Perry D. Felix D/B/A Han's Laser Technology Co. v. Prosperity Bank
01-14-00997-CV
| Tex. App. | Dec 17, 2015Background
- Felix maintained a deposit account with Prosperity Bank governed by a written deposit agreement requiring prompt examination of statements and specific notice procedures for unauthorized transactions (60-day bar to claims for items on statements).
- Felix discovered and later sued over several purportedly unauthorized outgoing wire transfers that had been reflected on monthly statements in 2010 (latest statement: Dec. 31, 2010). He sued Prosperity Bank in Dec. 2013.
- Prosperity Bank counterclaimed for breach of the deposit contract and sought attorney’s fees; it moved for traditional summary judgment arguing Felix failed to timely notify the bank per the contract.
- The trial court granted summary judgment for Prosperity Bank on all claims but awarded no damages or attorney’s fees.
- On appeal, Felix failed to file an appellate brief and his appeal was dismissed for want of prosecution; Prosperity Bank cross-appealed the denial of attorney’s fees under Chapter 38.
- The court held Prosperity Bank prevailed on its breach-of-contract claim (enforcement of covenant not to sue) but remanded the attorney’s-fee issue because the bank’s affidavits did not conclusively prove the reasonable hours spent on specific tasks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Felix's appeal should proceed after he failed to file a brief | Felix did not provide arguments (no brief filed) | Prosperity: dismissal for want of prosecution appropriate | Appeal dismissed for want of prosecution for Felix |
| Whether Prosperity may recover attorney’s fees under Chapter 38 after prevailing on breach-of-contract counterclaim without monetary damages | Felix: (implicit) no fees because no damages awarded | Prosperity: enforcement of covenant not to sue (specific performance) is a non-monetary benefit of value that supports Chapter 38 fees | Court: Prevailing on enforceable contract right (specific performance) can support Chapter 38 fees |
| Whether summary-judgment evidence conclusively established reasonable attorney’s fees amount | Felix: bank’s proof insufficient and too general | Prosperity: submitted two attorney affidavits with rates and general descriptions of work | Court: Affidavits lacked time spent on specific tasks; proof not conclusive—remand to determine fees |
Key Cases Cited
- Holland v. Wal‑Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999) (availability of attorney’s fees is a question of law)
- MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) (state’s American Rule and contractual/statutory fee prerequisites)
- Green Int’l, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997) (no Chapter 38 fees when breach claimant recovers zero damages)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (Chapter 38 requires both prevailing party and recovery of damages or equivalent value)
- El Apple I Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) (lodestar method and required proof elements for reasonable fees)
- Long v. Griffin, 442 S.W.3d 253 (Tex. 2014) (attorney affidavits must show time spent on specific tasks to support fee awards)