Richard D. Davis L.L.P., a Nevada Limited Liability Partnership, and Richard D. Davis, L.L.P., a Texas General Partnership v. Andy Knott, Bill Green, Dempsey Gearen, Jim Phillips, Phil Birkelbach, Paul Kates, Danny Langhorne, Hans Van Der Voort, Gene Morton, and Stanley Hoffpauir ( 2023 )

Appellees’ Motion for Rehearing Granted; Appellants’ Motion for Rehearing
Denied; Affirmed as Modified and Substitute Memorandum Opinion filed
June 1, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00303-CV
RICHARD D. DAVIS L.L.P., A NEVADA LIMITED LIABILITY
PARTNERSHIP, AND RICHARD D. DAVIS, L.L.P., A TEXAS GENERAL
PARTNERSHIP, Appellants
V.
ANDY KNOTT, BILL GREEN, DEMPSEY GEAREN, JIM PHILLIPS,
PHIL BIRKELBACH, PAUL KATES, DANNY LANGHORNE, HANS VAN
DER VOORT, GENE MORTON, AND STANLEY HOFFPAUIR, Appellees
On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 08-12-19600
SUBSTITUTE MEMORANDUM OPINION
We issued our original opinion in this case on March 2, 2023. Appellee Bill
Green filed a motion for rehearing, informing us that he waives his rights to any
additional appellate attorney’s fees on remand.
Appellants Richard D. Davis L.L.P., A Nevada Limited Liability
Partnership, and Richard D. Davis, L.L.P., A Texas General Partnership (“the
Davis Parties”) filed their own motion for rehearing and motion for extension of
time to file their motion for rehearing. We grant Green’s motion for rehearing,
deny the Davis Parties’ motion for rehearing, withdraw our previous opinion,
vacate our previous judgment, and issue this substitute opinion and judgment.
Appellants challenge the clarifying order the trial court issued in favor of
appellees Andy Knott, Bill Green, Dempsey Gearen, Jim Phillips, Phil Birkelbach,
Paul Kates, Danny Langhorne, Hans Van Der Voort, Gene Morton, and Stanley
Hoffpauir (“the Green Parties”). In seven issues, the Davis Parties argue that: (1)
the Green Parties waived their appellate fees; (2) the Davis Parties pursued a
“successful appeal” in the prior appeal to our court; (3) the Green Parties pursued
an “unsuccessful appeal” in the prior appeal to our court; (4) alternatively, both
parties were partly successful and partly unsuccessful and the parties’ appellate
fees should be offset; (5) our prior opinion remanding the case to the trial court
was a general remand, not a limited remand; (6) the Davis Parties were entitled to
pursue their supplemental claims after the remand; and (7) the trial court’s
clarifying order was not a final judgment because it did not dispose of the Davis
Parties’ claims and counterclaims in their sixth amended counterclaim, which was
filed after the remand. Because appellees—through Green’s motion for
rehearing—have now waived their right to any additional attorney’s appellate fees,
we modify the judgment to delete the award of conditional appellate fees awarded
to the Green Parties pertaining to the appeal to our court, and affirm the judgment
of the trial court as modified.
2
I. BACKGROUND 1 0F
In December 2008, the Green Parties sued the Davis Parties, seeking, in
relevant part, declaratory and injunctive relief that would (1) allow the Green
Parties to access and repair the Sky Dive Houston Airport in Waller, Texas, to
which the Green Parties held a right-of-way easement and (2) enjoin certain of the
Davis Parties’ use of the airport and airstrip. The Green Parties, as property owners
and residents in the Sky Lake Subdivision in Waller County, alleged that the
skydiving operations at the airport had increased and that the increase in skydiving
unreasonably interfered with the ability of others to use the airstrip. The Davis
Parties filed counterclaims and a third-party action, which were severed from the
Green Parties’ claims.
In 2014, the Green Parties moved for partial summary judgment, requesting
that the trial court issue declaratory judgments in regard to their real property
rights. The trial court signed an order granting their motion for partial summary
judgment. Among other declarations concerning the parties’ rights and obligations
related to the airstrip, the summary judgment also noted that the trial court “finds
and orders the following”:
K. [The Green Parties] have the right of access to the Airport for
aviation purposes;
L. [The Green Parties] have the right to inspect the Airport for
aviation purposes;
M. [The Green Parties] have the right to maintain the Airport for
aviation purposes;
N. [The Green Parties] have the right to repair the Airport for
1
Because the parties are familiar with the facts of the case and the procedural history, we
recite only the facts of the case necessary to advise the parties of the court’s decision and the
basic reasons for it in light of the issues raised. See Tex. R. App. P. 47.1, 47.4.
