees. While we deny NCM’s motion for rehearing, we withdraw our
earlier opinion and judgment of February 25, 2010, and substitute the
following. We affirm.
II. Factual and Procedural History
In March 2003, Appellee Carolyn A. Adams contracted with Steve
Paulsen Properties, Ltd. for the construction of a new home. In April 2003, she
obtained financing for the construction through NCM, executing a
Construction/Permanent Loan Agreement (the “Loan Agreement”), a Promissory
Note (the “Note”) in the amount of $202,800, and a Disbursement
Authorization form, which allowed NCM to disburse funds to Paulsen upon
NCM’s receipt of either a written or verbal draw request from Paulsen or
Carolyn.
On September 12, 2003, Carolyn’s son, Murray Adams, met with Paulsen
to discuss the completion date of Carolyn’s house. During the conversation,
Paulsen advised Murray that there had been some delays but that he intended
to personally supervise the job from that point on. Two days later, during a
telephone conversation with Paulsen, Murray claimed that Paulsen quit the job
and told Murray to contact a lawyer. Paulsen, on the other hand, claimed that
he only told Murray that he was not going to complete the job because Murray
had threatened to kill him.
On September 15, 2003, Murray called NCM’s home office in Ohio and
spoke with Charles Dixon about Paulsen quitting the job. Dixon allegedly
confirmed that there were no draws pending at that time and that NCM would
2
no longer honor Paulsen’s draw requests. Dixon also instructed Murray to have
Carolyn contact NCM’s Southlake office and inform someone there that Paulsen
had quit the job. The next morning, Carolyn called the Southlake office and
spoke with Bonnie Doran, the district manager. Carolyn informed Doran that
Paulsen had quit the job and that NCM should no longer honor Paulsen’s draw
requests.
On September 17, 2003, Paulsen submitted a request for disbursement
to NCM in the amount of $33,320. On September 18, 2003, Larry Bracken,
Carolyn’s attorney, faxed a letter to Paulsen and to NCM’s Southlake office
instructing NCM that no more payments were to be made to Paulsen and
requesting that Paulsen or another builder complete the construction by October
14, 2003, or that other accommodations be made. On that same day, NCM
paid Paulsen the $33,320 he had requested the day before.
Subsequently, Carolyn sued NCM for declaratory relief, breach of
contract, deceptive trade practices, conspiracy, common law unreasonable
collection efforts, and violation of the Texas Debt Collection Practices Act
(“TDCPA”). NCM filed a counter-claim for contractual indemnity. At trial, the
only claims against NCM submitted to the jury were breach of contract and
purported violations of the TDCPA.
3
After a trial on the merits, the jury found that: (1) NCM did not breach
the Loan Agreement with Carolyn, (2) NCM did not violate the TDCPA, and (3)
Carolyn was not entitled to attorney’s fees against NCM. The jury also found
that a reasonable and necessary fee for the services of NCM’s attorneys was
$174,500.
On March 7, 2008, NCM and Paulsen filed a joint motion for entry of
judgment consistent with the jury’s verdict. Thereafter, Carolyn filed a motion
for judgment notwithstanding the verdict (“JNOV”) and a response and
objection to NCM and Paulsen’s motion for entry of judgment. In her motion,
Carolyn asserted ten grounds on which the trial court should disregard the
jury’s verdict and enter a take nothing judgment. Of those ten grounds, only
four were applicable to NCM: 1) the jury’s answer to jury question number
one 1 should be disregarded because the answer “yes” was marked out and “no”
was written beside it with scribbled initials; 2) the jury’s answer to jury
question number twenty 2 should be disregarded because jury question number
one was conflicting, incomplete, and unresponsive; 3) the jury’s answer to jury
1
Jury question number one asked, “Did [NCM] fail to comply with
terms of the Construction/Permanent Loan Agreement?”
2
Jury question number twenty asked, “What is a reasonable fee for the
necessary services of [NCM’s] attorneys in this case, stated in dollars and
cents?”
4
question number twenty should be disregarded because there was legally and
factually insufficient evidence to warrant the submission of question number
twenty; and 4) the jury’s answers to jury questions one through twenty should
be disregarded because the trial court erroneously instructed the jury concerning
the dollar amount of Carolyn’s contractual damage claim; thereby, commenting
on the weight of the evidence.
