Stephanie Jones v. Guildford LLC D/B/A Keller Williams Realty and Jeremy Wages

AFFIRMED; and Opinion Filed December 11, 2023

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01252-CV

STEPHANIE JONES, Appellant
V.
GUILDFORD LLC D/B/A KELLER WILLIAMS REALTY AND JEREMY
WAGES, Appellees

On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-03696-2019

MEMORANDUM OPINION
Before Chief Justice Burns and Justices Carlyle and Kennedy
Opinion by Chief Justice Burns

Stephanie Jones appeals the trial court’s final judgment in this action, which

she initiated against her former real estate brokers, appellees Guildford LLC d/b/a

Keller Williams Realty (Keller Williams) and Jeremy Wages. In five issues, Jones

asserts that the trial court erred in granting appellees’ summary judgment motions

and dismissing her claims against appellees, ordering that appellees recover $20,400

in actual damages on their counterclaim against Jones, and awarding appellees

attorneys’ fees. For the following reasons, we affirm.
 Background

Jones and appellees entered into a residential listing agreement, which granted

appellees the exclusive right to sell Jones’s home (the property) in McKinney, Texas.

Wages served as Jones’s sales agent. Per the listing agreement, which ran from May

25, 2015, to December 31, 2015, Jones instructed appellees to market the property

for $350,000 and agreed to pay appellees a commission of six percent of the sales

price once the commission was “earned” and became “payable.”

On July 11, Jones entered into an “as is” sales contract for the property with

Gurwinder Grewal and Permeet Kaur (buyers). Jones agreed to a sales price of

$340,000 and a closing date of August 10. The buyers elected to have the property

inspected and, following the inspection, requested that Jones complete several

repairs, including some to the roof, prior to closing. On July 20, the buyers’ agent

e-mailed a copy of a proposed repair amendment to Wages, who forwarded it to

Jones. Jones advised that she was “having second thoughts” about selling and

expressed concern that the repairs would “cost approximately $2000.” Wages

responded that the repairs would not be more than $1000. He also informed Jones

that the buyers had asked for another week to close. Jones replied that she was

“saying no to the repairs because [she] didn’t haggle on the price,” but agreed to

extend the closing.

On July 23, Jones asked Wages if he had heard back from the buyers’ agent

regarding the repairs. Wages advised that he was “covering” the roof repairs and

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the buyers were covering the rest. Jones responded, “Oh okay,” and the next day

she and the buyers executed an amendment to extend closing to August 19.

On July 26, Jones texted Wages that, due to a “change in [her] circumstance”

she had “decided it’s probably not a good time to sell [her] house.” Wages

responded, “[w]e don’t have the ability to terminate the buyer.” Jones advised that

she was going to contact her attorney because she was “not going to sell.” On July

28, Jones confirmed that she was not going through with the sale. Jones apologized

and explained that her financial situation had changed; she was no longer employed

and no longer had the option of living with the person with whom she planned to

live. Wages informed the buyer’s agent of Jones’s decision. The buyers sued Jones

for specific performance, ultimately accepting a payment in settlement.

Jones then brought this action against appellees. She alleged claims for breach

of contract, asserting the sales contract was not a valid, enforceable contract and that

appellees breached the listing agreement and/or sales contract, breach of fiduciary

duty, fraudulent inducement, and statutory fraud. Appellees filed an answer and

brought a counterclaim against Jones for breach of the listing agreement, seeking its

commission and attorneys’ fees.

Appellees filed a series of interlocutory summary judgment motions, which

the trial court granted. In its first order, the trial court rendered a declaratory

judgment that the sales contract was a valid and enforceable contract from July 11,

when the parties signed it, through August 19, when the transaction was set to close.

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In two subsequent orders, the trial court ruled in appellees’ favor on all of Jones’s

affirmative claims, dismissing the claims with prejudice and awarding appellees

attorneys’ fees incurred in defending against those claims and contingent

enforcement and appellate attorneys’ fees. Jones filed, and the trial court denied, a

motion for reconsideration of the order dismissing Jones’s claims.