3
aviation purposes;
O. [The Green Parties] have the right to improve the Airport for
use of the Airport for aviation purposes;
...
Q. [The Davis Parties] and [their] partners, agents, representatives,
successors, grantees, assignees, lessees and licensees have no
right to interfere with Plaintiffs [sic] use of and benefit from the
Airport for aviation purposes;
...
S. [The Davis Parties] and [their] partners, agents, representatives,
successors, grantees, assignees, lessees and licensees have no
right to use the Airport for any purpose other than aviation
purposes.
...
U. [The Davis Parties] and [their] partners, agents, representatives,
successors, grantees, assignees, lessees and licensees have no
right to use the Airport for residential purposes.
In January 2017, a jury trial was conducted to determine the amount of
attorney’s fees owed to the Green Parties and to litigate the Davis Parties’
counterclaims and requests for declaratory relief. The jury returned a verdict in
favor of the Green Parties, finding that the Davis Parties were not entitled to
recover on their counterclaims and that the Davis Parties did not obtain any
property rights via prescription. The Davis Parties filed a motion to disregard the
jury findings. On January 10, 2017, the trial court issued a final judgment, which
included the same rights and declaratory relief as requested by the Green Parties in
their partial summary judgment, but the final judgment also included the
following:
11. The Court finds that the following declaratory relief requested
4
by the Defendants is granted:
A. The Plaintiffs and Counter-Defendants, as lot owners in
either Sky Lakes Addition Section I or Sky Lakes
Additions Section II, have no rights to use the airstrip in
question in this case unless they pay a reasonable
maintenance fee for the use of same or unless Plaintiffs
complete all maintenance and repairs, deferred or future,
on the Airstrip and facilities dedicated to their use as lot
owners in the 1976 Amendment to the Deed Restrictions
and Restrictive Covenants binding on Sky Lakes
Addition Sections I and II lot owners.
B. The Davis Partnerships, and their partners’ use of the Sky
Dive Houston Airport and its airstrip for sky diving is in
conformity with Federal Aviation Administration
("FAA") Regulations and does not unreasonably interfere
with the rights of any lot owners in Sky Lakes Addition
Section I or Sky Lakes Addition Section II to use the
airstrip as allowed by any restrictions or dedications in
force or effect which are currently binding on the
property.
C. The use of the airstrip and airport property for skydiving
purposes is a lawful aviation use of the airspace over the
airstrip and airport owned by Davis Nevada Limited
Liability Partnership and is a use for aviation purposes of
the premises which does not unreasonably interfere with
any other aviation use of the airstrip. Plaintiffs and
Counter-Defendants, as individuals, have no power to
regulate or dictate the manner in which a lawful aviation
use is conducted on the airstrip or airport. The
restrictions as written do not prohibit the aviation use of
skydiving. Plaintiffs and Counter-Defendants have no
superior aviation rights to the airstrip, but must share the
airstrip in common with all other users including the
public users who are business invitees of the Davis
Defendants.
D. The use by the Davis Partnerships, and their partners, of
5
the Sky Dive Houston Airport and airstrip for sky diving
activities in conformity with FAA Regulations in the
manner proven before the jury in this case by testimony
and evidence does not constitute a substantial annoyance
to any lot owners or home owners in Sky Lakes Addition
Sections I and II.
E. The Davis Partnerships, and their partners’ use of the Sky
Dive Houston Airport and its airstrip does not
impermissibly “dominate” the Sky Dive Houston Airport
or airstrip in any manner nor violate any restrictions or
dedications which are in force and effect that define
and/or restrict the use of said airport and/or said airstrip.
F. The Plaintiffs’ claims concerning Defendants’ alleged
interference with their rights to use the 55-acre airport or
airstrip are barred by prescription.
G. Defendants, Suarez and the Davis Partnerships, are not
liable for any claims concerning the former operations of
Jump Out Express, L.L.C., the Davis Partnership’s prior
tenant, as a matter of law based on lease of airport
property.
