No. 05-16-00864-CV.


Court of Appeals of Texas, Fifth District, Dallas.

Attorney(s) appearing for the Case

W. Alan Wright , for Andra Group, L.P., Appellee.

Coyt Johnston, Jr. , Donald Mark Steadman , Charles "Chad" Baruch , for Mor-Pak Specialties, Inc., Appellant.

Before Justices Lang, Myers, and Stoddart.


Opinion by Justice DOUGLAS S. LANG.

Appellant Mor-Pak Specialties, Inc. appeals from the trial court's "Final Order" on its motion for summary judgment in which the trial court denied appellant's request for attorney's fees. In a single issue on appeal, appellant asserts the trial court erred in denying its request for attorney's fees because section 38.001 of the Texas Civil Practice & Remedies Code should be interpreted to allow for the recovery of attorney's fees against a limited partnership.

We decide against appellant. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See TEX. R. APP. P. 47.2, 47.4.

I. Factual and Procedural Context

Appellant sold boxes to appellee pursuant to a sales contract. Appellant did not collect any sales taxes from appellee in connection with their sales transactions because appellee made a representation that it had obtained a valid Texas Resale Certificate, exempting it from paying such taxes. After an audit, the Comptroller disallowed appellee's Resale Certificate and held that the company was not entitled to any sales tax exemptions. Appellant then sent appellee a written demand seeking payment of an outstanding sales tax balance of $52,974.09. Appellee did not pay.

On July 1, 2015, appellant sued appellee for breach of contract, arguing that Texas law allows a seller to recover unpaid sales tax as though it were the original sales price. See TEX. TAX CODE §151.152. On March 28, 2016, appellant filed a "Motion for Summary Judgment." In this motion appellant sought to recover costs and attorney's fees from appellee, in addition to actual damages for breach of contract. On May 17, 2016, the trial court granted summary judgment in part for appellant, on its claims for statutory sales tax and breach of contract and awarded appellant actual damages, prejudgment interest, costs, and postjudgment interest, if necessary. However, the trial court reserved the issue of attorney's fees for further argument. The trial court instructed the parties to brief the issue of whether appellee, a limited partnership, is liable for appellant's attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code. Following a hearing, on June 20, 2016, the trial court signed a "Final Order on Plaintiff's Motion for Summary Judgment," denying the request for attorney's fees. Appellant now appeals the denial of its request for attorney's fees.

Before oral argument in this case, appellant filed a letter with the Court, acknowledging that this Court's recent opinion in CBIF Ltd. Partnership v. TGI Friday's Inc. is adverse to appellant's position. No. 05-15-00157-CV, 2017 WL 1455407, at *25 (Tex. App.-Dallas Apr. 21, 2017, no. pet. h.).

II. Motion to Dismiss

As a preliminary matter we first address appellee's "Motion to Dismiss Appeal and for Rule 45 Damages" filed on November 2, 2016.

In their motion to dismiss, appellee argues this case is moot because appellee "has fully and finally satisfied," and "appellant has unconditionally released and discharged," its claim for monetary damages. Appellant, in its November 14, 2016 response, argues the case is not moot.

After the trial court signed its "Final Order," appellant's attorney sent appellee's attorney a calculation of what was owed, which included prejudgment interest and court costs. Appellee paid that amount. Appellant's attorney then signed an "Acknowledgment of Satisfaction of Judgment." This instrument included the following statement: "Plaintiff, in consideration of [Defendant's] payment of all sums due and owing under the Final Order, releases and discharges Defendant from the Final Order, and declares the Final Order satisfied."

Appellee argues the above language indicates appellant released the judgment, extinguishing any claim for attorney's fees, and rendered moot this appeal regarding attorney's fees. We disagree.

First, we note that this Court may refer to evidence not in the trial court record to determine our jurisdiction. See Harlow Land Co. v. City of Melissa, 314 S.W.3d 713, 716 n.4 (Tex. App.-Dallas 2010, no pet.) (citing TEX. GOV. CODE ANN. § 22.220(c) (West 2015); Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (affidavits outside record cannot be considered by appellate court for any purpose other than determining its own jurisdiction); Kenseth v. Dallas County, 126 S.W.3d 584, 593 (Tex. App.-Dallas 2004, pet. denied)). For that limited purpose, on this record, we review the affidavit of appellee's attorney and letters between counsel attached to the affidavit, which were submitted as part of the motion to dismiss filed in this Court. One letter, in particular, is helpful. That letter, dated June 7, 2016, addresses the payment of funds due as a result of the trial court's "Final Order." It states the following:

. . . . Dear Mark: Following up on our telephone conversation of this afternoon, enclosed is Andra's Check No. 92736 payable to Mor-Pak in the amount of $52,974.09. As we discussed, this payment is for the principal amount of the unpaid sales tax owed by Andra. This payment is made now as a gesture of Andra's good will and is not intended as a full and final settlement of the matters in dispute in the suit. As we also discussed, Andra desires to continue discussions regarding settlement of the attorney's fees and other remaining issues in the hope of reaching a full and final settlement of the case. Very truly yours, W. Alan Wright

(Emphasis added). Appellant cites the above letter in its response to appellee's motion to dismiss. This letter demonstrates that it was understood between the parties that appellee's payment and appellant's "Acknowledgement of Satisfaction" were not intended to be a full and final release. Accordingly, on this evidence, we must conclude the appeal of the issue of attorney's fees is not moot. Consequently, we deny appellee's motion to dismiss.

III. Availability of Attorney's Fees

A. Standard of Review and Applicable Law

"The availability of attorney's fees under a particular statute is a question of law for the court." Brinson Benefits, Inc. v. Hooper, 501 S.W.3d 637, 641 (Tex. App.-Dallas 2016, no pet.) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999)). We therefore review the issue of whether appellant was entitled to an award of attorney's fees under chapter 38 of the civil practice and remedies code de novo. Id. (citing El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999)).

This Court has already stated that, "Under the plain language of section 38.001, a trial court cannot order limited liability partnerships, limited liability companies, or limited partnerships to pay attorney's fees." CBIF Ltd. Partnership, 2017 WL 1455407, at *25 (quoting Varel Int'l Indus., L.P. v. PetroDrillbits Int'l, Inc., No. 05-14-01556-CV, 2016 WL 4535779, at *7 (Tex. App.-Dallas Aug. 30, 2016, pet. denied) (mem. op., not designated for publication)).

B. Application of Law to the Facts

In its sole issue, appellant argues the trial court erred by failing to award it attorney's fees and asserts that chapter 38 of the civil practice and remedies code should be interpreted to allow for the recovery of attorney's fees against a limited partnership. Appellee argues that the plain language of this statute does not allow a trial court to order a limited partnership to pay attorney's fees. We agree with the appellee.

The record shows, and it is undisputed, that appellee, Andra Group, LP, is a limited partnership. Because attorney's fees are not recoverable from limited partnerships under chapter 38 of the civil practice and remedies code, we conclude that appellant cannot recover attorney's fees from appellee in this case. CBIF Ltd. Partnership, 2017 WL 1455407, at *25.

Accordingly, the trial court did not err in denying appellant's request for attorney's fees.

IV. Conclusion

We affirm the trial court's judgment.


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

It is ORDERED that each party bear its own costs of this appeal.


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