On June 5, 2008, the trial court entered a judgment that all parties take
nothing by way of their claims, with court costs to be taxed against Carolyn.
One week later, the trial court entered an order denying NCM and Paulsen’s
joint motion for entry of judgment. Subsequently, NCM filed a motion to alter,
modify, or amend judgment, arguing that, as a matter of law, NCM was entitled
to recover all of its attorneys’ fees. NCM’s motion was overruled by operation
of law. See Tex. R. Civ. P. 329b(c). This appeal followed.
III. Discussion
In its sole issue, NCM argues that the trial court abused its discretion
because the award of attorneys’ fees to NCM was mandatory under the Loan
Agreement and Texas law. In response, Carolyn asserts that this court must
affirm the trial court’s denial of attorneys’ fees because NCM appeals from a
JNOV and NCM failed to challenge all the grounds upon which the trial court
5
could have entered a JNOV. This case, however, is procedurally awkward in
that it does not fit within the traditional standard of review for JNOV. 3
Here, NCM does not challenge the trial court’s setting aside of the jury
verdict and entering a judgment in conflict with that verdict—a challenge
requiring this court to look at the jury’s findings. Instead, NCM complains
about the trial court’s failure to determine, as a matter of law, that NCM was
entitled to attorneys’ fees—a legal issue, requiring no inquiry into the jury’s
findings. See Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex. 1999)
(holding that the determination of whether attorneys’ fees are available in a
particular case is a question of law, which is reviewed by this court under the
de novo standard). Thus, the JNOV standard is inapplicable.
A trial court’s determination of whether to award attorneys’ fees is
reviewed for abuse of discretion. See Armstrong v. Steppes Apartments, Ltd.,
57 S.W.3d 37, 50 (Tex. App.—Fort Worth 2001, pet. denied), cert. denied,
3
A trial court may disregard a jury verdict and render judgment
notwithstanding the verdict (“JNOV”) if no evidence supports the jury’s findings
on issues necessary to liability or if a directed verdict would have been proper.
See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003);
Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.
1991). In determining whether the trial court erred by rendering a JNOV, we
view the evidence in the light most favorable to the verdict under the well-
settled standards that govern legal sufficiency review. See Wal-Mart Stores,
Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).
6
536 U.S. 951 (2002). To determine whether a trial court abused its discretion,
we must decide whether the trial court acted without reference to any guiding
rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007);
Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial court has no
discretion in determining what the law is or applying the law to the facts.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court’s erroneous
legal conclusion, even in an unsettled area of law, is an abuse of discretion.
Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding); Huie v.
DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996) (orig. proceeding).
Generally, a party may not recover attorneys’ fees unless such an award
is authorized by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 311 (Tex. 2006); GXG, Inc. v. Texacal Oil & Gas, 977 S.W.2d
403, 424 (Tex. App.—Corpus Christi 1998, pet. denied). NCM asserts that the
Loan Agreement between itself and Carolyn is a contract that contains language
making the award of attorneys’ fees to NCM mandatory. The language at issue
provides:
(xvii) That [NCM] will be reimbursed for all expenses of any
kind, including without limitation attorney’s fees, that
7
may be incurred by [NCM] in connection with or arising
out of this agreement . . . 4
(xviii) [CAROLYN] AGREES THAT [NCM] AND ITS AGENTS
AND ATTORNEYS WILL BE INDEMNIFIED AND HELD
HARMLESS FROM ANY AND ALL ACTIONS, CLAIMS,
DEMANDS, DAMAGES, COSTS, EXPENSES, AND
O T H ER LIA B ILIT IE S , IN C L U D IN G W IT H O U T
4
Although the record reflects that NCM used language from this
reimbursement provision in its petition, NCM did not plead reimbursement of its
attorneys’ fees but, instead, pleaded contractual indemnity. Specifically, NCM
pleaded
COUNT 1-CONTRACTUAL INDEMNITY
9. NCM incorporates paragraphs 1 through 8 as is set forth herein
fully verbatim. [Paragraphs 1 through 8 set forth the factual and
procedural background of the case.]
10. Adams agreed to indemnify and hold NCM harmless from any
and all claims arising out of the Loan Agreement. The claims which
are the subject matter of this lawsuit arise out of the Loan
Agreement. NCM has been forced to incur attorney[s’] fees, costs,
and other expenses to defend this lawsuit.