H. The Davis Nevada Limited Liability Partnership as
owner of the Sky Dive Houston Airport and the airstrip
has the right to charge any lot owner in Sky Lakes
Addition Section I or Section II a maintenance and/or
upkeep fee for necessary maintenance and upkeep of the
airstrip.
I. The right of any lot owner in Sky Lakes Addition Section
I or II to taxi, take off, or land, on the airstrip at the Sky
Dive Houston airport is subject to payment of a
maintenance fee. Without payment of such maintenance
fee, any lot owners of Sky Lakes addition Sections I and
II have no right to use the Sky Dive Airport’s airstrip for
taxiing, landing, or taking off, in their aircraft.
J. The Davis Nevada Limited Liability Partnership as
6
owner of the Sky Dive Houston Airport and airstrip,
retains the right to promulgate and enforce reasonable
regulations, rules, and restrictions, for the management
and use of the Sky Dive Houston Airport and its airstrip.
All lot owners paying a maintenance and/or upkeep fee
and using the airstrip on the fifty-five acres must obey
such rules and regulations or face termination of their
rights to use the airstrip.
K. The Defendants and Counter-Plaintiffs hold the right to
maintain the airstrip located on the airport property and
are entitled to collect a reasonable maintenance and/or
upkeep fee from the Counter-Defendants which includes
costs of labor, management, and materials.
L. Any right that Plaintiffs and Counter-Defendants had to
prevent skydiving activities by Counter-Plaintiffs and
Defendants utilizing a Twin Otter Aircraft, operating at
full capacity or right to ban sky diving activities on the
airport property as an “unreasonable interference” with
the rights of lot owners to use the airport property or
airstrip for aviation purposes, or that skydiving harassed
and annoyed such lot owners while they were making
aviation use of the airport, airstrip, and/or its facilities,
was lost by Counter-Defendants under prescription.
Counter-Plaintiffs and Defendants used the airstrip and
airport to conduct skydiving activities with a Twin otter
Aircraft carrying and dumping 20 to 23 skydivers per
flight that landed on the airport and airstrip as an
approved drop zone under FAA regulations for a
continuous period of time from 1993, when R. D. Davis
Limited Liability Partnership, a Texas General
Partnership purchased the airstrip and airport, to at least
2007 - a period of time over ten (10) years. Counter-
Plaintiffs and Defendants’ use of the Twin otter aircraft
at full capacity was "open and obvious" to all lot owners
in Sky Lakes Addition Sections I and II as well as
notorious. The use of the airport for skydiving activities
by smaller aircraft was also "open and obvious" and went
on for more than ten consecutive years prior to the date
7
the Plaintiffs filed suit. The ten (10) years statute of
limitations bars any complaint by Counter-Defendants
that sky diving or the level, intensity, or number of
skydivers, violates any right they have to use the airstrip
in question.
M. The free use of the airport property and airstrip by nonlot
owners in free fly-ins conducted by any lot owners in
Sky Lakes Addition Sections I and II is a violation of the
Deed Restrictions and Restrictive Covenants applicable
to Sky Lakes Addition Sections I and II as well as a
breach of the restrictive covenants.
N. Neither the Davis Defendants nor the Plaintiffs may
unreasonably interfere with the use of the airstrip by any
lot owners in Sky Lakes Addition Sections I and II or by
the Davis Defendants or their tenants or business invitees
for aviation purposes.
O. The Davis Defendants have the right under the applicable
Deed Restrictions of Sky Lakes Addition Sections I and
II to charge a reasonable maintenance or upkeep fee to all
lot owners in Sky Lakes Addition Sections I and II for all
required maintenance on the airstrip.
Thus, the trial court disregarded the jury’s verdict and found that there was
evidence to support the Davis Parties’ prescription defense.
The trial court’s final judgment also recited that the Green Parties were
entitled to recover $125,000 in attorney’s fees from Richard Davis, LLP, a Nevada
Limited Liability Partnership, (“Davis Nevada”), because the trial court had
granted an Order for Partial Summary Judgement on December 9, 2015, in favor of
the Green Parties. Because the trial court also awarded Davis Nevada $22,500 in
attorney fees, it reduced the Green Parties attorney fee award to $102,500.
