Arrow Marble, LLC, Arrow Mirror and Glass, Inc., and Equicap Investments, LLC v. Estate of Rodney B. Killion, 441 S.W.3d 702

After Rodney Killion died, his daughter (as independent executor) sued Arrow Mirror & Glass and Equicap under the Texas Theft Liability Act (TTLA); Arrow Marble intervened with a breach‑of‑contract claim against the Estate.
At trial the Estate failed to appear; the trial court dismissed the Estate’s claims with prejudice for want of prosecution and denied the Estate any relief.
Equicap proceeded on its breach‑of‑contract counterclaim and presented attorney Zimmerman’s testimony that he had billed $16,500 to date and sought $8,000 for appellate work (aggregate $24,500); no bills or segregation testimony were offered.
The trial court denied Equicap any attorney’s fees. Equicap moved for reconsideration and appealed, arguing the TTLA mandates fees for the prevailing party and that fee‑segregation was waived.
The Estate did not file an appellate brief or challenge the dismissal-with‑prejudice below.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Equicap is entitled to mandatory attorney’s fees under the TTLA as a prevailing party	The Estate implicitly contends denial was proper because the claim was dismissed for want of prosecution and fees are discretionary or not owed here	Equicap argues TTLA §134.005(b) mandates fees to any party who "prevails" and that dismissal with prejudice makes it a prevailing defendant	Court: Reversed—dismissal with prejudice transformed the legal relationship (res judicata), so Equicap prevailed under TTLA and is entitled to fees
Whether Equicap waived the right to segregate fees by failing to present segregated billing or by lack of objection	The Estate’s absence below means no segregation request or objection was required	Equicap contends lack of objection means trial evidence of aggregate fees should be accepted and rendered	Court: No waiver for Equicap; failure to segregate does not preclude recovery but requires remand for factfinder to determine segregated, reasonable TTLA fees (trial court erred denying all fees)

Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (statutes stating a party "shall be awarded" fees create mandatory fee awards)
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) (dismissal with prejudice has res judicata effect and alters parties' legal relationship)
Mossler v. Shields, 818 S.W.2d 752 (Tex. 1991) (dismissal with prejudice functions as a final judgment on the merits)
El Paso Pipe & Supply v. Mountain States Leasing, Inc., 617 S.W.2d 189 (Tex. 1981) (erroneous dismissal with prejudice must be directly attacked to avoid finality)
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (orders dismissing with prejudice for want of prosecution are voidable and must be challenged to prevent finality)
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (reasonableness of fee awards is a fact question; jury cannot award zero where some evidence supports fees)
Cricket Commc’ns, Inc. v. Trillium Indus., Inc., 235 S.W.3d 298 (Tex. App.—Dallas 2007) (dismissal without prejudice does not make defendant a prevailing party)
Williams v. TDCJ-Inst. Div., 176 S.W.3d 590 (Tex. App.—Tyler 2005) (dismissal with prejudice has res judicata and collateral estoppel effect)