Appellees then filed a summary judgment motion on their counterclaim for

Jones’s breach of the listing agreement. Jones also filed a summary judgment

motion on the counterclaim, which the trial court denied. The trial court made a

docket entry indicating that it was going to grant appellees’ summary judgment

motion and, thereafter, held a short bench trial on appellees’ request for attorneys’

fees related to the counterclaim. Jones filed a motion for reconsideration of the trial

court’s decision to grant the motion. The trial court did not rule on the motion, but

entered a final judgment incorporating its previous summary judgment orders,

formally granting summary judgment in favor of appellees on their counterclaim,

and awarding appellees $20,400 in actual damages. The trial court also awarded

appellees attorneys’ fees, including contingent enforcement and appellate attorneys’

fees, related to the prosecution of their counterclaim.

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 This appeal followed. Jones challenges the summary judgments in favor of

appellees on her affirmative claims for breach of fiduciary duty and breach of

contract and appellees’ counterclaim and the related attorneys’ fees awards.1

Standard of Review

We review a trial court’s decision to grant summary judgment de novo. See

Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017).

If the trial court grants summary judgment without specifying the grounds for the

ruling, we must affirm the judgment if any of the grounds on which judgment is

sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.

2013). If a party moves for summary judgment on both traditional and no-evidence

grounds, we generally address the no-evidence motion first. See id. If the challenge

to the no-evidence motion fails, we need not consider the traditional motion. Id.

A movant may obtain a no-evidence summary judgment, after adequate time

for discovery, when there is no evidence of one or more of the essential elements of

a claim on which an adverse party would have the burden of proof at trial. JLB

Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (citing TEX. R. CIV.

P. 166a(i)). When a no-evidence motion is properly filed, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact on each

challenged element. Id. We “review the evidence presented by the motion and

1
Although the trial court also granted summary judgment in favor of appellees on Jones’s claims for
fraudulent inducement and statutory fraud, she does not appeal the judgment with respect to those claims.
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response in the light most favorable to the party against whom the summary

judgment was rendered, crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (quoting Mack Trucks,

Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006)). We sustain a no-evidence

challenge when the evidence offered to prove a vital fact is no more than a mere

scintilla. See Merriman, 407 S.W.3d at 248. “When the evidence offered to prove

a vital fact is so weak as to do no more than create a mere surmise or suspicion of

its existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) (quoting Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

Under the traditional summary judgment standard, the movant has the burden

to show there is no genuine issue of material fact and it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Hansen, 525 S.W.3d at 681. When reviewing

a traditional summary judgment, we indulge every reasonable inference in favor of

the nonmovant, resolve any doubts in favor of the nonmovant, and take as true all

evidence favorable to the nonmovant. Hansen, 525 S.W.3d at 680.

A plaintiff moving for summary judgment must prove that it is entitled to

summary judgment as a matter of law on each element of its cause of action.

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

pet. denied). A defendant is entitled to summary judgment if it conclusively

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disproves at least one essential element of the plaintiff’s claim or conclusively

establishes each element of an affirmative defense. Ward v. Stanford, 443 S.W.3d

334, 342 (Tex. App.—Dallas 2014, pet. denied). Evidence is conclusive only if

reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168

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

Once the movant establishes its right to summary judgment as a matter of law,

the burden shifts to the nonmovant to present evidence raising a genuine issue of

material fact, thereby precluding summary judgment. See City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). A genuine issue of

material fact exists if the nonmovant produces more than a scintilla of probative

evidence regarding the challenged element. Ward, 443 S.W.3d at 342.

Appellees’ Claim for Breach of Listing Agreement

In her first issue, Jones contends the trial court erred in granting appellees’

traditional motion for summary judgment on appellees’ counterclaim for breach of

the listing agreement.2 Citing paragraph 15 of the listing agreement, Jones argues

that, because she terminated the listing agreement and did not sell the property to the

buyers within six months, she did not owe appellees a commission.

2
Jones also asserts that the trial court erred when it denied her motion for reconsideration of its
summary judgment ruling, but she does not address the denial other than to generally urge this Court to
consider the arguments and evidence submitted in the motion, which was on file before the trial court signed
the final judgment. Further, Jones’s argument on appeal differs from the grounds asserted in her motion
for reconsideration. To the extent she complains about the trial court’s order denying the motion for
reconsideration, she has waived the issue by failing to brief it and we will not address it. See TEX. R. APP.
P. 38.1(i); e.g., RTLC AG Prod., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 833 (Tex. App.—Dallas
2006, no pet.). Nor will we address the arguments she urged in the motion for reconsideration, but does
not urge on appeal.
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 To prevail on their counterclaim for breach of the listing agreement, appellees

had to prove (1) a valid contract, (2) performance or tendered performance by

appellees, (3) a breach by Jones, and (4) damages sustained by appellees as a result

of Jones’s breach. See 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 if

the facts of the parties’ conduct are undisputed or conclusively established.

Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (per curiam).

To establish they were entitled to summary judgment on their counterclaim,

appellees presented evidence that, pursuant to paragraph 5 of the listing agreement,

(1) they earned a commission by procuring the buyers, who were ready, willing and

able to buy the property at a price acceptable to Jones, (2) the commission became

payable when Jones refused to sell the property, and (3) Jones breached the

agreement by failing to pay that commission.

Paragraph 5 of the listing agreement provides for the seller to pay the broker

six percent of the sales price as compensation when the compensation is earned and

payable. Paragraph 5 defines earned and payable as follows:

B. Earned: Broker’s compensation is earned when any one of the
following occurs during this Listing:

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 (1) Seller sells, exchanges, options, agrees to sell, agrees
to exchange, or agrees to option the Property to anyone
at any price on any terms;

(2) Broker individually or in cooperation with another
broker procures a buyer ready, willing, and able to buy
the Property at the Listing Price or at any other price
acceptable to Seller; or

(3) Seller breaches this Listing.

C. Payable: Once earned, Broker’s compensation is payable either
during this Listing or after it ends at the earlier of:

(1) the closing and funding of any sale or exchange of all
or part of the Property;

(2) Seller’s refusal to sell the Property after Broker’s
compensation has been earned;

(3) Seller’s breach of this Listing; or

(4) at such time as otherwise set forth in this Listing.

The summary judgment evidence establishes that appellees earned a broker’s

compensation under the listing agreement when Wages procured the buyers, who

were ready, willing, and able to buy the property at a price acceptable to Jones. The

buyers and Jones entered into the “as is” sales contract. The trial court rendered a

declaratory judgment that the sales contract was a valid and enforceable contract,

and Jones does not challenge that judgment on appeal. The fact that the buyers

requested an amendment providing for Jones to pay for repairs neither rendered the

sales contract invalid nor serves as evidence that the buyers were not ready, willing,

and able to buy the property. See, e.g., Frady v. May, 23 S.W.3d 558, 565 (Tex.

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App.—Fort Worth 2000, pet. denied) (“If an enforceable contract results between

buyer and seller, the latter necessarily accepts the former’s readiness, willingness,

and ability to perform, in the absence of a special agreement to the contrary”).

Appellees’ broker’s compensation became payable under paragraph 5(C) when

Jones refused to sell the property to the buyers, but Jones never paid appellees that

compensation.

Jones, however, contends that paragraph 15, instead of paragraph 5, applies

in this case. Paragraph 15 provides:

*Either party can terminate the listing if they are unhappy. The
Termination of Listing only requires the party canceling, the Seller(s)
or the Agent, to sign the paperwork. If the seller terminates the listing
agreement after a sales contract has been accepted and executed, . . .
Keller Williams, is due a commission if that buyer purchases the house
within 6 months of termination.

According to Jones, the summary judgment evidence established that she terminated

the listing agreement and appellees were not due a commission.3

Jones, however, failed to bring any evidence to the trial court’s attention in

her summary judgment response to raise a fact issue on her termination of the listing

3
Appellees respond that Jones has waived her argument by failing to first present it to the trial court.
A nonmovant, in writing to the trial court, must fairly apprise the movant and the trial court of each theory
the nonmovant contends should defeat a summary judgment motion. See TEX. R. CIV. P. 166a(c); FieldTurf
USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022); Shih v. Tamisiea, 306
S.W.3d 939, 944 (Tex. App.—Dallas 2010, no pet.). The nonmovant’s failure to expressly present those
theories in the trial court waives the issue on appeal. See FieldTurf USA, 642 S.W.3d at 838. We agree
that Jones’s response did not clearly present the theory she advances in this appeal. Her response simply
stated that she disputed whether she breached the listing agreement by failing to pay appellees’ commission
and referenced paragraph 15. The response made no further mention of paragraph 15; it did not set out any
argument or identify any summary judgment evidence supporting its application. However, because
Jones’s response at least directed the trial court to paragraph 15, we will consider Jones’s theory on appeal.