Additionally, the trial court granted—to both Davis Nevada and the Green
Parties—a conditional $25,000 if “any appeal . . . to the Texas Courts of Appeal
8
. . . is unsuccessful,” plus another conditional $15,000 if “any appeal . . . to the
Texas Supreme Court . . . is unsuccessful.”
In 2019, the Green Parties appealed certain subsections of section 11 of the
trial court’s final judgment and raised three issues on appeal, while the Davis
Parties raised four issues on cross-appeal; our court issued a substitute opinion in
December 2019. See Green v. Richard D. Davis, L.L.P., 593 S.W.3d 842, 845
(Tex. App.—Houston [14th Dist.] 2019, pet. denied). In their first issue, the Green
Parties asserted that the final judgment ignored the jury’s finding that skydiving
activities at the airport after March 21, 2008, unreasonably interfered with their
rights. Id. at 846. We overruled the first issue by concluding that the trial court’s
declarations were not inconsistent with the jury’s answers. 2 Id. at 847.
1F
2
The following excerpt from our court’s opinion regarding the prior appeal more fully
explains our resolution of the Green Parties’ first issue:
In their first issue, the Green Parties assert these four declarations ignore the jury's
finding that skydiving activities at the airport after March 21, 2008 unreasonably
interfered with their rights. The Green Parties acknowledge, as they did in the trial
court, that the skydiving activities at the airport substantially increased beginning
March 2008 when Jump Out Express began operating its skydiving business. The
Green Parties claim declaration 11.B. should state:
The Davis Partnerships, and their partners' use of the Sky Dive
Houston Airport and its airstrip for sky diving beginning March 8,
2008 unreasonably interfered with the rights of lot owners in Sky
Lakes Addition Section I or Sky Lakes Addition Section II to use
the airstrip.
As to declarations 11.C., 11.D., and 11.E., the Green Parties assert they should be
reversed and stricken from the judgment.
The Davis Parties argue the trial court correctly disregarded the jury's answer to
Question No. 2 because it was irrelevant since the Green Parties settled with Jump
Out Express before trial. The trial court declared, and the Green Parties do not
challenge, the trial court's finding in 11.G. as to the operations conducted by Jump
Out Express LLC:
[11.]G. Defendants, Suarez and the Davis Partnerships, are not
liable for any claims concerning the former operations of Jump Out
Express, L.L.C., the Davis Partnership's prior tenant, as a matter of
law based on lease of airport property.
9
In their second issue, the Green Parties challenged paragraphs F and L of the
final judgment, arguing that the trial court erred by declaring that the Green Parties
were barred by prescription from complaining about the skydiving activities. Our
court sustained the Green Parties’ second issue, observing that “the record reflects,
and the Davis Parties do not dispute, that the Davis Parties[’] use of the property
was not exclusive. Accordingly, there is no evidence of one of the elements
required to establish an easement by prescription.” Id. at 850.
In their third issue, the Green Parties challenged paragraphs A, H, I, J, K, M,
and O of the final judgment. Our court concluded that by failing to provide specific
argument and substantive legal analysis supported by record citations and
authority, the Green Parties’ issue concerning paragraph K was waived, and we
further concluded that the trial court’s declarations as to paragraphs A, I, and M
were supported by evidence in the record and thus overruled the Green Parties’
complaints as to those paragraphs. Id. But we sustained the challenges as to
paragraphs H, J, and O, concluding that these declarations in the final judgment
were advisory. Id. at 854.
The Davis Parties raised four issues in their cross-appeal. We concluded that
their first issue related to the declaration language was waived. Id. In their second
issue, the Davis Parties asserted the trial court erred by awarding the Green Parties
The jury found skydiving operations unreasonably interfered with use of the
airstrip by others beginning in March 2008, during the tenancy of Jump Out
Express, LLC. The trial court's declarations to the effect that the Davis Parties' use
of the airstrip did not unreasonably interfere with use of the airstrip by others is
supported by the jury's answer to Question No. 1. The trial court's declarations are
not inconsistent with the jury's answers, because the answers reflect the skydiving
operations that unreasonably interfered with or impaired the landowners' right to
use the airstrip, were conducted during the tenancy of Jump Out Express.
Accordingly, issue one is overruled.
Green v. Richard D. Davis, L.L.P., 593 S.W.3d 842, 846–47 (Tex. App.—Houston [14th Dist.]
2019, pet. denied).
