Edom Corner, LLC and Earl Berry, Jr. v. It's the Berry's, LLC, 12-14-00365-CV

Background

Edom Corner, LLC (landlord) and It’s the Berry’s, LLC (tenant) litigated repeatedly (2006–2008) over a retail lease; multiple suits, garnishments, appeals, and a mandamus petition followed.
In the district-court bench judgment, the court awarded possession to Edom Corner and denied ITB’s claims for declaratory relief and attorney’s fees; portions were later severed/dismissed on jurisdictional grounds on appeal (Amarillo). ITB’s fee claims were never awarded on the merits in the prior litigation.
After that multi‑case Litigation concluded, ITB sued Edom Corner (and later added Earl Berry individually) seeking recovery of attorney’s fees incurred across the prior Litigation.
Appellants moved for summary judgment arguing claims for fees were barred by res judicata/collateral estoppel, Berry is not individually liable under the lease or Texas Business Organizations Code, and ITB failed to present competent summary-judgment evidence of reasonable fees.
The trial court ruled in favor of ITB (finding ITB the prevailing party and rejecting res judicata/collateral estoppel defenses) and awarded attorney’s fees; appellants appealed.

Issues

Issue	Plaintiff's Argument (ITB)	Defendant's Argument (Edom/Berry)	Held (Trial Court)
1. Whether ITB was the "prevailing party" entitled to fees	ITB contends it prevailed in the Litigation and is entitled to fees.	Edom/Berry: ITB lost fee claims in prior proceedings; appellate decision affirmed denial — ITB did not materially change the legal relationship and thus did not prevail.	Trial court found ITB was the prevailing party.
2. Whether res judicata/collateral estoppel bar ITB’s fee suit	ITB argues jurisdictional defects in prior proceedings prevent preclusion of its fee claims.	Edom/Berry: ITB’s fee claims were raised or were compulsory in prior suits and were denied; therefore precluded.	Trial court held res judicata/collateral estoppel did not bar ITB’s suit.
3. Whether Berry is individually liable	ITB asserts Berry, as a member and signer, is individually liable under the Lease.	Edom/Berry: Lease language doesn’t impose personal liability; Texas Bus. Orgs. Code shields members unless company agreement provides otherwise.	Trial court found Berry individually liable.
4. Whether summary judgment awarding ITB attorney’s fees was proper	ITB sought fees and submitted prior affidavits; sought declaratory determination and fees.	Edom/Berry: ITB failed to provide proper summary-judgment evidence with its final motion; appellants’ affidavit raised fact issues; statutory law requires recovery of damages before fees under Tex. Civ. Prac. & Rem. Code §38.001.	Trial court granted ITB summary judgment for fees.

Key Cases Cited

King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (standard for reviewing summary-judgment rulings when both parties move)
CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568 (Tex. 1998) (appellate consideration when both parties move for summary judgment)
Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008) (preclusion: cannot relitigate a claim decided by a court of competent jurisdiction)
Green Int’l, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997) (attorney’s fees under contract require recovery of damages to be entitled to fees)
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) (interpretation of statutory fee recovery language)
In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168 (Tex. 2013) (statutory construction on fee recovery requirements)
Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (valid contract claim without damages precludes recovery of contractual attorney’s fees)
Insurance Co. of the State of Pennsylvania v. Oraco, 170 S.W.3d 129 (Tex. App. — San Antonio 2005) (defining a "prevailing party" as one vindicated by judgment)
Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex. App. — Dallas 2007) (effects of nonsuit on prevailing-party analysis)