11. Adams’s conduct has, therefore, proximately caused damage
to NCM in an amount in excess of the minimum jurisdictional limit
of the Court.
NCM concluded by asking the trial court to enter a judgment in its favor for,
among other things, reasonable and necessary attorneys’ fees. Because NCM
pleaded only contractual indemnity for its attorneys’ fees, it is not entitled to
an award of attorneys’ fees under the Loan Agreement’s reimbursement
provision. See Smith v. Deneve, 285 S.W.3d 904, 916 (Tex. App.—Dallas
2009, no pet.) (“[W]hen a party pleads a specific ground for recovery of
attorney’s fees, the party is limited to that ground and cannot recover
attorney’s fees on another, unpleaded ground.”).
8
LIMITATION ATTORNEY’S FEES, THAT ANY SUCH
PARTIES MAY INCUR OR THAT IN ANY WAY RELATE
TO OR ARISE OUT OF THE CONSTRUCTION OF THE
IMPROVEMENTS, INCLUDING WITHOUT LIMITATION
THOSE ARISING OUT OF THE NEGLIGENCE OF
[NCM]. 5 [Emphasis in original.]
When, as here, we construe a written contract, we “ascertain the true
intent of the parties as expressed in the instrument.” See Nat’l Union Fire Ins.
Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). In deciding
whether a contract is ambiguous, we consider the written instrument as a
whole and determine if it is subject to more than one reasonable interpretation
in light of the circumstances present at the time of its formation. Grain Dealers
Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997). If the contract
can be given a certain or definite legal meaning, it is not ambiguous and should
be construed as a matter of law. Id.; CBI Indus., 907 S.W.2d at 520.
The provision of the Loan Agreement under (xviii) is clearly one of
indemnity, and neither party argues otherwise. An indemnity agreement arises
from a promise by the indemnitor to safeguard or hold harmless the indemnitee
against existing or future loss, liability, or both. See Dresser Indus., Inc. v.
Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993), rev’d on other
5
For convenience, we have substituted “NCM” for “Lender” and
“Carolyn” for “Borrower” in the quoted version of the Loan Agreement’s
provision.
9
grounds, 853 S.W.2d 505 (Tex. 1993); Wallerstein v. Spirt, 8 S.W.3d 774,
779 (Tex. App.—Austin 1999, no pet.); Derr Constr. Co. v. City of Houston,
846 S.W.2d 854, 858 (Tex. App.— Houston [14th Dist.] 1992, no writ). Such
is the plain intent of the quoted language of the Loan Agreement.
That being said, a defining characteristic of an indemnity agreement is
that it “does not apply to claims between the parties to the agreement.”
Wallerstein, 8 S.W.3d at 780 (citing Derr Constr., 846 S.W.2d at 858). “[A]
contract of indemnity does not relate to liability claims between the parties to
the agreement but, of necessity, obligates the indemnitor to protect the
indemnitee against liability claims of persons not a party to the agreement.”
Dresser Indus., Inc., 821 S.W.2d at 362–63.
Thus, because both NCM and Carolyn are parties to the indemnity
agreement, the agreement, as a matter of law, does not obligate Carolyn to pay
NCM its attorneys’ fees incurred in defending itself against Carolyn’s claims and
in prosecuting its counterclaim against Carolyn. See MRO Southwest, Inc. v.
Target Corp., 2007 WL 4403912, at *3 (Tex. App.—San Antonio Dec.19,
2007, pet. denied) (mem. op., not designated for publication) (holding
defendant could not recover attorneys’ fees incurred in defending the suit based
on indemnity provision because the provision did not apply to claims between
the parties to the agreement); see also Baird v. Lease Acquisition Partners, Inc.,
10
No. 03-99-00773-CV, 2000 WL 1508263, at *4 (Tex. App.—Austin Oct. 12,
2000, no pet.) (not designated for publication) (concluding the same based on
similar indemnity provision). Consequently, the trial court did not abuse its
discretion by refusing to award NCM its attorneys’ fees under the Loan
Agreement and Texas law. Accordingly, we overrule NCM’s sole issue.
IV. Conclusion
Having overruled NCM’s sole issue, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.
DELIVERED: March 25, 2010
11