10
attorney’s fees because they were not the “prevailing party.” See Tex. Prop. Code
Ann. § 5.006. Our court overruled this second issue, noting that in a declaratory
judgment action “the court may award costs and reasonable and necessary
attorney’s fees as are equitable and just.” Id. at 855 (quoting Tex. Civ. Prac. &
Rem. Code Ann. § 37.009). We further noted that such an award “is not dependent
on a finding that a party “substantially prevailed.” Id. (quoting Barshop v. Medina
Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996)).
In their third issue, the Davis Parties argued the trial court’s award of
attorney’s fees was erroneous because the Green Parties failed to submit billing to
support the award; our court overruled this issue, observing that “[P]roof of fees
actually incurred or paid are not prerequisites to the recovery of attorney’s fees in
Texas.” Green, 593 S.W.3d at 855. We also concluded that the Davis Parties’
fourth issue, asserting that the trial court erred in refusing to award as damages the
temporary injunction bond posted by the Green Parties, was waived because the
Davis Parties’ entire argument was based on a single conclusory statement, without
reference to any legal argument, record citations, or authority. Id.
Ultimately, our court reversed paragraphs F, H, J, L, and O of subsection 11
of the final judgment, affirmed the remainder of the judgment, and remanded the
case for “further proceedings in accordance with this opinion.” Id. at 856. The
Davis Parties filed two motions for rehearing and a motion for en banc
reconsideration; our court denied all three motions. The Davies Parties then filed a
petition for review with the Texas Supreme Court, which was also denied.
In December 2020, our court issued its mandate, informing the trial court
that we had “inspected the record and find error in the judgment. We therefore
order the judgment of the court below AFFIRMED IN PART and REVERSED IN
PART. We REMAND the cause for proceedings in accordance with the court’s
11
opinion.”
In January 2021, the Davis Parties filed their sixth amended counter-claim.
The Green Parties filed a motion to effectuate our opinion, judgment, and mandate,
asking the trial court to vacate the portions of the judgment that our court had
declared improper. On February 26, 2021, the trial court signed a clarifying order,
which stated: “This clarifying order amends the January 10, 2017 judgment. This
clarifying order merges with the January 10, 2017 judgment and constitutes the
Court’s final judgment.” In its clarifying order, the trial court found that the Davis
Parties were unsuccessful in both the court of appeals and the Supreme Court of
Texas. Accordingly, the trial court awarded $142,500 to the Green Parties:
$102,500 for trial court attorney’s fees, $25,000 for attorney’s fees incurred in the
court of appeals, and $15,000 for attorney’s fees incurred in the defending the
Davies Parties’ petition for review filed with the Supreme Court of Texas. In its
clarifying order, the trial court also vacated paragraphs F, H, J, L, and O of the
2017 judgment.
The Davis Parties filed a motion for new trial, which was overruled by
operation of law. The Davis Parties filed this timely appeal.
II. FINAL JUDGMENT
In their seventh issue, which we address first, the Davis Parties argue that we
lack jurisdiction because the trial court’s clarifying order on February 26, 2021 did
not constitute a final judgment.
“[A]ny judgment following a conventional trial on the merits creates a
presumption that the judgment is final for purposes of appeal.” Vaughn v.
Drennon, 324 S.W.3d 560, 561 (Tex. 2010). Additionally, “[a] judgment following
a conventional trial on the merits need not dispose of every party and claim for
the Aldridge presumption of finality to apply.” Id. (citing N. E. Indep. Sch. Dist. v.
12
Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966)). “If there is any doubt as to the
judgment’s finality, then finality must be resolved by a determination of the
intention of the court as gathered from the language of the decree and the record as
a whole, aided on occasion by the conduct of the parties.” Id. at 563 (internal
quotations omitted).
The trial court’s clarifying order in the present case stated: “This clarifying
order amends the January 10, 2017 judgment. This clarifying order merges with
the January 10, 2017 judgment and constitutes the Court’s final judgment.” The
trial court indicated that, in accordance with our court’s mandate, it was vacating
five paragraphs from the 2017 final judgment. Additionally, the trial court noted
that because our court affirmed the award of attorney’s fees from the 2017
judgment and because Davis was unsuccessful in the Court of Appeals and the
Supreme Court of Texas, it was awarding attorney’s fees to the Green Parties.