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agreement. On appeal, she directs this Court to her and Wages’s text messages “in

which Jones clearly stated that she no longer wished to sell her house.” But she

made no attempt in her summary judgment response to identify any particular text

messages to raise a fact issue on whether she terminated the listing agreement in

accordance with paragraph 15’s requirement that she “sign the paperwork.”4 Indeed,

the argument section of her response makes no mention of either paragraph 15 or

her termination of the listing agreement.5

“[A] party submitting summary judgment evidence ‘must specifically identify

the supporting proof on file that it seeks to have considered by the trial court.’”

Berryman’s S. Fork, Inc. v. J. Baxter Brinkmann Int’l Corp., 418 S.W.3d 172, 195

(Tex. App.—Dallas 2013, pet. denied) (quoting Bich Ngoc Nguyen v. Allstate Ins.

Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied)). Because Jones

did not raise a genuine issue of material fact to show that paragraph 15, and not

paragraph 5, controlled in this case, we conclude that she failed to satisfy her burden

on summary judgment. See, e.g., Townsend v. Hindes, 619 S.W.3d 763, 772 (Tex.

App.—San Antonio 2020, no pet.) (when Townsend’s response did not identify any

4
Jones notes that the text messages advising Wages that she no longer intended to sell her home were
attached to her response. She also directs this Court to her earlier-filed response to appellees’ summary
judgment motion for attorneys’ fees on her affirmative claims, which includes a statement that she
terminated the listing agreement in a July 24, 2015 communication to Wages. Her response to the summary
judgment motion on appellees’ counterclaim, however, did nothing to alert the trial court, or appellees, that
she was relying on any particular texts as evidence raising a fact issue on her termination of the listing
agreement.
5
Jones also did not raise her argument that paragraph 15 controlled whether appellees were entitled to
a commission in either her summary judgment motion on appellees’ counterclaim or her motion for
reconsideration of the summary judgment.
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summary judgment evidence supporting his assertion that an unidentified property

owner claimed not to be bound by a road use agreement, he failed to raise a genuine

issue of material fact on issue of legal access); Thompson v. Harco Nat. Ins. Co.,

120 S.W.3d 511, 515–16 (Tex. App.—Dallas 2003, pet. denied) (when appellant did

not inform trial court that cargo being transported at time of accident was ultimately

destined for Mexico in its motion for summary judgment or response to appellee’s

cross-motion, which argued truck was not engaged in interstate commerce, appellant

could not raise argument as ground for reversal on appeal).

We overrule Jones’s first issue.

Jones’s Claims for Breach of Fiduciary Duty and Contract

In her third issue, Jones asserts that the trial court erred in granting no-

evidence and traditional summary judgment on her affirmative claims for breach of

fiduciary duty and breach of contract and denying her related motion for

reconsideration.6 Jones complains of Wages’s conduct in taking “it upon himself to

attempt to salvage the transaction and earn his commission and not look out for

6
Again, Jones does not separately address, under the appropriate standard of review, the trial court’s
denial of her motion for reconsideration. Accordingly, she has waived our review of the issue. See TEX.
R. APP. P. 38.1(i); e.g., RTLC AG Prod., 195 S.W.3d at 833. Instead, she claims that we may consider any
evidence attached to the motion for reconsideration. A trial court “may consider evidence submitted with
a motion for reconsideration so long as it affirmatively indicates in the record that it accepted or considered
the evidence.” Circle X Land & Cattle Co. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 863 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied). Here, the trial court’s order makes no mention of the court
having considered evidence attached to Jones’s motion to reconsider, so Jones may not rely on the evidence
to challenge the trial court’s summary judgment order. See Di Angelo Publications, Inc. v. Kelley, No. 14-
20-00546-CV, 2022 WL 401561, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2022, no pet.) (mem.
op.).

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Jones’ best interest . . . after Jones told him that she was having second thoughts

about selling.” She contends that it is undisputed that appellees were fiduciaries, the

evidence established that they breached their fiduciary duty and the listing

agreement,7 and there was evidence that she was damaged by the breaches.

Appellees moved for a no-evidence summary judgment on the ground, among

others, that Jones had no evidence that she sustained damages as a result of any

breach of a fiduciary obligation owed to her by Wages or any breach of the listing

agreement. Thus, to avoid summary judgment on either claim, Jones was required

to present evidence raising a genuine issue of material fact on causation.8 See TEX.