This was a judgment issued after a conventional trial on the merits, an
appeal to the court of appeals, and a subsequent remand. There is nothing to
indicate that the trial court did not intend to fully dispose of the entire case.
Furthermore, we note that the parties treated the clarifying order as a final
judgment. After the trial court signed the clarifying order, the Green Parties filed a
motion for new trial; filing such an order would not be necessary unless the Green
Parties believed the clarifying order to be a final judgment. See Vaughn, 324
S.W.3d at 561. Thus, we conclude that the Aldridge presumption applied in this
case, and the trial court’s clarifying order constituted a final judgment. See id.
We overrule the Davis Parties’ seventh issue.
III. DID THE GREEN PARTIES WAIVE THEIR AWARD OF APPELLATE
ATTORNEY’S FEES?
In their first issue, the Davis Parties assert that the Green Parties waived
their appellate attorney’s fees by failing to file a motion for rehearing and by
13
failing to petition the Texas Supreme Court for review. According to the Davis
Parties, a party that obtains an award of appellate attorney’s fees in the trial court
judgment is required on appeal to complain by motion for rehearing and direct
appeal, if the appellate court issues a judgment and opinion which does not award
the same attorney fees on appeal as were awarded by the trial court. We reject the
Davis Parties’ argument and conclude that there is no such requirement.
The Davis Parties cite to a single case to support their argument: Hudspeth
Cnty. Underground Water Conservation Dist. No. 1 v. Guitar Holding Co., L.P.,
355 S.W.3d 428, 434 (Tex. App.—El Paso 2011, pet. denied). However, Hudspeth
is distinguishable from the present case and does not stand for the general
proposition that a party must complain via motion for rehearing if an appellate
court does not award the identical appellate attorney’s fees awarded by the trial
court. Rather, in Hudspeth, a ranch sued a groundwater conservation district
seeking to invalidate the district’s new water permit rules. Id. at 430. After
consolidating administrative appeals, the district court upheld the validity of the
new rules and permits, awarded the ranch a refund of administrative fees, and
denied attorney fees to the District. Id. The ranch appealed, and the District filed a
cross-appeal. Id. The court of appeals held, in relevant part, that the District was
the “prevailing party” and had established entitlement to attorney’s fees, costs of
expert witnesses, and other costs under the Texas Water Code. Id. The ranch
subsequently petitioned the supreme court for review, but specifically declined to
challenge the court of appeals’ holding that the District was the prevailing party
and that it was entitled to attorney’s fees and costs. Id. The supreme court granted
the ranch’s petition for review; however, on motion for rehearing, the supreme
court noted that its opinion and judgment were limited to the issues presented on
appeal. Id. On remand, the trial court found that the District was not the prevailing
party and refused to award attorney’s fees and costs to the District; the District
14
again appealed. The court of appeals concluded that the ranch waived any
challenge to the award of attorney’s fees, costs of expert witnesses, and other costs
and prevailing party status when it failed to petition the supreme court for review
on those issues. Id.Unlike Hudspeth, in the present case, there is no waiver by the Green Parties
as to the issue of appellate attorney’s fees. The trial court awarded attorney’s fees
to the Green Parties, and it was the Davis Parties that challenged that issue on
cross-appeal. The Davis Parties argue that it was error for the trial court to award
those fees because the Green Parties were not the “prevailing party,” but our court
concluded that in a declaratory judgment action, it is within the discretion of the
trial court to award attorney’s fees as are “equitable and just.” Green, 593 S.W.3d
at 855; see Tex. Civ. Prac. & Rem. Code Ann. § 37.009. The Davis Parties then
appealed to the Supreme Court of Texas, but their petition was denied. The Davis
Parties also contend that the trial court improperly asserted appellate jurisdiction
by determining which party was successful in the prior appeals and awarding
conditional appellate attorney’s fees. But trial courts have a reasonable amount of
discretion to comply with mandates from courts of appeals. See Austin Transp.
Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 690 (Tex. App.—
Austin 1992, writ denied). The trial court was not improperly exercising appellate
jurisdiction by determining who was successful; it was within the trial court’s
discretion to make that determination in order to comply with our mandate. See id.In their first issue the Davis Parties also assert that the courts of appeal have
a “non-delegable duty” to determine which party is “successful.” Appellate courts
are required to address every issue necessary for final disposition of an appeal. See
Tex. R. App. P. 47.1. While our court should award to the prevailing party costs
incurred by the party related to the appeal, we have discretion to tax costs
15
otherwise as required by law or for good cause. Id. R. 43.4. Additionally, the Davis
parties have not cited any authority supporting this argument.
While we conclude that the Green Parties did not waive their award of
appellate attorney’s fees by their actions prior to the issuance of our opinion, Green
filed a motion for rehearing after the issuance of our opinion. In his motion, Green
explicitly states that he waives his right to recover his award of additional appellate
attorney’s fees, and requests that we modify the opinion and judgment to effectuate
his waiver. We overrule the Davis Parties’ first issue.
IV. UNSUCCESSFUL APPEALS
In their second issue, the Davis Parties claim that the trial court erred in
determining that the Davis Parties were unsuccessful in their appeals to the court of
appeals and the Supreme Court of Texas. In their third issue, the Davis Parties
argue that the trial court erred in determining that the Green Parties did not pursue
unsuccessful appeals to the court of appeals and the Supreme Court of Texas. In
their fourth issue, the Davis Parties argue that, in the alternative, both the Green
and Davis Parties were, in part, unsuccessful on appeal, and thus the appellate
attorney’s fees awarded should be offset.
A. STANDARD OF REVIEW & APPLICABLE LAW
Generally, we review a trial court’s decision to grant or deny attorney’s fees
for an abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
A trial court abuses its discretion if its decision is arbitrary, unreasonable, and
without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446
(Tex. 1997). When reviewing a trial court’s decision under this standard, we must
view the evidence in the light most favorable to the trial court’s ruling and indulge
every presumption in its favor. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438,
16
444 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Phillips & Akers, P.C. v.
Cornwell, 927 S.W.2d 276, 279 (Tex. App.—Houston [1st Dist.] 1996, no writ).
An award of appellate attorney’s fees to the appellees must be contingent
upon the appellant’s unsuccessful appeal. See Picket v. Keen, 47 S.W.3d 67, 78
(Tex. App.—Corpus Christi 2001, no pet.); Siegler v. Williams, 658 S.W.2d 236,
241 (Tex. App.—Houston [1st Dist.] 1983, no writ). To do otherwise would
penalize a party for pursuing a meritorious appeal. Schlueter v. Schlueter, 975
S.W.2d 584, 590 (Tex. 1998); Picket, 47 S.W.3d at 78. Guiding law only allows
for total recovery of the conditional appellate fees if the decision has been
“resolved in that party’s favor.” Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex.
2015).
B. APPLICATION
The Davis Parties contend that they pursued a successful appeal to the court
of appeals because our prior opinion reversed only five of the fifteen declaratory
judgment determinations. Alternatively, the Davis Parties argue that both parties
“were partially successful and partially unsuccessful in the court of appeals and the
Texas Supreme Court and the appellate fees of the parties offset.”
The Green Parties raised three issues on appeal. We overruled their first
issue. Their second and third issues challenged various paragraphs in the final
judgment. The trial court’s final judgment contained fifteen determinations of
declaratory relief, set out in paragraphs A through O of subsection 11. The Green
Parties challenged nine of those paragraphs: A, F, H, I, J, K, L, M, and O. We
sustained the Green Parties’ second issue related to paragraphs F and L, and we
sustained the third issue as it related to paragraphs H, J, and O. Thus, we sustained
five of the Green Parties’ nine challenges to the declaratory relief determinations.
17
The Davis Parties raised four issues on cross-appeal, and we denied all four of
those issues.
When our court issued its opinion in the prior appeal, the Davis Parties filed
two motions for rehearing and one motion for en banc reconsideration, all three of
which were denied. The Davis Parties also filed a petition for review with the
Texas Supreme Court, which was also denied. The Davis Parties did not prevail on
any cross-issue they raised on appeal, and their petition for review was denied,
thus, we cannot conclude that the trial court abused its discretion in determining
that the Davis Parties pursued unsuccessful appeals to our court and the Texas
Supreme Court. See Bocquet, 972 S.W.2d at 21.
Concerning the appeal to our court, however, the Green Parties were only
partially successful. Ventling, 466 S.W.3d at 156. Stated differently, while the
Davis Parties were wholly unsuccessful on all of their affirmative issues, the Green
Parties were partially successful and partially unsuccessful. Thus, we agree with
the Davis Parties’ fourth issue in that both parties were partially unsuccessful;
however, we disagree that their conditional appellate fees offset each other
because, as mentioned above, the Davis Parties were completely unsuccessful
while the Green Parties were partially successful and partially unsuccessful.