R. CIV. P. 166a(i); Rogers v. Zanetti, 517 S.W.3d 123, 136 (Tex. App.—Dallas

7
According to Jones’s appellate brief, the evidence established that, or raised a genuine issue of
material fact as to whether, Wages breached his fiduciary duty to her by: (1) taking it upon himself to make
an offer to pay for the roof repairs and offer money to pay for other repairs when he knew that Jones did
not want to sell her house; (2) failing to tell Jones about his negotiations with the buyers’ agent to pay for
repairs and attempting “to go behind her back to avoid having her sign an amendment” to the sales contract;
(3) failing to advise her that the option period had expired on July 21 and she was under no obligation to
agree to any amendments so the buyers could only move forward with an “as is” sale at the original closing
date; (4) failing to respect Jones’s instructions regarding paying for repairs and instead “attempting to
effectively amend the [sales contract] by paying for the repairs himself in an attempt to ensure that he earned
a commission”; (5) failing to advise that Jones was under no obligation to extend the closing date and that
the sale contract would have terminated if the buyers did not close on time; (6) steering Jones to discuss the
situation with an attorney associated with Wages after she told Wages that she had consulted her attorney;
and (7) revealing that their real concern was “that another agent could scoop it up and sell it.” Jones asserts
that Wages’s attempt to pay for repairs without Jones’s knowledge or agreement, including “after Jones
terminated that agreement,” violated the listing agreement. The evidence she cites in support for all but
one alleged breach was attached to either her motion for reconsideration or was part of her later-filed motion
for reconsideration of the summary judgment on appellees’ counterclaim for breach of the listing
agreement.
8
A plaintiff may seek equitable remedies without having to establish that she suffered actual damages
for a breach of fiduciary duty. See Henry v. Notzon, No. 05-20-00994-CV, 2023 WL 4731274, at *9 (Tex.
App.—Dallas July 25, 2023, no pet.) (mem. op.) (citing First United Pentecostal Church of Beaumont v.
Parker, 514 S.W.3d 214, 222 (Tex. 2017), and Burrow v. Arce, 997 S.W.2d 229, 238, 240 (Tex. 1999)).
Jones, however, sought only actual damages.

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2015), aff’d, 518 S.W.3d 394 (Tex. 2017) (causation is an essential element of a

breach of fiduciary duty claim seeking actual damages as a remedy); Sandberg v.

STMicroelectronics, Inc., 600 S.W.3d 511, 528 (Tex. App.—Dallas 2020, pet.

denied) (“In an action for breach of contract, actual damages may be recovered when

loss is the natural, probable, and foreseeable consequence of the defendant’s

conduct.”) (citing Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 687 (Tex. 1981)).

In response to appellees’ summary judgment motion, Jones argued, without

citing to any specific evidence, that she “suffered emotional and financial damages

created by the actions of Wages. The damages model [she] provided . . . outlines

the damages created by Wages while acting as [Jones’s] agent without her

knowledge and/or authorization.” Jones did not attach evidence of damages to her

summary judgment response, but provided the following model in an interrogatory

response:

And, according to Jones’s response, absent Wages’s conduct in arranging for the

closing date to be extended and agreeing to pay for some of the repairs himself after

she told him she was having “second thoughts” and “without [her] authorization or

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consent,” the buyers “would have had to purchase the property ‘as is’ or walk away

from the deal.”

The evidence attached to Jones’s summary judgment response fails to raise a

genuine issue of material fact on whether any alleged damages resulted from a

breach by Wages. Although Jones shared that she was having second thoughts, she

thereafter agreed, and signed an amendment, to extend the closing date. She also

responded “okay” when Wages disclosed his plans to pay for the roof repairs. When

Jones first told Wages that she was not going to sell her house a few days later, she

explained that her decision was due to a change in her circumstances, specifically

that she was no longer employed and no longer had the option of living where she

had planned to live. Wages informed the buyers’ agent of her offer to terminate, but

they did not accept and, ultimately, sued.

The summary judgment evidence shows that Jones’s alleged damages arose

from her withdrawal from the sales contract for reasons unrelated to Wages’s closing

and repair negotiations. Accordingly, we conclude that Jones failed to raise a

genuine fact issue on whether her alleged damages resulted from either a breach of

fiduciary duty or breach of contract by appellees and the trial court properly granted

appellees’ no-evidence summary judgment motion.9

We overrule Jones’s third issue.

9
Having concluded that the trial court properly granted the no-evidence summary judgment, we need
not consider appellees’ traditional summary judgment motion. See Merriman, 407 S.W.3d at 248.
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 Attorneys’ Fees

In her second and fourth issues, Jones claims we must reverse the attorneys’

fees awards because appellees were not entitled to prevail, either on their

counterclaim or with respect to their defense against her affirmative claims, and

therefore could not recover fees pursuant to the listing agreement10 or under Chapter

38 of the Texas Civil Practices and Remedies Code. Having overruled Jones’s first

and third issues, we need not address this argument. See, e.g., Broyhill Furniture

Indus., Inc. v. Murphy, No. 05-11-01545-CV, 2013 WL 4478172, at *9 (Tex. App.—

Dallas Aug. 20, 2013, no pet.) (mem. op.).

In her fifth issue, Jones contends the evidence was legally and factually

insufficient to support the trial court’s award of conditional attorneys’ fees for

enforcement of the judgment and appeal. According to Jones, there was “no

indication of what hourly rates would be, what time would be spent on various

appellate tasks (e.g., reviewing the record, conducting legal research, preparing a

brief or petition for review).”

A party seeking attorneys’ fees bears the burden of proof and must provide

enough facts to support the reasonableness of the amount awarded. Yowell v.

Granite Operating Co., 620 S.W.3d 335, 354 (Tex. 2020). To recover fees for

10
The relevant paragraph in the listing agreement provides that, “[i]f Seller or Broker is a prevailing
party in any legal proceeding brought as a result of a dispute under this Listing or any transaction related
to or contemplated by this Listing, such party will be entitled to recover from the non-prevailing party all
costs of such proceeding and reasonable attorney’s fees.”

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contingent appellate services, a party must “provide opinion testimony about the

services it reasonably believes will be necessary to defend the appeal and a

reasonable hourly rate for those services.” Id. at 355. The same requirement applies

if a party is statutorily or contractually entitled to attorneys’ fees incurred for post-

appeal collection efforts. Vertical Holdings, LLC v. LocatorX, Inc., No. 05-22-

00720-CV, 2023 WL 5949023, at *7 (Tex. App.—Dallas Sept. 13, 2023, pet. filed)

(mem. op.).

In accordance with Yowell, the record contains expert evidence in the

affidavits of two of appellees’ attorneys. An affidavit by E. Jason Billick identified

the partner and associate rates being charged for the legal services provided in

connection with the claims brought by Jones against appellees, and Billick averred

that the rates were discounted and reasonable for that work. Billick also identified

the specific efforts that would be required both for collection of the judgment (post-

judgment discovery, depositions, and seeking a turnover order) and further appeal

(briefing and, if requested, oral argument in the court of appeals; in the supreme

court, briefing at the petition for review stage and on the merits and, if oral argument

is granted, preparation for argument and argument). Billick’s affidavit set out the

reasonable and necessary attorneys’ fees for the collection efforts and each stage of

appeal. Rachel L. McKenna provided the same information with respect to the legal

services provided in prosecuting appellees’ counterclaim against Jones.

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 The affidavits provided sufficient evidence of both the services appellees

reasonably believed would be necessary for collecting judgment and defending the

appeal and a reasonable hourly rate for those services. See, e.g., Bennett v. Zucker,

No. 05-19-01445-CV, 2021 WL 3701365, at *12 (Tex. App.—Dallas Aug. 20, 2021,

pet. denied) (mem. op.) (counsel’s testimony to “a reasonable ‘blended’ hourly rate,

considering his normal billing rate and the rates [of] other lawyers in the firm with

less experience, and a ‘reasonable amount of time’ for each level of appeal”

sufficient to support the trial court’s award of trial and appellate attorneys’ fees).

Accordingly, we conclude there is legally and factually sufficient evidence to

support the trial court’s attorneys’ fees awards.

We overrule Jones’s second, fourth, and fifth issues.

Conclusion

We affirm the trial court’s judgment.

221252f.p05
/Robert D. Burns, III//
ROBERT D. BURNS, III
CHIEF JUSTICE

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

STEPHANIE JONES, Appellant On Appeal from the 471st Judicial District
Court, Collin County, Texas
No. 05-22-01252-CV V. Trial Court Cause No. 471-03696-2019.
Opinion delivered by Chief Justice Burns.
GUILDFORD LLC D/B/A KELLER Justices Carlyle and Kennedy participating.
WILLIAMS REALTY AND JEREMY
WAGES, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellees GUILDFORD LLC D/B/A KELLER WILLIAMS
REALTY AND JEREMY WAGES recover their costs of this appeal from appellant STEPHANIE
JONES.

Judgment entered this 11th day of December, 2023.

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