In this scenario, we would typically reverse the award of conditional
attorney’s fees for appeal to this court, and remand to the trial court for a
determination of the reasonable amount of appellate attorney’s fees to be awarded
to the Green Parties. See Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d
180, 188 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (remanding
appellate attorney’s fees to the trial court for segregation of fees for successful
claims, or to demonstrate why segregation is not required); Taylor Morrison of
Tex., Inc. v. Fulcher, No. 13-20-00332-CV, 2022 WL 3092553, at *7 (Tex. App.—
Corpus Christi–Edinburg Aug. 4, 2022, no pet.) (mem. op.) (remanding to trial
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court on the “issue of conditional appellate attorney’s fees for a determination of
the reasonable amount to be awarded to appellee given that appellant was partially
successful in this appeal”).
However, as noted above, in his motion for rehearing, Green has now
waived his right to recover any additional attorney’s fees. Therefore, we do not
need to remand for a determination of reasonable attorney’s fees. Instead, we
modify the judgment to delete the award of conditional appellate attorney’s fees in
the amount of $25,000 to the Green Parties. We overrule the Davis Parties’ second
and third issues, but sustain their fourth issue in part.
V. GENERAL VS. LIMITED REMAND
In their fifth issue, the Davis Parties argue that our court’s prior opinion
resulted in a general remand, not a limited remand, to the trial court, entitling the
Davis Parties to amend their counterclaim upon remand. In their sixth issue, the
Davis Parties claim that res judicata and the doctrine of finality do not prevent
them from amending their claims to pursue supplemental declaratory relief.
A. STANDARD OF REVIEW & APPLICABLE LAW
“Generally, when an appellate court reverses and remands a case for further
proceedings, and the mandate is not limited by special instructions, the effect is to
remand the case to the lower court on all issues of fact, and the case is reopened in
its entirety.” Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729, 734
(Tex. App.—Houston [14th Dist.] 2011, pet. denied). In interpreting the mandate
of an appellate court, courts look not only to the mandate itself but also to the
opinion of the court. See Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d
392, 409 n.31 (Tex. 2009) (Brister, J., concurring) (noting that where a judgment
refers to further proceedings consistent with the court’s opinion, “[t]he nature of
the judgment is therefore determined by an inspection of the opinion”); Simulis,
392 S.W.3d at 734.
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B. APPLICATION
The Davis Parties argue that this court’s opinion and judgment constituted a
general remand and reopened the case on all issues, allowing for the amendment of
their counterclaims. However, this issue is moot. Assuming without deciding that
we issued a general remand and that the Davis Parties were allowed to amend their
pleadings, the trial court nevertheless issued a clarifying order on February 26,
2021, which constituted a final judgment, as we concluded above in addressing the
Davis Parties’ seventh issue. The Davis Parties filed their sixth amended
counterclaim in January 2021. Therefore, regardless of whether the Davis Parties
were permitted to amend their counterclaims, the trial court issued a final
judgment, disposing of all claims and parties, including any new or additional
claims raised by the Davis parties in their sixth amended counterclaim. See
Vaughn, 324 S.W.3d at 561.
The Davis Parties additionally argue that res judicata and the doctrine of
finality do not bar their supplemental claims following remand. This issue is also
moot. The Green Parties never asserted res judicata or the doctrine of finality in an
affirmative motion to the trial court. The Davis Parties raised the issue, sua sponte,
in their response and objection to the Green Parties’ motion to strike the Davis
Parties’ sixth amended counterclaim. There is no evidence that the trial court ever
considered or ruled on the issues of res judicata or the doctrine of finality; the trial
court did not rule on the motion to strike. See id.
In summary, after the Davis Parties filed their sixth amended counterclaim,
the trial court issued a final judgment, impliedly disposing of all claims and
counterclaims, including any amended counterclaims, between the parties.
Accordingly, we overrule the Davis Parties’ fifth and sixth issues.
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V. CONCLUSION
We modify the judgment to delete the award of conditional appellate
attorney’s fees in the amount of $25,000 to the Green Parties. We affirm the
remainder of the trial court’s judgment as modified.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Hassan, and Poissant.
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